Biologically-related or emotionally-connected: who would be the better surrogate decision-maker?
As an incapacitated patient is unable to make decisions regarding their care, physicians turn to next-of-kin when appointing a surrogate decision-maker in the absence of an advanced directive. With the increasing complexity of modern families, physicians are facing new ethical dilemmas when choosing the individual to make end-of-life decisions for their patients. Legal definitions and hierarchies are no longer adhering to the purpose of a surrogate-decision maker, which is to maintain a patient’s autonomy. Moral criteria for surrogates, which emphasize the importance of making decisions that align with the patient’s desires and wishes and negate biological relationships over emotional connections, are becoming much more important. This paper explores a case study in which physicians must appoint a surrogate decision-maker for an incapacitated patient, forced to choose between a biological relationship and a strong emotional connection.
KeywordsEnd-of-life decisions Incapacitated patient Medical ethics Surrogate decision-maker Withdrawing treatment
Mr. V, a forty-two-year-old Hispanic man, was hospitalized after developing a high-grade subarachnoid hemorrhage (SAH). He was immediately intubated by emergency technicians and underwent three rounds of CPR on site. Upon arriving at the hospital, Mr. V had fixed dilated pupils and no brain stem reflexes. He underwent a CT angiography of brain, which showed ischemia, severe edema, and central herniation. After seeing no improvements in neurological functioning, the physicians performed a brain death examination and an apnea test, which were positive 24 h after the incident of SAH. When a second brain death examination yielded and confirmed positive results, physicians pronounced Mr. V officially brain dead and advised that the artificial supports should be removed.
As Mr. V does not have an advanced directive, the team turned to Mr. V’s family in order to ensure autonomous care, but Mr. V’s complicated family dynamic was soon uncovered. Mr. V grew up with ten adopted siblings, and his parents have now passed away. He has two ex-wives and five children: three minors and two 21-year-old sons named Ted and Will. Will, Mr. V’s biological son, has not seen or spoken with him in several years, and unknown to Mr. V., Ted is not his biological son, but rather the result of a now ex-wife’s affair during the time of their marriage; Mr. V and Ted are emotionally close and spend time together regularly. As Will pushes to make the decisions regarding Mr. V’s care, physicians are faced with the ethical dilemma of deciding whom to officially regard as Mr. V’s surrogate decision-maker.
Making end-of-life decisions for patients that can no longer speak for themselves is certainly a complicated process for physicians and family members. Patients suffering from serious brain injury often do not have the capacity to communicate their preferences due to reduced consciousness, aphasia, or other cognitive disorders (Geurts et al. 2014). When involving family members in end-of-life decisions, conflict often arises between their desired choices and the patient’s wishes. When striving to provide the best care, clinicians are strained with these factors involved in the decision-making process and are at risk of litigation (Meisel et al. 2000).
A surrogate decision-maker, also known as a health care proxy or agent, serves as an advocate for an incompetent patient, voicing the patient’s desires and wishes regarding his or her care. Physicians typically turn to an incapacitated patient’s next-of-kin when determining a treatment plan. A recent study showed that surrogate decision-making occurred for almost half of older adults who were hospitalized and typically included complete decision-making by the surrogate, as well as joint decision-making by the surrogate and the patient when able (Torke et al. 2014).
In most states, including Texas, a hierarchy or ranking of relationships exists and is utilized in the absence of an advanced directive in order to assist in the determination of a patient’s next-of-kin and surrogate decision-maker. Based on the Texas Health and Safety Code, if the patient does not have a legal guardian or an agent under a medical power of attorney, the attending physician and one person, denoted by the hierarchy, may make a treatment decision to withhold or withdraw life-sustaining treatment. The hierarchy is as follows: (1) the patient’s spouse; (2) the patient’s reasonably available adult children; (3) the patient’s parents; or (4) the patient’s nearest living relative (Texas Health & Safety Code § 166.039, b). Consistent with general principles of surrogate decision-making, Texas law requires treatment decisions in these instances not be based on the surrogate’s own personal desires, but rather based on the patient’s personal desires, if known (Texas Health & Safety Code § 166.039, c).
The Texas Family Code outlines the number of ways that a father-child relationship may be established. A specific circumstance in which the presumption of paternity arises occurs when the man is married to the mother of the child and the child is born during the duration of the marriage (Texas Family Code § 160.204, a). This presumption may only be rebutted by adjudication or by filing a valid denial by the presumed father in conjunction with a valid acknowledgement of paternity by another person (Texas Family Code § 160.204, b). As family dynamics become more complex due to evolving social norms and increased acceptance, healthcare providers are faced with new ethical dilemmas regarding surrogate decision-makers.
The practice of establishing a surrogate decision-maker arises from the wish to maintain a patient’s autonomy. The treatment plan chosen by a surrogate should align with the patient’s wants, wishes, values, and beliefs, and be made with the best interest of the patient in mind (American College of Physicians 2011). Moral criteria for an appropriate surrogate include an individual who is most likely to know the patient’s wishes and who seems to care most about the patient (Arnold and Kellum 2003). When legal/biological family members are not emotionally close to the patient or have had very little interaction with the patient, they may be regarded as an unfit surrogate decision-maker due to interference with true autonomous care (Spinello 2011).
In the case of Mr. V, physicians must make the choice to recognize either Will, Mr. V’s estranged biological son, or Ted, who Mr. V raised as a son, to be Mr. V’s surrogate decision-maker. Following the legal definition of a surrogate provided by the relationship hierarchy, Mr. V’s adult children should be contacted to serve this role, specifically Mr. V’s biological child, Will. However, under the Texas Family Code, Mr. V is also considered to be the father of Ted, given Mr. V was still married to Ted’s mother during the time of his birth. Additionally, there is no indication this presumption of paternity was previously rebutted, and Mr. V regarded Ted as his son. Thus, the question of which son should make the healthcare decisions for Mr. V turns to moral criteria for an answer.
While Will is Mr. V’s true biological child, Ted fits the moral criteria for a surrogate. Based on the wide, yet limited definition of a surrogate and the goal of maintaining autonomous care, it is proposed that Ted be contacted to serve as Mr. V’s surrogate. Not only did Mr. V have a close relationship with Ted, but Mr. V also regards him as a son, leading to the belief that Mr. V would want Ted to serve as his surrogate. Inferring Mr. V’s wishes from his values and beliefs, Ted has a much better chance of making the choice that Mr. V would make himself. As surrogacy during end-of-life decision-making truly exists in order to maintain autonomous care, it only makes ethical and logical sense for doctors to appoint Ted as Mr. V’s surrogate decision-maker given Mr. V’s incapacitated state.
- American College of Physicians. 2011. Ethics Manual, 6th ed. http://www.acponline.org/running_practice/ethics/manual/manual6th.htm. Accessed April 12, 2014.
- Texas Family Code § 160.204. 2001.Google Scholar
- Texas Health & Safety Code § 166.039. 1999.Google Scholar