In making decisions about medical treatment for patients who are “incapacitated and alone,” as an influential American Bar Association study once described them, there is a tension among medical judgment, ethics and the law that may be necessary but can do harm to a patient’s best interests.
A judge’s comment from a 2015 California Superior Court ruling captures this tension well: “The court acknowledges that this order will likely create problems in how many skilled nursing facilities currently operate. … The court has considered this burden and weighed it against the due process concerns, and finds that the due process rights of these patients is more compelling. The stakes are simply too high to hold otherwise.”
In other words, however justifiable, consideration of best interests of these patients and the medical judgment of those directly caring for them carried less weight than due process rights. This is a set-up for medical indecision, poor care and moral distress among caregivers.
The patient and care team alike deserve better. And so the question becomes, is it possible that patient best interests, the ethical principle of respect for persons, and the legal guarantee of due process might each be honored? If so, how?
In an imperfect system, the best process increasingly is seen to be a multidisciplinary decision-making committee within the institution, working from clear policy guidelines and including members of the institutional ethics committee.
The Community Ethics Committee, of which I am a longtime member, has just completed its report on Medical Decision-Making for Unknown & Unrepresented Patients, submitting it to the ethics leadership of Harvard Medical School and posting it on this website (see PUBLICATIONS).
For the first time, I’ve felt it necessary to take serious issue with a CEC report.
The views, opinions and positions expressed by these authors and blogs are theirs and do not necessarily represent that of the Bioethics Research Library and Kennedy Institute of Ethics or Georgetown University.