| Surrogate decision-making
The determination as to whether a patient has the capacity to provide informed consent is generally a professional judgment made and documented by the treating health care provider. The provider can make a determination of temporary or permanent incapacity, and that determination should be linked to a specific decision. The legal term competency (or incompetency) may be used to describe a judicial determination of decision-making capacity. The designation of a specific surrogate decision-maker may either be authorized by court order or is specified in state statutes.
If a court has determined that a patient is incompetent, a health care provider must obtain informed consent from the court-appointed decision-maker. For example, where a guardian has been appointed by the court in a guardianship action, a health care provider would seek the informed consent of the guardian, provided that the relevant court order covers personal or health care decision-making.
If, however, a physician determines that a patient lacks the capacity to provide informed consent, for example, due to dementia or lack of consciousness, or because the patient is a minor and the minor is legally proscribed from consenting, then a legally authorized surrogate decision-maker may be able to provide consent on the patient’s behalf. Most states have specific laws that delineate, in order of priority, who can be a legally authorized surrogate decision-maker for another person. While these laws may vary, they generally assume that legal relatives are the most appropriate surrogate decision-makers. If, however, a patient has previously, while capable of consenting, selected a person to act as her decision-maker and executed a legal document known as a durable power of attorney for health care or health care proxy, then that designated individual should provide informed consent.
In Washington State, a statute specifies the order of priority of authorized decision-makers as follows: guardian, holder of durable power of attorney; spouse or state registered partner; adult children; parents; and adult brothers and sisters. If the patient is a minor, other consent provisions may apply, such as: court authorization for a person with whom the child is in out-of-home placement; the person(s) that the child’s parent(s) have given a signed authorization to provide consent; or, a competent adult who represents that s/he is a relative responsible for the child’s care and signs a sworn declaration stating so.
Health care providers are required to make reasonable efforts to locate a person in the highest possible category to provide informed consent. If there are two or more persons in the same category, e.g., adult children, then the medical treatment decision must be unanimous among those persons. A surrogate decision-maker is required to make the choice she believes the patient would have wanted, which may not be the choice the decision-maker would have chosen for herself in the same circumstance. This decision-making standard is known as substituted judgment. If the surrogate is unable to ascertain what the patient would have wanted, then the surrogate may consent to medical treatment or non-treatment based on what is in the patient’s best interest.
Laws on surrogate decision-making are slowly catching up with social changes. Non-married couples (whether heterosexual or same sex) have not traditionally been recognized in state law as legally authorized surrogate decision-makers. This lack of recognition has left providers in a difficult legal position, encouraging them to defer to the decision-making of a distant relative over a spouse-equivalent unless the relative concurs. Washington law, for example, now recognizes spouses and domestic partners registered with the state as having the same priority status.
Parental decision-making and minor children. A parent may not be permitted in certain situations to consent to non-treatment of his or her minor child, particularly where the decision would significantly impact and perhaps result in death if the minor child did not receive treatment. Examples include parents who refuse medical treatment on behalf of their minor children because of the parents’ social or religious views, such as Jehovah’s Witnesses and Christian Scientists. The decision-making standard that generally applies to minor patients in such cases is known as the best interest standard. The substituted judgment standard may not apply because the minor patient never had decision-making capacity and therefore substituted judgment based on the minor’s informed choices is not able to be determined.
It is important to note that minors may have greater authority to direct their own care depending on their age, maturity, nature of medical treatment or non-treatment, and may have authority to consent to specific types of treatment. For example, in Washington State, a minor may provide his or her own informed consent for treatment of mental health conditions, sexually transmitted diseases, and birth control, among others. Depending on the specific facts, a health care provider working with the provider’s institutional representatives could potentially legally provide treatment of a minor under implied consent for emergency with documentation of that determination, assume temporary protective custody of the child under child neglect laws, or if the situation is non-urgent, the provider could seek a court order to authorize treatment.
B. Advance directives
The term advance directive refers to several different types of legal documents that may be used by a patient while competent to record future wishes in the event the patient lacks decision-making capacity. The choice and meaning of specific advance directive terminology is dependent on state law. Generally, a living will expresses a person’s desires concerning medical treatment in the event of incapacity due to terminal illness or permanent unconsciousness.
A durable power of attorney for health care or health care proxy appoints a legal decision-maker for health care decisions in the event of incapacity. An advance health care directive or health care directive may combine the functions of a living will and durable power of attorney for health care into one document in one state, but may be equivalent to a living will in another state. The Physician Orders for Life Sustaining Treatment (POLST) form is a document that is signed by a physician and patient which summarizes the patient’s wishes concerning medical treatment at the end of life, such as resuscitation, antibiotics, other medical interventions and artificial feeding, and translates them into medical orders that follow patients regardless of care setting. It is especially helpful in effectuating a patient’s wishes outside the hospital setting, for example, in a nursing care facility or emergency medical response context.
This relatively new approach is available in about a dozen states, although the programs may operate under different names: POST (Physician Orders for Scope of Treatment), MOST (Medical Orders for Scope of Treatment), MOLST (Medical Orders for Life-Sustaining Treatment), and COLST (Clinician Orders for Life-Sustaining Treatment). The simple one page treatment orders follow patients regardless of care setting. Thus it differs from an advance directive because it is written up by the clinician in consultation with the patient and is a portable, actionable medical order. The POLST form is intended to complement other forms of advance directives. For example, Washington State recognizes the following types of advance directives: the health care directive (living will), the durable power of attorney for health care, and the POLST form. Washington also recognizes another legal document known as a mental health advance directive, which can be prepared by individuals with mental illness who fluctuate between capacity and incapacity for use during times when they are incapacitated.
State laws may also differ on the conditions that can be covered by an individual in an advance directive, the procedural requirements to ensure that the document is effective (such as the number of required witnesses) and the conditions under which it can be implemented (such as invalidity during pregnancy).
Advance directives can be very helpful in choosing appropriate treatment based upon the patient’s expressed wishes. There are situations, however, in which the advance directive’s veracity is questioned or in which a legally authorized surrogate believes the advance directive does not apply to the particular care decision at issue. Such conflicts implicate clinical ethics, law and risk management.
C. Provider-patient communications: disclosing medical error
Honest communication to patients by health care providers is an ethical imperative. Excellent communication eliminates or reduces the likelihood of misunderstandings and conflict in the health care setting, and also may affect the likelihood that a patient will sue.
One of the more contentious issues that has arisen in the context of communication is whether providers should disclose medical errors to patients, and if so, how and when to do so. Disclosure of medical error creates a potential conflict among clinical ethics, law and risk management. Despite a professional ethical commitment to honest communication, providers cite a fear of litigation as a reason for non-disclosure. Specifically, the fear is that those statements will stimulate malpractice lawsuits or otherwise be used in support of a claim against the provider. An increase in malpractice claims could then negatively affect the provider’s claims history and malpractice insurance coverage.
There is some evidence in closed systems (one institution, one state with one malpractice insurer) that an apology coupled with disclosure and prompt payment may decrease either the likelihood or amount of legal claim. In addition, a number of state legislatures have recently acted to protect provider apologies, or provider apologies coupled with disclosures, from being used by a patient as evidence of a provider’s liability in any ensuing malpractice litigation. It is currently too early to know whether these legal protections will have any impact on the size or frequency of medical malpractice claims. For this reason and others, it is advisable to involve risk management and legal counsel in decision-making regarding error disclosure.