The good news is that we are living longer. The bad news is that the longer we live, the more likely it is that we will encounter significant health problems and develop an impaired decision-making capacity to make our own medical decisions.
What happens if we survive our spouse, our children, or are otherwise estranged from family who may be able to make medical decisions for us?
As the number of incapacitated people increases, professional guardians are becoming more common. These surrogate decision makers are appointed by a judge and often have no preexisting relationship with the patient.
But the relationship may not always work out well for the patient. Guardians are often reluctant to limit the level of medical care and choose the safer path of aggressive care rather than become involved with potential legal issues involved with end-of-life care.
Researchers suggest in the current issue of JAMA: Internal Medicine that while doctors may be able to help, they are also placed in a difficult position.
“Physicians are in a unique position to assist guardians with these difficult decisions and to collaborate with them to protect the rights and dignity of the vulnerable persons whom guardians represent,” according to the authors, led by Andrew B. Cohen, MD of the Yale School of Medicine. “However, physicians are often uncertain about whether guardians are empowered to withhold treatment and when their decisions require judicial review.”
The authors looked at guardian statutes in the United States and found a lack of consistency that creates confusion for patients, guardians and physicians. Among their findings:
- 37 states have “no specific language about a guardian’s authority to make end-of-life decisions.”
- 8 states “prohibit a guardian from making end-of-life decisions without judicial review.”
- 5 states allow guardians to make end-of- life decisions, but each law contains separate contingencies. For example, Oregon’s statute “details specific situations in which artificial nutrition may be withheld by a guardian.”
“Our results show that laws governing professional guardians and end-of-life decisions are inconsistent and incomplete and add to the evidence that the legal approach to decision making for incapacitated persons in the United States is far from uniform,” said the authors.
It is obvious that end-of-life care and guardianship laws need to be made consistent throughout the U.S. and known throughout the medical community. However, such uniformity is unlikely to happen any time soon.
In that case, the authors suggest as a solution to “allow treating physicians to make decisions in an incapacitated patient’s best interests when the patient’s preferences are not known by the guardian.” This is the approach used when an incapacitated patient has no identified decision maker.
However, such responsibilities may present conflicts of interest for the physician, in which case the hospital can step in and use an appointed ethics committee to make decisions.
Another approach, according to the authors, is to establish formal roles for the physician and guardian to work together. “The treating physician would suggest a plan of care in the patient’s best interests, and the guardian would ask clarifying questions, ensuring that all relevant perspectives were considered.”
End-of-life care is becoming increasingly complex with fragmented laws that must be clarified and roles specifically defined for physicians in order to provide the best possible care for an aging population.
By Brad Broker