Substituted Judgment in Medical Practice: Evidentiary Standards on a Sliding Scale

1997 ◽  
Vol 25 (1) ◽  
pp. 22-29 ◽  
Author(s):  
Mark R. Tonelli
Keyword(s):  
Decision Making ◽  
Daily Practice ◽  
Medical Decision ◽  
Sufficient Evidence ◽  
State Court ◽  
Substituted Judgment ◽  
Sliding Scale ◽  
Surrogate Decision ◽  
Evidentiary Standards ◽  
Substituted Judgment Standard

Consensus is growing among ethicists and lawyers that medical decision making for incompetent patients who were previously competent should be made in accordance with that person's prior wishes and desires. Moreover, this legal and ethical preference for the substituted judgment standard has found its way into the daily practice of medicine. However, what appears on the surface to be an agreement between jurists, bioethicists, and clinicians obscures the very real differences between disciplines regarding the actual implementation of the sub stituted judgment standard. Ethicists and judges have carefully outlined how substituted judgments ought to be made and evaluated. Although differences arise, especially at the state court level, regarding the scope of the substituted judgment standard and its relation to other standards of surrogate decision making, agreement is fairly widespread on the priority of substituted judgment and on the necessity of sufficient evidence being available in order to support a particular substituted judgment.

A new kind of paternalism in surrogate decision-making? The case of Barnsley Hospitals NHS Foundation Trust v MSP

2020 ◽  
pp. medethics-2020-106797
Author(s):  
Scott Y H Kim ◽  
Alexander Ruck Keene
Keyword(s):  
Decision Making ◽  
Best Interests ◽  
Medical Decision ◽  
Negative Consequences ◽  
Substituted Judgment ◽  
Mental Capacity Act 2005 ◽  
Values And Beliefs ◽  
Life Sustaining Treatment ◽  
Surrogate Decision ◽  
Mental Capacity Act

The modern legal and ethical movement against traditional welfare paternalism in medical decision-making extends to how decisions are made for patients lacking decisional capacity, prioritising surrogates’ judgment about what patients would have decided over even their best interests. In England and Wales, the Mental Capacity Act 2005 follows this trend of prioritising the patient’s prior wishes, values and beliefs but the dominant interpretation in life-sustaining treatment cases does so by in effect calling those values the ‘best interests’ of the patient and focusing nearly exclusively on the ‘subjective’ viewpoint of the patient. In this article, we examine the recent Court of Protection judgment in Barnsley Hospitals NHS Foundation Trust v MSP [2020] EWCOP 26, which adhered closely to this approach, to suggest that it could have unexpected negative consequences. These include insufficient information gathering about and attention to patients’ objective medical interests, inadequacy of the evidentiary standard used for the substituted decision-making and, in some cases, even prioritising a surrogate’s current substituted judgment over the potential for an actual judgment by the patient.

scholarly journals Substituted decision making and the dispositional choice account

2018 ◽  
Vol 44 (10) ◽  
pp. 703.1-709 ◽  
Author(s):  
Anna-Karin Margareta Andersson ◽  
Kjell Arne Johansson
Keyword(s):  
Decision Making ◽  
Best Interests ◽  
Surrogate Decision Making ◽  
Substituted Judgment ◽  
Legal Context ◽  
Surrogate Decision ◽  
Best Interests Standard ◽  
Unconscious Patients ◽  
Substituted Judgment Standard

There are two main ways of understanding the function of surrogate decision making in a legal context: the Best Interests Standard and the Substituted Judgment Standard. First, we will argue that the Best Interests Standard is difficult to apply to unconscious patients. Application is difficult regardless of whether they have ever been conscious. Second, we will argue that if we accept the least problematic explanation of how unconscious patients can have interests, we are also obliged to accept that the Substituted Judgment Standard can be coherently applied to patients who have never been conscious at the same extent as the Best Interests Standard. We then argue that acknowledging this result is important in order to show patients respect.

All things considered: Surrogate decision-making on behalf of patients in the minimally conscious state

2020 ◽  
Vol 15 (3) ◽  
pp. 111-119
Author(s):  
L Syd M Johnson ◽  
Kathy L Cerminara
Keyword(s):  
Decision Making ◽  
Medical Decision Making ◽  
Vegetative State ◽  
Minimally Conscious State ◽  
Conscious State ◽  
Disorders Of Consciousness ◽  
Medical Decision ◽  
Surrogate Decision Making ◽  
Surrogate Decision ◽  
Minimally Conscious

The minimally conscious state presents unique ethical, legal, and decision-making challenges because of the combination of diminished awareness, phenomenal experience, and diminished or absent communication. As medical expertise develops and technology advances, it is likely that more and more patients with disorders of consciousness will be recognized as being in the minimally conscious state, with minimal to no ability to participate in medical decision-making. Here we provide guidance useful for surrogates and medical professionals at any medical decision point, not merely for end-of-life decision-making. We first consider the legal landscape: precedent abounds regarding unconscious patients in coma or the vegetative state/Unresponsive Wakefulness Syndrome (VS/UWS), but there is little legal precedent involving patients in the minimally conscious state. Next we consider surrogates’ ethical authority to make medical decisions on behalf of patients with disorders of consciousness. In everyday medical decision-making, surrogates generally encounter few, if any, restrictions so long as they adhere to an idealized hierarchy of decision-making standards designed to honor patient autonomy as much as possible while ceding to the reality of what may or may not be known about a patient’s wishes. We conclude by proposing an ethically informed, practical guide for surrogate decision-making on behalf of patients in the minimally conscious state.

scholarly journals SURROGATES’ DECISION-MAKING CONFIDENCE AND COLLABORATIVE WILLINGNESS ON THE POST: THE ROLE OF SOCIAL NORMS

2019 ◽  
Vol 3 (Supplement_1) ◽  
pp. S138-S138
Author(s):  
Rachael Spalding ◽  
Jenna Wilson ◽  
Barry Edelstein
Keyword(s):  
Decision Making ◽  
Social Norms ◽  
Indirect Effect ◽  
Self Report ◽  
Medical Decision ◽  
Surrogate Decision Making ◽  
Consideration Of Future Consequences ◽  
Perceived Social Norms ◽  
Surrogate Decision ◽  
Future Consequences

Abstract When patients become incapacitated due to illness or frailty, “surrogates” work with patients’ providers to make medical decisions on their behalf. In surrogate decision-making situations, surrogates’ decision-making confidence predicts collaborative willingness, or the extent to which they are willing to work with the patient’s providers when making decisions (Spalding & Edelstein, under review). In an attempt to explain this finding, the current study examined whether perceived social norms for patient-physician collaboration and another psychological variable, consideration of future consequences, mediated the relation between decision-making confidence and collaborative willingness. Participants (n= 172) from Amazon’s Mechanical Turk completed self-report measures and a hypothetical surrogate decision-making task. A parallel multiple mediation analysis using 5000 bootstrapped samples with the PROCESS macro (Hayes, 2013) was conducted. The overall model explained 43.4% of the variance in collaborative willingness, F(4, 166) = 9.59, p< .001. There was a significant indirect effect of decision-making confidence on collaborative willingness through perceived social norms (b= .068, SE= .034, 95% CI [.014, .154]). There was not a significant indirect effect through consideration of future consequences. After including the significant indirect path through perceived social norms, the direct effect (b= .348, p< .001) of decision-making confidence on collaborative willingness was reduced (b= .243, p= .003). Thus, perceptions of social norms partially accounted for the relation between decision-making confidence and collaborative willingness. This finding illustrates how social perceptions of patient-provider collaboration can facilitate desirable medical decision-making behaviors, such as collaboration.

569 Surrogate Decision Making: Who Has the Ultimate Say in Patient Care?

2021 ◽  
Vol 42 (Supplement_1) ◽  
pp. S134-S135
Author(s):  
Todd F Huzar ◽  
Monica L Gerrek ◽  
Daniel J Freet
Keyword(s):  
Decision Making ◽  
The Other ◽  
Medical Decision ◽  
Surrogate Decision Making ◽  
Next Of Kin ◽  
Fourth Degree ◽  
Her Family ◽  
The Family ◽  
History Of ◽  
Surrogate Decision

Abstract Introduction Burn patients may present with an inability to communicate. In these cases, we need to rely on surrogates such as the Medical Power of Attorney (MPoA) or next of kin. A MPoA gives the agent the authority to participate in medical decision and in accordance with their wishes. The agent may consent to, refuse, withdraw, or withhold treatment, including life-sustaining interventions. At times, they may feel unable to participate in decision making without assistance (i.e. family members). The process can become more complicated and decision making can become “muddied” due to others influencing decisions. In our state, the MPoA is the proxy if the patient is unable to participate in decision making; however, there are cases when the patient doesn’t have an MPoA and the next of kin is the surrogate. In these cases, the next of kin would be consulted in the following order: spouse, adult children, parents, and nearest relatives. Some next of kin may not know the patient’s wishes complicating their care. Methods Two cases involving surrogates: #1: 60-year-old man with a history of HIV involved in a MVC and sustained 30% TBSA third and fourth degree burns to the face, torso, and extremities. The severity of his injuries and outcomes were discussed with his wife. She was not certain what her would want and she consulted her family because she did not know what to do; however, she knew that he would not want to live like this. After talking to the family, the kids “over-ruled” her. They wanted aggressive care despite the risks of complications and inability to perform ADLs because of his severe facial and hand burns. Case#2: 40 something year-old man with a history of schizophrenia that sustained 65% TBSA third and fourth degree burns to his face, neck, torso, and extremities due to self-immolation. The patient’s mother was identified, and it was explained to the patient’s mother that if he did survive his injury, he will not be able to perform any of his ADLs due his hand and facial burns. The patient’s mother wanted everything done for her son. Results Both patients were unable to perform ADLs due to their injuries. One patient was discharged for further inpatient care and the other was discharged home because his mother refused further care. The first patient was unable to communicate about his thoughts on his outcome. The other patient was discharged home. He was upset about what he looked like. He also told the staff that he will do his best to finish what he started. Conclusions Complex issues can arise when the patient cannot communicate their wishes and the next of kin plays the role of surrogate. The family may disagree and alter the decision-making process. After seeing this scenario play out and patients not being happy about their outcomes, the policies regarding surrogate decision making should be re-evaluated.

What would people think? Perceived social norms, willingness to serve as a surrogate, and end-of-life treatment decisions

2020 ◽  
pp. 1-9
Author(s):  
Rachael Spalding ◽  
JoNell Strough ◽  
Barry Edelstein
Keyword(s):  
Decision Making ◽  
Mechanical Ventilation ◽  
End Of Life ◽  
Contextual Factors ◽  
Medical Decision ◽  
Decision Making Process ◽  
Surrogate Decision Making ◽  
Willingness To Serve ◽  
Surrogate Decision ◽  
End Of Life Treatment

Abstract Background Population aging has increased the prevalence of surrogate decision making in healthcare settings. However, little is known about factors contributing to the decision to become a surrogate and the surrogate medical decision-making process in general. We investigated how intrapersonal and social-contextual factors predicted two components of the surrogate decision-making process: individuals’ willingness to serve as a surrogate and their tendency to select various end-of-life treatments, including mechanical ventilation and palliative care options. Method An online sample (N = 172) of adults made hypothetical surrogate decisions about end-of-life treatments on behalf of an imagined person of their choice, such as a parent or spouse. Using self-report measures, we investigated key correlates of willingness to serve as surrogate (e.g., decision-making confidence, willingness to collaborate with healthcare providers) and choice of end-of-life treatments. Results Viewing service as a surrogate as a more typical practice in healthcare was associated with greater willingness to serve. Greater decision-making confidence, greater willingness to collaborate with patients’ physicians, and viewing intensive, life-sustaining end-of-life treatments (e.g., mechanical ventilation) as more widely accepted were associated with choosing more intensive end-of-life treatments. Significance of results The current study's consideration of both intrapersonal and social-contextual factors advances knowledge of two key aspects of surrogate decision making — the initial decision to serve as surrogate, and the surrogate's selection of various end-of-life treatment interventions. Providers can use information about the role of these factors to engage with surrogates in a manner that better facilitates their decision making. For instance, providers can be sensitive to potential cultural differences in surrogate decision-making tendencies or employing decision aids that bolster surrogates’ confidence in their decisions.

Advance Care Planning and Surrogate Decision-Making (DRAFT)

2018 ◽  
Author(s):  
Robert C. Macauley
Keyword(s):  
Decision Making ◽  
Decision Maker ◽  
Patient Autonomy ◽  
Best Interests ◽  
Evidence Based ◽  
Surrogate Decision Maker ◽  
Substituted Judgment ◽  
Decision Making Capacity ◽  
Advance Care ◽  
Surrogate Decision

Adult patients are presumed to possess decision-making capacity, but when they are unable to make their own decisions—which is especially frequent in the context of serious illness—ideally a surrogate decision-maker will be able to determine what the patient would have wanted (i.e., substituted judgment). Only when this is not possible is it necessary to fall back on what seems to be in the patient’s best interests. To foster patient autonomy, goals and values should be identified and documented in advance, such as in an advance directive, as well as a surrogate decision-maker named. This helps guide the medical team in critical and often uncertain times, given the challenges in accurate prognostication (which are lessening with the advent of evidence-based tools).

Sign in / Sign up

Export Citation Format

Share Document