Healthcare proxies and surrogates can ensure incapacitated patients receive treatment in accordance with their wishes. Unfortunately, identifying the correct decision-maker can prove quite challenging. “Surrogacy laws differ substantially between states, and house officers rarely receive sufficient training on the subject,” explains Jacob M. Appel, MD, JD, MPH, HEC-C, director of ethics education in psychiatry at Icahn School of Medicine at Mount Sinai.
Thus, physicians often are uncertain about the appropriate decision-maker, what the basis of their decisions should be, and how much effort must be rendered to identify the correct person.
“Sometimes, proxies or surrogates aren’t aware of their role in advance. Some may even refuse to serve because of mistaken beliefs regarding liability,” adds Appel, attending physician at Mount Sinai Health System.
Some proxies even fear that if they have not made decisions as the patient would have wanted (despite acting in good faith), they could be sued for mistakenly disregarding the patient’s wishes. Ethics consults often are called because of problems like these, with many cases centering on difficulty identifying the correct surrogate.
“It is a frequent occurrence in the hospital, and a question that arises on a regular basis,” Appel reports.
Even family members may disagree about the correct decision-maker. “Another related question may arise if there are suspicions that the surrogate is not acting in good faith, or is not trying to effectuate the patient’s prior wishes,” Appel notes.
Medical residents know little about surrogate consent laws, according to the results of a recent study.1 Researchers surveyed 35 medical residents in Indiana hospitals in 2018. Only 22.9% knew the default state law did not create a hierarchy for settling disputes. All reported “little” or “some” knowledge of laws on surrogate decision-making. Only 43% recalled receiving some relevant training during their residency.
“Every medical school and residency program should train students and house officers on the basics of capacity and third-party decision-making,” Appel suggests.
Ethicists can play an important role in educating clinicians about how to identify appropriate decision-makers and the roles proxies and surrogates ought to play in patient care. “Correctly identifying the appropriate decision-maker can prevent patients from having their values undermined,” Appel says.
Equally important is ensuring providers know where to go for help if such questions arise. “Depending on the nature of the concern, clinicians may wish to turn to hospital ethicists, ethics committees, legal teams — or all three — to resolve questions around third-party decision-making,” Appel says.
Ignorance of surrogate decision-making laws persists despite decades of education, according to Kenneth W. Goodman, PhD, FACMI, FACE, director of the University of Miami Miller School of Medicine Institute for Bioethics and Health Policy. “Reminders and updates are essential to ensure that clinicians know the responsibilities of surrogates and proxies and the differences between them,” Goodman says.
Too often, clinicians misunderstand what it means to be a legally authorized representative. “Family member” can be a meaningless label when there are several present. “We err when we appoint the oldest — or loudest — adult child, for instance, as proxy,” Goodman shares.
Most troublesome is clinicians’ insistence that surrogates or proxies must “make a decision.”
“In fact, there is no decision to make,” Goodman explains. “Surrogates and proxies must signal what the patient would want if capacitated, and such preferences do not include the right to demand nonbeneficial treatment.”
REFERENCE
- Bartlett S, Fettig LP, Baenziger PH. Indiana medical residents’ knowledge of surrogate decision making laws. Int Q Community Health Educ 2021 Mar 22;272684X211004737. doi: 10.1177/0272684X211004737. [Online ahead of print].
Ethicists can educate clinicians about how to identify appropriate decision-makers and the roles proxies and surrogates ought to play in patient care. Equally important is ensuring providers know where to go for help if such questions arise.
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