In this month's column, we examine the complexities related to surrogate decision making, particularly in the face of uncertainty in determining who is or should be serving in the surrogate decision-maker capacity.
HYPOTHETICAL CASE
A 39-year-old woman suffers a severe traumatic brain injury in a motor vehicle accident and has been hospitalized for several weeks. She is not progressing medically and is unable to communicate with family or medical staff, leading the care team to prognosticate little chance of recovery. The medical team feels that de-escalating care is appropriate. The patient was recently married, and her husband has repeatedly stated that he is not comfortable making decisions about her care, noting that he does not really know what the patient wants. Instead, he has been asking that decisions about her care be made by the patient's adult brother, who lives several hours away. While the patient's brother has not come to the medical center, he has strong opinions about her care. He is firmly opposed to de-escalation of care or a transition to hospice, which is also being recommended by the team. The PA is asked to convene a meeting that will include the husband, brother (via telephone), and members of the care team in order to clarify the decision-making process.
ETHICAL QUANDARY
The team members are unclear about who should be directing the patient's care. With a spouse averse to making decisions in the face of a relatively new marital relationship and a perceived deficit of information related to the wishes of the patient, the team is without a clear surrogate in a setting in which complex and high-stakes decisions need to be made. The team is also struggling with how much advice to give the surrogate and how strongly to give it.
HISTORY OF SURROGACY IN BIOETHICS
Surrogate decision making when the patient is unable to make medical decisions is rooted in early bioethics writings about autonomy. In 1994, Beauchamp and Childress identified a number of criteria that should be considered by surrogate decision makers, including "known wishes, substituted judgments, and best interests of the patient."1 These principles have remained a cornerstone of bioethical thinking, although Berger notes that "making surrogate decisions is far more complex, dynamic, and nuanced than is generally understood. Norms for surrogacy should fully account for a robust range of patients' concerns and interests in order to improve the quality of surrogates' decision making."2 Torke and colleagues note that while determining and honoring patient preference in the face of surrogate decision making is highly regarded by clinicians, they routinely rely on a variety of other factors as well.3
WHO IS THE SURROGATE?
While surrogate decision making is complex, the situation becomes even more difficult when identifying a surrogate decision maker is difficult. Rules and laws often govern this process, and they can vary widely. The purpose of surrogacy is to identify who may make health care decisions when patients are judged not competent to make decisions themselves.
Washington State law defines four classes of individuals who have the legal authority to make medical care decisions for a patient who is not competent and does not have a legal guardian. These are a spouse or registered domestic partner, children if they are older than 18 years, parents, and adult brothers and sisters.4 Using the Washington State standards in the hypothetical case presented here, surrogacy criteria are clearly met, with both the spouse and the brother meeting the legal definitions of a surrogate decision maker.