Strategies for Medical Decision Making for Unrepresented Incapacitated Patients

Felicia Cohn, Leah Eisenberg, and Joan Henricksen delivered a great panel presentation at ICCCEC.  This is not a summary but just a list of eight observations.

1.  It is not sufficient to have the mechanism make specific treatment decisions as they arise.  The patient needs a plan.

2.  Most decisions are “easy.”  On the one hand some interventions are low-risk, high reward, like setting a broken leg.   Others are very high burden, low benefit.

3.  The Mayo Clinic tries to get a court appointed guardian from both the hospital’s county and the patient’s home county.  But they have had ZERO SUCCESS over the past four years.  The system explains the patient is safe in the hospital, the guardian would just follow the treatment team anyway, and it is too expensive.

4.  In Orange County, getting a public guardian can take 6 months and is often denied in any case.

5.  Kaiser has few unrepresented patients, because its patients are “members” of the system.

6.  There is a strong bias in favor of blood relatives, even when they are clearly inappropriate surrogates, even when the law recognizes other surrogates.  Sometimes, hospitals even “badger” relatives into serving as a surrogate when they barely know or care about the patient.

7.  A crisp example of a reason not to permit the attending herself to make the decision is the physician’s own religion.

8.  The patient’s bar drinking buddy may not know enough about the patient to exercise substituted judgment, but that does not mean a pure objective best interest approach is right.

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.