By Stacey Kusterbeck
From an ethical standpoint, it may be clear to everyone concerned that a particular individual is the correct surrogate decision-maker. However, from a legal standpoint, it can be a different story. In one case, an 80-year-old man with metastatic prostate cancer was found unconscious by his primary caregiver — his daughter-in-law.1 The man was intubated after being admitted with sepsis. There was no advance care plan, but the daughter-in-law was the person who took the man to appointments, brought him meals, and was in the hospital with the patient every day. After the clinical team stated that they did not feel the man would recover, the daughter-in-law instructed the team to withdraw mechanical ventilation and transition to a comfort-focused care plan.
At that point, risk management intervened. The problem was that, according to state law, the daughter-in-law was not allowed to make that decision unless the patient completed a medical power of attorney or a properly executed advance care plan. “In cases like this, lack of statutory support for the ‘correct’ surrogate to make important medical decisions delays decision-making and prolongs suffering,” says Steven Baumrucker, MD, medical director of the Palliative Medicine Service Line at Ballad Health System.
State laws vary regarding surrogate decision-makers. In the state of Tennessee, for example, the daughter-in-law in this case would be allowed to make the decision to transition to comfort care but would not be allowed to decide to withdraw fluids or nutrition without two doctors attesting to it. “This would merely serve to prolong the dying process,” says Baumrucker.
In many of these cases, a medical power of attorney form and advance care plan would prevent this kind of problem from happening. “Ethicists can help by promoting medical advance care planning prior to events like this,” according to Baumrucker.
After the proper person is installed with medical powers of attorney, they are able to “speak with the patient’s voice” when making medical decisions. “Ethicists can also make sure that the ethics committee understands the law — but also understands that clinicians’ first allegiance is to the patient and their autonomy,” says Baumrucker.
Reference
- Rashid S, Broyles SP, Wampler A, et al. Ethics roundtable state-erected barriers to end-of-life care. Am J Hosp Palliat Care. 2024; Oct 4. doi: 10.1177/10499091241282638. [Online ahead of print].
From an ethical standpoint, it may be clear to everyone concerned that a particular individual is the correct surrogate decision-maker. However, from a legal standpoint, it can be a different story.
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