H. K. is a ninety-two-year-old woman with Alzheimer's
disease and mild hypertension. She resides at a nursing home, where
she transfers from bed to chair with maximal assistance. She presents
to our emergency department with a painful right hip. Physical examination
demonstrates a confused, elderly patient with significant right
hip pain and shortening and external rotation of the lower extremity.
Radiographs demonstrate a displaced intertrochanteric hip fracture.
The patient lacks the capacity for informed consent. Her family
is contacted to obtain consent for insertion of a compression screw.
The family refuses to give consent, stating that the patient is
too old and the surgery is too dangerous.
The most significant ethical issues in this case relate to surrogacy.
Three related questions will have to be explored to help us to understand
how the orthopaedist in this case should respond to the family's
decision: Who is an appropriate surrogate? What are appropriate
standards for surrogate decision-making? When should a physician
accept the decision of a surrogate?
Surrogacy: A surrogate is someone who can be
called upon to make health-care decisions on behalf of a patient
when the patient lacks the capacity to make those decisions. An
adult designated formally by the patient or the courts would have
the authority to make decisions on behalf of the patient. A formally
designated surrogate is selected because the patient or the court
trusts that individual to make health-care decisions on behalf of the
patient. When no individual is officially granted that power, the
next of kin, according to state priority ranking, is allowed to
make decisions within the constraints of governing state law.
Standards for surrogate decision-making: Three
alternative models for surrogate decisions can be identified in
the bioethics literature. Substituted judgment asks the surrogate
to imagine what choice the patient would have made in the situation
at hand. Best interest asks the surrogate to decide what choice
would be best for the patient. The reasonable-person standard asks
the surrogate to determine what would be reasonable under the circumstances,
all things considered.
While substituted judgment and best interest are the standards
that are invoked most commonly in discussions regarding surrogate
end-of-life decision-making, the reasonable-person standard is the
commonly accepted standard in other legal discussions. The substituted-judgment standard
is limited by the surrogate's actual familiarity with the patient's
views on health-care matters. Research has shown that surrogates who
try to make decisions based on what they imagine the patient would
have wanted have a record of no better than chance of actually matching
patient choices. On the other hand, best interest is precisely the
decision-making position that we associate with the contemptible selfish
egoist. This fact makes best interest a peculiar choice as a standard
for surrogate decision-making. Nevertheless, some general concern
with the patient's values, the patient's best interest, or reasonableness
can be accepted as an appropriate approach for surrogates in their
decision-making.
When to accept a surrogate's decision: Doctors
are required by law and ethics to accept the choices of competent
patients and to respect a competent patient's refusal of treatment
even when the doctor believes that the refusal is ill advised or
life-threatening. This stance expresses respect for patient autonomy.
A doctor's attitude toward a patient's refusal of recommended
treatment should, however, be significantly different from the attitude
that a doctor takes toward a surrogate's decision. Respect for patient
autonomy requires a physician to allow a patient to choose to accept
or forgo treatment and requires a physician to question the patient's
capacity only when the patient's decision is hard to reconcile with
what a reasonable person would do under the circumstances. A surrogate's
decisions should not be approached with the same inclination of
acceptance. When the patient is unable to declare her own view of
what is good and the surrogate arrives at a decision, the physician
needs to take a more questioning position toward the surrogate's
decision. The physician needs to ask whether the surrogate is acting
according to an appropriate surrogate decision-making standard and
whether the surrogate's decision is reasonable and good for the
patient. Pediatric medicine is a fitting example. Pediatricians
regularly ask themselves these questions when parents refuse recommended
therapies, and these physicians sometimes are prepared to go to
their institutional Ethics Committee or to the courts for the authority
to override what they see as an inappropriate surrogate decision.
H. K.'s surrogate's decision: As her next
of kin, H. K.'s family are appropriate surrogates for making the
decision about the closed reduction of her hip. Because they have no
knowledge of her wishes with regard to treatment, they can rely
only upon either the best-interest standard or the reasonable-person standard.
Even if the family appears to be attentive and concerned about H.
K's well-being and they explain their refusal in terms of her best
interest, the orthopaedist must examine their decision to see if
complying with it will, in fact, be reasonable and good for the
patient.
Because H. K. has no imminently life-threatening medical problems,
she is likely to live on in the situation determined by the choice.
Refusal of the procedure will leave H. K. suffering a great deal
of pain. The doctor has to consider whether the pain can be adequately
managed with medication alone, whether the fracture is likely to
heal without the procedure, and how long that would take. If pain
management and healing are possible without more aggressive intervention,
then it may be permissible to agree with the family's refusal on
the grounds that conservative management would be better for H. K.
On the other hand, if the pain will persist, making toilet care
and moving H. K. more difficult, it would be hard to justify accepting
their refusal. Far more harm than good would be achieved by refusing
the hip fracture surgery. The likelihood of H. K. continuing to
suffer in pain, developing decubitus ulcers from being confined
to bed and suffering a diminished quality of life, are all compelling
considerations for reaching the conclusion that the surrogates are making
an inappropriate choice that should be overridden.
James D. Capozzi, M.D.
Department of Orthopaedics
Mount Sinai Medical Center
1065 Park Avenue
New York, N.Y. 10128
Rosamond Rhodes, Ph.D.
Director of Bioethics Education
Mount Sinai Medical Center
One Gustave Levy Place
New York, N.Y. 10029
Further Reading
Buchanan, A., and Brock, D.: Deciding
for others: the ethics of surrogate decision making. In Studies
in Philosophy and Health Policy. New York, Cambridge University
Park Press, 1989.
Kopelman, L.: The best interest standard as threshold,
ideal and standard of reasonableness. J. Med. and Philosophy, 22:
271-289, 1997.