Surrogate Decision Making

Modern medicine has embraced the concept of shared decision making between patients and their physicians based on the principle of autonomy.^1,2 This approach is often more complicated in the intensive care unit (ICU), because patients are frequently too ill or otherwise impaired to make meaningful contributions to decisions about their care. Increasingly, decisions are made in the ICU to withdraw care,³ and conflicts are common between physicians’ practices and patients’ wishes.⁴ In the ICU, as in other medical situations, patients have an ethical (and in many places, a legal) right to determine the goals of their medical care. An individual patient’s wishes regarding future care in the case of his or her incapacity may be made known in advance of a serious medical illness. The process by which patients, with or without the assistance and participation of their physicians, family members, or other close personal relations, plan for future medical care is called advance care planning.⁵ In general, the results of these deliberations are known as advance directives; defined broadly, they may be verbal or written and may be quite specific or very general. In this process, the patient determines what kind of care he or she would want in the setting of some hypothetical (or anticipated) situation and makes known his or her wishes regarding future medical care. The advance directive helps direct medical care in case of the patient’s incapacity and comes into play only if the patient is unable to make his or her current wishes known.⁶ For example, a patient who awakens after a surgical procedure and is deemed competent (see later) is asked outright about his or her wishes, and the advance directive is no longer necessary.

Advance directives have ethical authority in whatever form (including verbal), as long as the directive was promulgated within the requirements of informed consent (see later). Unfortunately, the reliability of a specific advance directive as “authentic representations of autonomous patient choices” is often suspect.⁷ Advance directives specific enough to guide day-to-day clinical decision making in the ICU are rare; more commonly, the ICU physician is left to work with a surrogate to make decisions for a patient who is too sick to participate in decisions.

For medical decisions in which patient factors play a large role, the physician must have a surrogate decision maker with whom to discuss goals of care and treatment options. There are two questions that must be answered: Who may and should act as surrogate? How should the surrogate make decisions for the ill patient?

In some cultures, physicians often turn to the “next of kin” for surrogate decision making. However, the legal status of surrogates varies from country to country, and this individual may have no legal or ethical grounds for assuming this role. Even in cultures in which surrogate decision making is valued, there is often no designated hierarchy of surrogates. In those cultures in which such a hierarchy has been determined by law, a typical sequence might be (1) spouse, (2) eldest child, (3) next child, (4) parent, (5) sibling. In addition to legal standing, the surrogate should have some moral standing to act as such. For example, a surrogate specifically named in an advance directive document or verbally designated by the patient as the preferred surrogate would have this standing. In fact, some would argue that this is the single most important question for a patient who is sick enough to warrant ICU care (“If you become too sick to speak for yourself, who would you want to make medical decisions for you?”).⁸ In surveys about advance directives and surrogates, patients and well individuals typically name their spouses or other immediate family members as their preferred surrogates. These individuals frequently (though not always) have a shared value system. Interestingly, when asked whether they would prefer that their advance directives be followed no matter what or that their care be discussed with their chosen surrogate, a majority of patients would cede authority to the surrogate.⁹

In many cultures, surrogate decision making is not considered acceptable. Even in this paternalistic approach, it is incumbent on the physician to collect information from those who know the patient well in an attempt to collectively determine what this patient would prefer in terms of medical care and then balance that information with the physician’s judgment as to the best course of therapy. This shared decision-making model is now viewed as the most appropriate in many cultures, including North America and Europe.

In the United States, advance directives allow patients to make their wishes for future care known, either formally or informally. These directives may also designate a specific surrogate decision maker who then has ethical and possibly legal standing (if the appropriate statutory document is properly executed) to make medical decisions for the patient. In the absence of advance directives, the legally appointed surrogate—or, in the absence of such a surrogate, those who know the patient well—make decisions for the patient using substituted judgment based on their knowledge of the patient. When no specific information is available about a patient, the decision makers apply a “reasonable-person” standard—that is, what a reasonable person would prefer in the clinical situation at hand—and sometimes resort to a “best-interest” standard.

Advance Directives

As noted, in the United States, advance directives are formal or informal instructions to healthcare providers, family members, or others involved in a patient’s care regarding treatment that may be required while the patient is unable to participate in medical decision making. The earliest form of advance directive was the “living will.” Classically, the living will is restricted in terms of both scope and applicability. Living wills are usually reserved for patients with terminal illnesses and are typically restricted to statements about forgoing medical treatments that would “only prolong my dying”; they typically make explicit statements about the acceptability of discontinuing intravenous fluids and artificial nutrition if death is imminent and there is no significant hope for recovery. They usually do not provide instructions in case of nonterminal illness and typically do not name a surrogate. A more generally useful legal document is one that gives statutory authority to an individual to make medical decisions for a patient in case of incapacity. This document is sometimes referred to as a durable power of attorney for health care. Similar to a durable power of attorney that provides legal decision-making authority for financial and other matters in case of incapacity, this document provides legal standing to a named surrogate with regard to healthcare decisions. These documents typically provide an opportunity for an individual to give general information about healthcare preferences in a variety of situations. Some also provide an opportunity for the person to make a statement about quality of life and the kind of life that would and would not be worth living. Preferences for organ donation, wishes for spiritual care, and even funeral arrangements are sometimes included.

Additionally, a number of advisory documents have been developed, including “values histories” and the medical directive developed by Linda and Ezekiel Emanuel.¹⁰