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: