At least twice a month, an ethics consult is called at Mercy Hospital Fort Smith (AR) because a patient has no surrogate, says Brian Paul Fetsko, MDiv, BCC, vice president of mission.

Relatively new state legislation comes into play with these cases. “There is no question that this has helped, especially in cases where we’ve heard there is family but we can’t contact them,” Fetsko says.

Arkansas’ 2017 Healthcare Decisions Act allows physicians to identify a surrogate if the patient lacks capacity and has not designated anyone. “This presumes a number of things — namely, that the surrogate has provided special care and concern, is knowledgeable about patient wishes, and is reasonably available,” Fetsko observes.

If there is no one who meets those requirements, the Arkansas act allows for the supervising healthcare provider to make decisions. This happens only after obtaining concurrence from a second physician. The act also directs physicians to consult the ethics officer or ethics committee. “It offers protection to the physician and the hospital, and avoids the need to go to court except in the most extreme cases,” Fetsko notes.

Ethics discusses the patient’s current medical condition and long-term prognosis. “The probability of success, previously stated patient wishes, the patient’s best interest, the weighing of benefits vs. burdens, the use of extraordinary care, excessive risks, and pain control all weigh into the decision-making process,” Fetsko explains. If there is no surrogate or family available, decision-making becomes more of a collaborative effort. The entire interdisciplinary care team weighs in on the situation, including nurses, case managers, social workers, chaplains, and respiratory therapists. “We have dealt with these situations proactively,” Fetsko reports.

This happens through interdisciplinary ICU rounds and huddles with hospitalists and case managers. “Ethics asks probing questions on the patient’s decision-making capacity and who is available to make decisions when we hear about potential obstacles to treatment decisions or placement post-discharge,” Fetsko says.

Ethicists are present daily during ICU rounds and attend the unit “huddles” about once a week. These focus more on discharge planning, but are a good way to learn about all patients on a unit. “Embedding ethics in the interdisciplinary care team has been effective,” Fetsko says.

Ethics representatives attend a weekly complex care meeting, also attended by the chief medical officer, chief nursing officer, case management, quality, and the attending physician. “This focuses on the most difficult patient cases and situations,” Fetsko says.

Efforts to promote advance directives have been underway for decades. “Yet we are still struggling to inspire patients to designate surrogates and execute living wills,” says Kenneth W. Goodman, PhD, FACMI, FACE, director of the Institute for Bioethics and Health Policy at University of Miami Miller School of Medicine.

The federal Patient Self-Determination Act has required hospitals to inform patients of the need to choose a surrogate for 30 years. “Many institutions continue to do a mediocre job of it,” Goodman laments. “There are not enough policies, not enough training, and not enough support for proxies and surrogates.”

There are a few ways ethics can help:

  • Draft policies on the healthcare team’s need to elicit informed consent from someone other than the patient;
  • Remind proxies that their job is to communicate the patient’s — not their own — wishes;
  • Help develop processes that support decision-makers;
  • Give proxies a brochure or direct them to a website with a checklist of their duties and some case examples.

This is a simple way to give proxies a basic explanation of their ethical obligations. “We just might discover that for all the training required of employees, we’d solve many more problems by educating decision-makers for incapacitated patients,” Goodman offers.

Some jurisdictions recognize a “best interest” standard when making decisions for others. Even institutions in other jurisdictions can use the standard. “This is a good example of the difference between law and ethics,” Goodman observes. “We all should strive to do what’s right for patients, even if a legislature is silent on the question.”

Although it is imperfect, Goodman explains the best interest standard is a “rough-and-ready way to move forward in support of most ordinary people who become incapacitated.”