Persons with mental capacity have the right to make their own medical decisions. When an adult patient lacks mental capacity on a permanent basis, the issue of surrogacy is most important in deciding appropriate care.

Ideally, we should all designate someone to be our healthcare agent by completing an Advance Health Care Document. If we have not completed this form and are in the hospital, we can designate a surrogate by informing a member of the hospital staff who we would like to be our agent if we lose capacity. However, when the doctor transcribes this information into our medical record, it will be valid solely for that hospitalization.

When necessary, it is best that the patient designate one person to be her surrogate. Complications may arise when two or more people find themselves in the position of speaking for her. Each party may have diametrically opposed opinions about therapy. This can lead to argument and even schism between family members.

Generally, if we lose capacity and don’t have a surrogate agent while we are hospitalized, it is up to the physician to determine the most appropriate person to guide the direction of our care. Many states mandate a definite hierarchy for the doctor to follow such as: the patient’s spouse; followed by an adult child; parent; adult sibling; significant other; or a friend. California law does not codify such a sequence at the time of this writing. In California, the physician chooses the person who is concerned for our welfare and has knowledge about our previously expressed preferences regarding treatment. Appropriate surrogates must:

  • Be in the best position to know our preferences.
  • Be concerned for our welfare.
  • Have expressed an interest in us by visits or inquiries during hospital stay.

In California, even if a surrogate has been appointed, the physician can reject a possible surrogate if:

  • There are reasons of conscience.
  • The surrogate makes requests contrary to hospital policy.
  • The surrogate makes requests for medically ineffective health care.
  • The surrogate makes requests for care contrary to medically acceptable health care standards.

The surrogate’s decisions must be in the patient’s best interests when considering:

  • The patient’s relief of suffering.
  • The patient’s preservation of function.
  • The patient’s quality and extent of sustained life.
  • The degree of intrusiveness, risk, or discomfort of treatment to the patient.
  • The impact on those closest to the patient.

Where there is opposition regarding available treatment, an ethics consultation would be helpful to clarify the issues at hand. The ethics consultant must remain neutral. The skill of active listening coupled with respect toward all speakers can change a no-win situation into a win-win for the patient and surrogate.

Often a formal ethics case conference may be necessary to help the surrogates/family/staff in this trying time. When the facilitator restates the position held by each participant, he shows he is paying attention to that person, all the while observing the speaker’s facial expressions and body language. The facilitator may ask: I notice you seem concerned. Do you have anything to add? Questions like this promote dialogue rather than one individual overriding the goal of sharing information.

For a compromise to occur in the face of tension, the facilitator and all participants must be reminded of their purpose: they are gathered together in order to listen with intent to create a plan that is best for the patient. Hopefully, this would be in a way the patient would want if she could speak for herself.

We must always remember that the patient comes first.

For insights and case studies on how to improve doctor-patient interaction, I invite you to read: “We Can, but Should We? One physician’s reflections on end of life ethical dilemmas.” Information on this book can be found at:





Our patient’s ability to understand and respond to a specific question at a given time determines his mental capacity. In California, the courts do not decide on medical capacity. State law presumes that a patient has capacity to make medical decisions unless a physician demonstrates otherwise.

One’s level of capacity will depend on the questions that are asked. For example, a mentally challenged patient could have the capacity to appoint a surrogate decision-maker, but not to be able to decide on complex therapy.

There are ways to maximize the patient’s facility to respond to the questions asked. Medical personnel could do well to take into account the time of day or night the patient is more awake. It is also wise to note the need to regulate external impediments such as noise or light and to adjust the timing of mind-numbing medications. Even slight improvement of mental status may allow the patient to express his own wishes about the extent of his medical care.

Both the physician and family can assess the following areas in determining a patient’s capacity for informed consent by noticing if the patient:

  • Understands what is wrong and what the proposed treatments are.
  • Appreciates the benefits and risks of different proposed treatments or failure to treat.
  • Discerns the medical information and relates this information to his personal values.
  • Expresses his wishes and is able to communicate them.

It is difficult for an extremely ill patient to think in complex detail when asked if he has any questions. His response may simply be:

  • Am I going to die?
  • How long do I have left to live?
  • Can you cure me?
  • Can you take away my pain?

When we hear these questions we have an opportunity to answer them with simplicity and truth. This can lead to more in depth discussions regarding the patient’s wishes and stand a better chance of directing his care. I find even if a patient enters the hospital alert and oriented, he may develop confusion as his illness deteriorates. This is more reason to discuss the issues early upon admission.

In circumstances where the doctor feels she lacks expertise in determining capacity, she can obtain a psychological consultation. In rare situations, the courts can step in to determine a patient’s global competency or incompetency. However, because this process is both costly and lengthy, the legal profession prefers physicians to handle capacity issues in the hospital. In difficult cases, the physician or family may want to ask the hospital’s bioethics committee for advice.

The medical record is a living document with copious documentation. Physicians often ignore previous hospitalization records because they are difficult to locate, and when found, are often voluminous.

If our patient does not have capacity and there are no friends for family available to speak for him, it is helpful to search prior medical records for help in discovering what our patient might want done, if he could speak for himself. We are able to utilize the retrospectoscope when we review these records. This apparatus is an ethereal medical instrument that we all use in medicine, but cannot find in our little black bag. We find it packaged with reflection upon our own experience and up to date knowledge. The retro portion allows us to look back on the patient’s past experiences. This allows us to discover easily missed clues and enlighten the direction of treatment.

Unfortunately, the plethora of routine data buried in the chart may obscure important findings. I hope that future versions of the electronic medical record will speak to this problem and allow for easy retrieval of information to help streamline future care of our patients.

For insights and case studies on how to improve doctor-patient interaction, I invite you to read: “We Can, but Should We? One physician’s reflections on end of life ethical dilemmas.” Information on this book can be found at:



Goals of Therapy: Where do we go from here?

We all have unique life goals that depend on an infinite number of factors that touch each of us throughout our life. Often we ignore thinking about our dying. These thoughts raise our defenses. We don’t want to face the inevitable of suffering, losing control, or surrendering our will to the dying process.

One’s end of life goals may vary from:

  • I don’t want to die. Do everything you can to keep me alive.
  • I want to be alert to the end. Let me be with my family, hold their hands, and kiss their cheeks.
  • I want to be pain free even if that means you have to put me into a deep sleep as my death approaches.
  • Let me end it all now. Give me a magic drug that will send me to instant oblivion.


When walking on the road toward our loved one or patient’s death, we need to know their desires when medical choices are available. When she has the capacity to make her own decisions, we need to ask her what she wants us to do for her. Formulating her goals is not easy. Not only do they depend upon the fabric of her life, but also they often change over time as her medical condition evolves and different options present themselves. Ongoing communication is essential.

There are circumstances when final wishes cannot be honored. A patient’s failing mental condition coupled with a lack of any legal papers expressing her wishes and no friends or family puts the burden on the medical staff to create an appropriate goal of treatment for her.

It becomes even more difficult when the staff is faced with a dying patient without capacity whose dysfunctional family consists of vocal members who demand opposing types of treatment for her. Some may insist on allowing her to have a natural death whereas others demand continued full treatment until a miracle occurs.

The California Probate Code makes it clear that a physician or hospital is not required to provide health care contrary to generally accepted health care standards and can decline a request for reasons of conscience. It is up to the staff to develop a plan that is both safe and appropriate. At these difficult times, it is helpful to ask the hospital ethics committee to bring together a community of concern consisting of the appropriate members of the staff and patient’s family. This group can participate in a case conference, listen to each other, and establish a treatment plan for her. It is important for both family members and medical personnel to avoid superimposing their own individual preferences on their loved one or the patient. They must ask themselves, what are the desires of our wife, husband, mom, dad, patient?

These types of difficulties can be avoided if all of us, whether we are healthcare workers or lay people, consider how we want to spend the rest of our life and share these thoughts verbally and in writing with our physician and loved ones before we lose our capacity to make our own decisions. We never know when we might be in an automobile accident or have a sudden catastrophic health event occur to us. All adults over the age of 18 should have an Advance Health Care Document.

For insights and case studies on how to improve doctor-patient interaction, I invite you to read: “We Can, but Should We? One physician’s reflections on end of life ethical dilemmas.” Information on this book can be found at:


FIDELITY: honesty is the best policy

Fidelity is the value of being faithful or loyal in our dealings with patients. The professional staff wants to honor their patient’s wishes. In order to do that, we need a foundation upon which to base appropriate treatment plans. Ideally, we look to the capable patient for direction. It is more difficult if she does not have capacity. In that situation, we need to discover if she had previously filled out a legal document containing her wishes. This could be an Advance Health Care Document (AHCD), Physician Order for Life-Sustaining Treatment (POLST), or a living well.

Fidelity in medicine is more than just telling the truth; it is accepting the beliefs and behaviors of our patient. This is especially true when those of the family, staff, and institution differ from the patient’s views. When well-meaning people force their own issues and desires into the treatment options, they can override those of the patient.

A physician has a responsibility to balance what his patient wants done with what is medically, legally, and ethically appropriate. The doctor must explain the reasoning behind the offered therapy in a truthful and direct manner and in a way that his patient and family can understand.

Not to inform a patient of her diagnosis, treatment, or prognosis is a form of deceit by all involved: family and professionals. These secrets may well promote distrust and undermine the last wishes of the patient who may become isolated from intimate and much needed support.

In a situation where her family insists on not telling their elderly grandmother she has terminal cancer, they are forced to create false explanations for her pain and weight loss. When further evidence of the body shutting down occurs, these stories no longer hold. To keep the secret masks the integrity of all professionals and family alike. In truth, it is most likely that the patient knows the seriousness of her diagnosis. Were she accidently to hear the truth from whispered comments, she would question the veracity of those whom she has put her trust when she is most dependent and vulnerable. As my physician father once told me, “When you tell the truth, you do not have to question what you said.”

There are times when a distressed patient may choose not to be informed regarding the bad news of her declining status. Then, she must choose an individual to receive and convey this information to loved ones.

Another patient may say, “Don’t tell my family that I know I am dying. They don’t think I understand what is going on and they don’t want me to worry.” It is best to gently suggest to the patient that she does not have to protect her family from her knowing the truth. Once the patient and her family are relieved from the deception, they may openly grieve together and comfort their loved one in her last days.

I have found that care conferences are invaluable in pooling the expertise of doctors, nurses, and spiritual counselors with the questions and concerns of patient and family. The review of current medical findings and options for further care opens discussion that often leads to understanding by all and can be a vehicle of comfort and support during a most difficult time.

Changes in medical and societal thought have occurred during the past few decades regarding the concept of patient self-determination. The courts have repeatedly upheld the understanding that patients with capacity, or their surrogates, have the right to accept or refuse any form of medical care if the burdens of the treatment outweigh the benefits from the patient’s point of view. For the medical community to do otherwise is considered a form of battery, unless the courts order that therapy.

Where life and death issues are involved, we, as caregivers, must remember that a patient’s spirituality awakens during the dying process. It could supersede the direction of medical treatment.

For insights and case studies on how to improve doctor-patient interaction, I invite you to read: ˆWe Can, but Should We? One physician’s reflections on end of life ethical dilemmas.” Information on this book can be found at:



JUSTICE: sometimes it is hard to be impartial

The value of justice encompasses fairness and equity. It invites us to welcome the stranger in our midst who has a story to tell, a story that reveals a depth beyond the hospital bed and room number. Often, these stories lay buried by the stresses of our patient’s illness and the strangeness of the hospital setting. It is for a caregiver to have a mistaken first impression of his patient. The truth is that there is always more than one’s eye or intuition can see.

Physicians and nurses desire to do everything they can for their sick patients. Frustration and burnout are common because of the demands of any given day upon the staff. Two conditions that can impair the quality of medical care include the seriousness of the staff’s patient load and the upheaval of routines when communication breaks down between staff, patients, and families. At the same time, patients and families want to be assured their loved one is receiving the best of care. They want the staff to hear them, to respect them, and to comfort them.

The learning here is for the professional to take time out to tease apart the issues at hand. To look at a situation with an open mind and without blame helps generate creative ways that have been hidden in the mire of emotions. Most of all, it is imperative to not take the patient or their family’s behavior personally. Rather, it is up to the professional staff to note the stress the patient and surrogate are experiencing. It is not uncommon for a patient and family to feel they have lost their identity while they are at the mercy of the hospital’s foreign culture. Yet, they must make end of life decisions while feeling fearful and anxious about the dying process and the immanent loss of a loved one. The patient and family need the medical team’s support. As professionals, we must admit we can become immune to a patient’s and family’s quandary as they live through saying goodbye. We can help by simply checking in with a soft voice and a light touch. “How are you feeling today?”

In this time of endings, the patient’s spirituality or religion can offer the salve of healing, where the medical reality cannot. It is my view that dying invites all of us to surrender to the moment of what is. How we incorporate our spiritual self in the process is for each one of us to discover. A pastor, counselor, hospital chaplain, or hospice worker can be invaluable at these times.

Here are some questions I ask myself when I feel uncomfortable with a patient:

  • What do I know about this person’s life, his family?
  • What keeps me from accepting my patient and family as they are?

As a healthcare professional, when you find yourself taking care of a patient who makes you uncomfortable or as a family member feeling alienated by the medical staff, ask yourself: Am I getting lost in a problem? Am I reacting from a place within me that has nothing to do with the situation at hand?

When we step back, new information may come forward to clear the air and place a totally new light and energy on the situation, allowing everyone to work more effectively together.

These following questions are beneficial for patient, family, and staff:

  • How could I have recognized the developing dilemma sooner?
  • Did I bring my concerns about potential jeopardy of patient care to the nursing manager early enough to nip harm to the patient?
  • Have I switched my demeanor from compassion to anger or even indifference or avoidance?
  • Do I feel devalued and unappreciated?
  • If so, am I aware of the reason for the frustrations that arisein me?
  • Was I aware that consultation with the bioethics department as a team of professionals could help clarify the issues at hand?
  • Did I remember the dying process is a spiritual one?

The members of the medical team and family care about our patient. We want to give of our best selves. We all want to relieve pain and suffering and offer a healing touch in the midst of the worst of times. When we do, we are acting with justice and with equity.

Experience teaches me to honor the complexity of the various voices surrounding a dilemma. Medical ethics continues to be a challenge for doctors, health-care practitioners, nurses, patients and their families. For insights and case studies on how to improve doctor-patient interaction, I invite you to read: ˆWe Can, but Should We? One physician’s reflections on end of life ethical dilemmas.” Information on this book can be found at:


Non-maleficence: don’t make it worse

My professors at Stanford Medical School taught the meaning of the Latin phrase primum non-nocere and the word non-maleficence: first, do no harm. The Hippocratic Oath implores a physician to:

                               …prescribe regimens for the good of my patients

                               according to my ability and my judgment and

                               never do harm to anyone.

Every action we take in medicine should result in more benefit than burden for our patient. This seems self-evident. After all, why would anyone who entered a healing profession ever consider maiming his or her patient?

A dilemma can develop when a physician in good conscience feels that his course of therapy will result in a definite benefit for his patient, whereas the patient or surrogate decision-maker may have an entirely different understanding. When there is a strong difference in opinion regarding the benefits or burdens of a specific treatment, the value of patient autonomy trumps that of the physician and the family. Our patient, or her surrogate decision-maker, is the only one to determine if a treatment will result in a benefit for or a burden upon her from her point of view. This can only happen after she receives and understands complete factual information about her options.

Experience teaches me to honor the complexity of the various voices surrounding a dilemma. Medical ethics continues to be a challenge for doctors, health-care practitioners, nurses, patients, and their families. For insights and case studies on how to improve doctor-patient interaction, I invite you to read: “We Can, but Should We? One physician’s reflections on end of life ethical dilemmas.”

Information on this book can be found at:



Reminder for Sonoma County readers

Save the afternoon of Sunday, March 5, 2017 to Meet and Greet Dr. Gospe at his book signing at Copperfield’s Book Store, 775 Village Ct., Santa Rosa from 1:30 to 3:30.

Working with end of life issues is one of the most challenging aspects of being a healer and human. And yet, we cannot escape it. The best we can do is to prepare with empathy and wisdom.

We Can, but Should We? 

One physician’s reflections on end of life medical dilemmas


J. Michael Gospe, M.D.

This book reads like season of “Grey’s Anatomy” where the human issues surrounding real life and death issues are brought forth. Told in short vignettes, you’ll meet 16 people struggling with terminal issues, and the physicians and caregivers who become personally and professionally linked to them. You will learn about how they worked together to resolve conflicts that had seriously affected the care and treatment of these patients.

  • “Wonderful book! So well written with gripping cases, clear principles, and super suggestions for ethical decision-making.”
  • “The book is a collection of stories that revolve around gnarly bioethics dilemmas.”
  • “Using the case studies really makes it a riveting read.”

I will be sharing the afternoon with Kira Reginato, the author of Tips for Helping Your Aging Parents (without loosing your mind). We hope that you will be able to attend this gathering.

J. Michael Gospe, M.D.