Medical Decision-Making for Patients Without Surrogates

Now this is a truly significant health care problem.  A small number of patients account for a very large percent of overall health spending.  Many are incapacitated physically or mentally and incapable of making decisions about their health care.  Many of these patients have a surrogate–someone who can make those decisions for them and who is hopefully following the patient’s wishes.  But many do not have a surrogate, leaving a real quandary for health care providers.  A Perspective in the New England Journal of Medicine addresses the problem.  (NEJM Perspective)  Some of these patients might have an advance directive about care, but most do not  and many are homeless, mentally ill, and socially abandoned.  Most states have some regulatory framework for physician decision-making, particularly in emergency situations, where care can usually be given without patient consent when there is lack of capacity and no surrogate.  And some states designate an automatic surrogate when the patient has not named one.  But there are likely tens of thousands of patients who are “unrepresented” and who often incur extremely large health care bills.  Some states have tried to create a judicial mechanism to appoint a guardian, but legal processes are slow and for patients with no assets and no family it is hard to find someone to act as a guardian.   So in many cases doctors must simply do what they think best or what they guess the patient might have wanted.  But doctors can have conflicts regarding how much care a patient receives and may also be inclined to do as much as possible so they won’t be criticized.  The authors suggest using an ethics committee to make decisions for these patients.  That also seems very cumbersome.  What would be a better solution is to direct doctors to care for patients without surrogates in the most conservative manner and specifically not to take heroic measures which are unlikely to benefit the patient.  Since most of these patients are being paid for by the taxpayers and research clearly shows that patients are better off, even from a survival perspective, with more conservative care in most cases, that is the most reasonable course of action.