WRITTEN BY SCOTT ENDSLEY M.D.
Your patient is hospitalized and in critical condition, unable to make self-determinations for care, to whom do you turn, whose direction do you follow? This situation is problematic when there is no advanced directive or POLST available and the clinical team concludes a particular intervention or set of interventions would constitute futile care.. What are your options as the treating doctor? In the situation where the treating clinical team is interacting with the named or default patient surrogate, there exists the real possibility that conflict will arise. One source of insight on addressing this conflict comes from the ethicists working with the AMA summarized in the linked article.
The above scenario is a common issue, particularly in the ICU. Medical technology has advanced to the point to where it is virtually possible to keep an individual alive (or at least their organ systems functioning) through mechanical and/or chemical intervention almost indefinitely. At some point depending on the medical team and hospitals willingness to persist, the recommendation not to pursue futile care is made to the surrogate. If the surrogate disagrees, the options open to the treating team seem to be obtaining additional counsel in the form of a palliative care team or ethics consultation AND/OR transfer the patient to the care of another team who is more aligned with the surrogates.
In the scenario where the treating team has run out of transfer options, the ethics committee agrees and recommends not pursuing futile care, and yet the surrogate persists in their directive. Does the treating team have the option of designating an alternative surrogate more closely aligned with their recommendation. The AMA code of ethics provides some guidance on answering this question.
“Though the surrogate’s decision for the incompetent patient should almost always be accepted by the physician, there are four situations that may require either institutional or judicial review and/or intervention in the decision-making process: (1) there is no available family member willing to be the patient’s surrogate decision-maker; (2) there is a dispute among family members and there is no decision maker designated in an advance directive; (3) a health care provider believes that the family’s decision is clearly not what the patient would have decided if competent; and (4) a health care provider believes that the decision is not a decision that could reasonably be judged to be in the patient’s best interests. When there are disputes among family members or between family and health care providers, the use of ethics committees specifically designed to facilitate sound decision making is recommended before resorting to the courts.”
This code indicates that a) surrogates directions are usually required to be adhered to, and b) can be disputed by the physician and ethics consultation and/or legal intervention to change surrogate IF the treating team believes the surrogate is not acting in the patients best interests. This implies some freedom but also a process if the treating team believes what the surrogate is directing is not in the best interest of the patient or represents substituted judgement. A case example might be a transgender individual whose default surrogate was a parent who had been distanced by the patient. In this case, could the patient’s partner be appointed surrogate by the physician. The answer is maybe. However, this would need to follow a process that might include ethics or palliative care consultation, facilitated ‘family’ meetings, and reference to the court to appoint the surrogate. It is important to be aware that the outcome of this process may led to the outcome desired by the clinical team, or may result in recommendation to adhere to the surrogate’s wishes.