Hostname: page-component-78c5997874-dh8gc Total loading time: 0 Render date: 2024-11-19T11:41:42.337Z Has data issue: false hasContentIssue false
  • English
  • Français

An Ethical and Legal Framework for Physicians as Surrogate Decision-Makers for Their Patients

Published online by Cambridge University Press:  01 January 2021

Philip M. Rosoff  and
Kelly M. Leong
Get access Rights & Permissions [Opens in a new window]

Extract

Over the last century, and especially since the publication of the Belmont Report in 1978, respect for persons, as exemplified by respect for autonomous decision-making, has become a central tenet in the practice of medicine. The authority of cognitively competent adults to make their own healthcare decisions is enshrined in both law and practice in most advanced industrialized nations. The right to consent to or to refuse medical interventions is virtually absolute, but is contingent on the provision of materially relevant information about the benefits and burdens or risks of the proposed treatment as well as the freedom from coercion by others, especially healthcare personnel. This power also extends to the kinds, amounts and details of the proposed intervention, including the option to decline to hear anything, if one so chooses, assuming that this is a rational choice. This respect transfers to other competent individuals who are authorized as surrogates to decide for those who have temporarily or permanently lost the capacity to make their own healthcare decisions.

Type
Independent
Information
Journal of Law, Medicine & Ethics , Volume 43 , Issue 4 , Winter 2015 , pp. 857 - 877
Copyright
Copyright © American Society of Law, Medicine and Ethics 2015

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Schloendorff v. Society of New York Hospital, in N.Y., N.E. 1914, New York Court of Appeals. at 125, 92; Research, T.N.C.f.t.P.o.H.S.o.B.a.B.; Department of Health, Education, and Welfare, The Belmont Report: Ethical Principles and Guidelines for the Protection of Human Subjects of Research (1979), Washington, D.C.Google Scholar
Pope, T.M. Sellers, T., “Legal Briefing: The Unbefriended: Making Healthcare Decisions for Patients without Surrogates (Part 2),” Journal of Clinical Ethics 23, no. 2 (2011): At 177–192.Google Scholar
Berger, J. T. DeRenzo, E. G. Schwartz, J., “Surrogate Decision Making: Reconciling Ethical Theory and Clinical Practice,” Annals of Internal Medicine 149, no. 1 (2008): 48–53; Kopelman, L. M., “The Best Interests Standard for Incompetent or Incapacitated Persons of All Ages,” Journal of Law, Medicine & Ethics 35, no. 1 (2007): 187–196.CrossRefGoogle Scholar
Emanuel, E. J. Emanuel, L. L., “Proxy Decision Making for Incompetent Patients: An Ethical and Empirical Analysis,” JAMA 267, no. 15 (1992): 2067–2071; Bramstedt, K. A., “Questioning the Decision-Making Capacity of Surrogates,” Internal Medicine Journal 33, nos. 5–6 (2003): At 257–259.CrossRefGoogle Scholar
Meadow, W. et al. , “Power and Limitations of Daily Prognostications of Death in the Medical Intensive Care Unit,” Critical Care Medicine 39, no. 3 (2011): 474–479; Lantos, J. D., “Not Practicing What We Preach,” JAMA Pediatrics 167, no. 10 (2013): 899–900.CrossRefGoogle Scholar
Zier, L. S. et al. , “Surrogate Decision Makers' Interpretation of Prognostic Information: A Mixed-Methods Study,” Annals of Internal Medicine 156, no. 5 (2012): 360–366.Google Scholar
Schoen, C. et al. , “Access, Affordability, And Insurance Complexity Are Often Worse in the United States Compared to Ten Other Countries,” Health Affairs 32, no. 12 (2013): 2205–2215; Petterson, S. M. et al. , “Projecting US Primary Care Physician Workforce Needs: 2010–2025,” Annals of Family Medicine 10, no. 6 (2012): 503–509; Decker, S. L., “In 2011 Nearly One-Third of Physicians Said They Would Not Accept New Medicaid Patients, but Rising Fees May Help,” Health Affairs 31, no. 8 (2012): 1673–1679.CrossRefGoogle Scholar
Mechanic, D. Meyer, S., “Concepts of Trust among Patients with Serious Illness,” Social Science & Medicine 51, no. 5 (2000): 657–668; Mechanic, D., “In My Chosen Doctor I Trust,” BMJ 329, no. 7480 (2004): 1418–1419.CrossRefGoogle Scholar
Street, R. Jr. Haidet, P., “How Well Do Doctors Know Their Patients? Factors Affecting Physician Understanding of Patients' Health Beliefs,” Journal of General Internal Medicine 26, no. 1 (2011): 21–27.CrossRefGoogle Scholar
Black, P. G. et al. , “Can a Patient Designate His Doctor as His Proxy Decision Maker?” Pediatrics 131, no. 5 (2013): 986–990; Rai, A. Siegler, M. Lantos, J., “The Physician as a Health Care Proxy,” Hastings Center Report 29, no. 5 (1999): 14–19.CrossRefGoogle Scholar
U.S. Census Bureau, “2012 National Population Projections,” available at <http://www.census.gov/population/projections/data/national/2012.html> (last visited November 25, 2015). Also see Heidenreich, P. A. et al. , “Forecasting the Future of Cardiovascular Disease in the United States: A Policy Statement from the American Heart Association,” Circulation 123, no. 8 (2011): 933–944.CrossRefGoogle Scholar
Cooke, M., “Cost Consciousness in Patient Care – What Is Medical Education's Responsibility?” New England Journal of Medicine 362, no. 14 (2010): 1253–1255; Ward, N. S. et al. , “Perceptions of Cost Constraints, Resource Limitations, and Rationing in United States Intensive Care Units: Results of a National Survey,” Critical Care Medicine 36, no. 2 (2008): 471–476; ABIM (American Board of Internal Medicine) Foundation, “Medical Professionalism in the New Millennium: A Physician Charter,” Annals of Internal Medicine 136, no. 33 (2002): 243–246.CrossRefGoogle Scholar
Fox, M. D., “Stewards of Public Trust: Responsible Transplantation,” American Journal of Bioethics 3, no. 1 (2003): v–vii; Courtney, A. E. Maxwell, A. P., “The Challenge of Doing What Is Right in Renal Transplantation: Balancing Equity and Utility,” Nephron Clinical Practice 111, no. 1 (2009). c62–c68.CrossRefGoogle Scholar
Moylan, C. A. et al. , “Disparities in Liver Transplantation Before and After Introduction of the MELD Score,” JAMA 300, no. 20 (2008): 2371–2378; Wille, K. M. et al. , “Disparities in Lung Transplantation Before and After Introduction of the Lung Allocation Score,” Journal of Heart and Lung Transplantation 32, no. 7 (2013): 684–692.CrossRefGoogle Scholar
Sudarsky, D. et al. , “The Impact of Industry Representative's Visits on Utilization of Coronary Stents,” American Heart Journal 166, no. 2 (2013): 258–265; Malin, J. L. et al. , “Medical Oncologists' Perceptions of Financial Incentives in Cancer Care,” Journal of Clinical Oncology 31, no. 5 (2013): 530–535. 16. See, for example, Angell, M., “The Case of Helga Wanglie: A New Kind of ‘Right to Die’ Case,” New England Journal of Medicine 325, no. 7 (1991): 511–512, and In re Helga Wanglie, Fourth Judicial District (Dist. Ct. Probate Ct. Div.) PX-91-283. Minnesota, Hennepin County.Google Scholar
NCGS §90–322, available at <http://www.ncga.state.nc.us/EnactedLegislation/Statutes/HTML/ByArticle/Chapter_90/Article_23.html> (last visited December 8, 2015).+(last+visited+December+8,+2015).>Google Scholar
Luce, J. M. White, D. B., “The Pressure to Withhold or Withdraw Life-Sustaining Therapy from Critically Ill Patients in the United States,” American Journal of Respiratory and Critical Care Medicine 175, no. 11 (2007): 1104–1108; White, D. B. et al. , “Decisions to Limit Life-Sustaining Treatment for Critically Ill Patients Who Lack Both Decision-Making Capacity and Surrogate Decision-Makers,” Critical Care Medicine 34, no. 8 (2006): 2053–2059; White, D. B. et al. , “Life Support for Patients without a Surrogate Decision Maker: Who Decides?” Annals of Internal Medicine 147, no. 1 (2007): 34–40; White, D. B. Jonsen, A. Lo, B., “Ethical Challenge: When Clinicians Act as Surrogates for Unrepresented Patients,” American Journal of Critical Care 21, no. 3 (2012): 202–207. One other exception in many jurisdictions is permitting doctors to serve as surrogates for relatives. However, it can be reasonably assumed that these physicians are also not serving simultaneously as the relative's doctor, a practice that is discouraged by both codes of medical ethics (see AMA, “AMA Code of Medical Ethics Opinion 8.19,” available at <http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-medicalethics/opinion819.page> [last visited November 25, 2015]) and state medical licensure boards.CrossRefGoogle Scholar
Georgia Code Ann § 31-32-4; Kansas Stat. Ann. § 58–629(d).Google Scholar
Perry, J. E. Stone, R. C., “In the Business of Dying: Questioning the Commercialization of Hospice,” Journal of Law, Medicine & Ethics 39, no. 2 (2011): 224–234; Dalrymple, L. S. et al. , “Comparison of Hospitalization Rates among For-Profit and Nonprofit Dialysis Facilities,” Clinical Journal of the American Society of Nephrology 9, no. 1 (2014): 73–81.CrossRefGoogle Scholar
Bach, P. B., “Reforming the Payment System for Medical Oncologyreforming the Payment System for Medical Oncologyviewpoint,” JAMA 310, no. 3 (2013): 261–262; Jacobson, M. et al. , “Does Reimbursement Influence Chemotherapy Treatment for Cancer Patients?” Health Affairs (Millwood) 25, no. 2 (2006): 437–43; Schnipper, L. E. Meropol, N. J., “Payment for Cancer Care: Time for a New Prescription,” Journal of Clinical Oncology 32, no. 36 (2014): 4027–4028; Goff, S. L. et al. , “How Cardiologists Present the Benefits of Percutaneous Coronary Interventions to Patients with Stable Angina: A Qualitative Analysis,” JAMA Internal Medicine 174, no. 10 (2014): 1614–1621.CrossRefGoogle Scholar
Ditto, P. H. et al. , “Advance Directives as Acts of Communication: A Randomized Controlled Trial,” Archives of Internal Medicine 161, no. 3 (2001): 421–430; Moorman, S. M. Hauser, R. M. Carr, D., “Do Older Adults Know Their Spouses' End-of-Life Treatment Preferences?” Research on Aging 31, no. 4 (2009): 463–491; Shalowitz, D. I. Garrett-Mayer, E. Wendler, D., “The Accuracy of Surrogate Decision Makers: A Systematic Review,” Archives of Internal Medicine 166, no. 5 (2006): 493–497; Silveira, M. J. Kim, S. Y. H. Langa, K. M., “Advance Directives and Outcomes of Surrogate Decision Making before Death,” New England Journal of Medicine 362, no. 13 (2010): 1211–1218.Google Scholar
Varma, S. Wendler, D., “Medical Decision Making for Patients without Surrogates,” Archives of Internal Medicine 167, no. 16 (2007): 1711–1715.CrossRefGoogle Scholar
Ubel, P. A., “Physicians Recommend Different Treatments for Patients Than They Would Choose for Themselves,” Archives of Internal Medicine 171, no. 7 (2011): 630–634.Google Scholar
Combs, M. P. et al. , “Substituted Judgment in Principle and Practice: A National Physician Survey,” Mayo Clinic Proceedings 88, no. 7 (2013): 666–673.CrossRefGoogle Scholar
See Street, Jr. Haidet, , supra note 9; Bensing, J. Rimondini, M. Visser, A., “What Patients Want: Patient Education and Counseling,” 90, no. 3 (2013): 287–290; Jagosh, J. et al. , “The Importance of Physician Listening from the Patients' Perspective: Enhancing Diagnosis, Healing, and the Doctor–Patient Relationship,” 85, no. 3 (2011): 369–374; Levinson, W. Pizzo, P. A., “Patient-Physican Communication: It's about Time,” JAMA 305, no. 17 (2011): 1802–1803.Google Scholar
See Institute of Medicine, Dying in America: Improving Quality and Honoring Individual Preferences Near the End of Life (Washington, D.C.: The National Academies Press, 2015).Google Scholar
Pew Research Center, “America's Changing Religious Landscape,” available at <http://www.pewforum.org/2015/05/12/americas-changing-religious-landscape/> (last visited November 25, 2015). However, this most recent Pew survey suggests that there has also been a major increase in the percentage of Americans labeling themselves as unaffiliated, although this should not be taken to infer that they are either atheist or agnostic. (last visited November 25, 2015). However, this most recent Pew survey suggests that there has also been a major increase in the percentage of Americans labeling themselves as unaffiliated, although this should not be taken to infer that they are either atheist or agnostic.' href=https://scholar.google.com/scholar?q=Pew+Research+Center,+“America's+Changing+Religious+Landscape,”+available+at++(last+visited+November+25,+2015).+However,+this+most+recent+Pew+survey+suggests+that+there+has+also+been+a+major+increase+in+the+percentage+of+Americans+labeling+themselves+as+unaffiliated,+although+this+should+not+be+taken+to+infer+that+they+are+either+atheist+or+agnostic.>Google Scholar
Curlin, F. A. et al. , “The Association of Physicians' Religious Characteristics with Their Attitudes and Self-Reported Behaviors Regarding Religion and Spirituality in the Clinical Encounter,” Medical Care 44, no. 5 (2006): 446–453; Curlin, F. A. et al. , “Religion, Conscience, and Controversial Clinical Practices,” New England Journal of Medicine 356, no. 6 (2007): 593–600. Curlin, F. A. et al. , “To Die, to Sleep: US Physicians' Religious and Other Objections to Physician-Assisted Suicide, Terminal Sedation, and Withdrawal of Life Support,” American Journal of Hospice and Palliative Medicine 25, no. 2 (2008): 112–120; Curlin, F. A. et al. , “Physicians' Observations and Interpretations of the Influence of Religion and Spirituality on Health,” Archives of Internal Medicine 167, no. 7 (2007): 649–654.CrossRefGoogle Scholar
Hall, M. A. et al. , “Measuring Trust in Medical Researchers,” Medical Care 44, no. 11 (2006): 1048–1053; Weinfurt, K. P. et al. , “Disclosing Conflicts of Interest in Clinical Research: Views of Institutional Review Boards, Conflict of Interest Committees, and Investigators,” Journal of Law, Medicine & Ethics 34, no. 3 (2006): 581–591; Weinfurt, K. P. et al. , “Views of Potential Research Participants on Financial Conflicts of Interest: Barriers and Opportunities for Effective Disclosure,” Journal of General Internal Medicine 21, no. 9 (2006): 901–906; Weinfurt, K. P. et al. , “Disclosure of Financial Relationships to Participants in Clinical Research,” New England Journal of Medicine 361, no. 9 (2009): 916–921.CrossRefGoogle Scholar
See White, Jonsen, Lo, , supra note 18.Google Scholar
See 45 CFR 46, Subpart D, available at <http://www.hhs.gov/ohrp/humansubjects/guidance/45cfr46.html> (last visited November 25, 2015).+(last+visited+November+25,+2015).>Google Scholar
Schroedel, J. R. Fiber, P., “Punitive Versus Public Health Oriented Responses to Drug Use by Pregnant Women,” Yale Journal of Health Policy, Law, and Ethics 1, no. 1 (2013): 15.Google Scholar
Sudore, R. L. Fried, T. R., “Redefining the ‘Planning’ in Advance Care Planning: Preparing for End-of-Life Decision Making,” Annals of Internal Medicine 153, no. 4 (2010): 256–U74; Janssen, D. J. A. et al. , “A Call for High-Quality Advance Care Planning in Outpatients with Severe Copd or Chronic Heart Failure,” CHEST Journal 139, no. 5 (2011): 1081–1088; Mack, J. W. et al. , “Associations between End-of-Life Discussion Characteristics and Care Received Near Death: A Prospective Cohort Study,” Journal of Clinical Oncology 30, no. 35 (2012): 4387–4395; Lee, E. O. Emanuel, E. J., “Shared Decision Making to Improve Care and Reduce Costs,” New England Journal of Medicine 368, no. 1 (2013): 6–8.Google Scholar
Dent v. West Virginia, in U.S. 1889, Supreme Court, at 114.Google Scholar