Someone comes to visit an ICU patient regularly and is assumed to be the next of kin. “The person ends up making decisions when it really was the cousin who happened to be visiting but only spoke to the patient yearly to wish him a happy birthday,” says Alvin H. Moss, MD, a professor at West Virginia University’s Center for Health Ethics and Law in Morgantown.
A significant number of ethics consults at West Virginia University Hospitals involved this kind of scenario. In one case, a patient’s sister accompanied him to the ED and was assumed by everyone to be the surrogate. It was later discovered she had not seen her brother in years and they rarely spoke. “She just happened to be with him at the time he had a medical crisis,” says Moss. On the other hand, the patient’s son saw his father regularly but was an alcoholic. Clinicians called ethics, concerned that the son was not a suitable surrogate due to his alcoholism. Ethicists explained that this fact alone would not automatically disqualify the son as a surrogate. “It was a matter of establishing that the son had decision-making capacity, and that he really did know his father’s wishes,” says Moss.
Often, lack of familiarity with state laws caused confusion. “Our physicians come from any number of different states, and they were not typically oriented to healthcare law in the state in which they were practicing,” explains Moss.
Ethicists held a series of workshops on the appropriate ethical and legal order for surrogate selection. Included were care management social workers, who typically were tasked with assisting in surrogate selection according to state law. “This decreased the number of times we were called,” says Moss.
Some states list a specific order, allowing for no flexibility. Others, including West Virginia, do allow flexibility if the person with highest priority on the list is not the best choice because that person does not know the patient’s wishes.1,2 “If someone knows the patient’s wishes better and has had more regular contact with the patient, that person would be the appropriate surrogate,” Moss says. Ideally, the surrogate is available to make face-to-face decisions with the healthcare team.
“One of the things ethics consultants need to do is to pin down what authority does the person really have? And, do they have any documentation at all?” asks Moss.
Some individuals have claimed to be the surrogate without anything to prove it. In some cases, a patient’s durable power of attorney incorrectly assumes this status allows them to make medical decisions on the patient’s behalf. Others ask to be appointed as surrogate because they believe it will give them authority over how the patient’s assets are distributed.
Ethicists explain: The law is very clear that the healthcare surrogate only has authority for healthcare decisions. “Sometimes, they are not very subtle. They ask us if they will now have the authority to cash checks,” says Moss.
One family member, furious that she was not named as surrogate, ended up suing the hospital. In part to discourage such frivolous lawsuits, the West Virginia Network of Ethics Committees worked to amend the process for appointing surrogates and appealing the appointment. “In the early years of our new surrogate healthcare law, we found people were very eager to challenge the surrogate selection decision,” says Moss. State law was amended to say that if the hospital appointed the surrogate in a good faith effort and the person challenging the decision loses, he or she is responsible for the court costs.
“There are a lot of states that don’t have nearly as good a process for selecting a healthcare surrogate,” says Moss.
A patient with a same-sex partner who has not completed an advance directive and designated a medical power of attorney representative, and has no ties with his or her next of kin, is one example of a scenario where ethical and legal obligations could end up in conflict.
“In some states with an inflexible priority order, following the law explicitly would mean the parents would be the ones getting to make decisions when the parents have been out of the patient’s life for years,” says Moss.
Generally speaking, ethicists consider three things: Who has had regular contact? Who has shown care and concern? And who knows the patient’s wishes best?
“You need to sort out what are the relationships the patient has with people who may potentially be surrogates,” says Moss. For instance, ethicists sometimes call the primary care physician as part of the data-gathering.
“In doing ethics consultation, sometimes we need to do a bit of investigation. We look for misinformation, missing information, and miscommunication,” says Moss.
1. DeMartino ES, Dudzinski DM, Doyle CK, et al. Who Decides When a Patient Can’t? Statutes on Alternate Decision Makers. N Engl J Med. 2017;376(15):1478–1482. doi:10.1056/NEJMms1611497.
2. Code WV. Selection of a surrogate, ch. 16, art. 30, § 8. 2016. Available at: https://bit.ly/2UvSv92.