Medical decision-making for incapacitated elders: A "therapeutic interests" standard

International Journal of Law and Psychiatry

Volumn 33, Issue 5-6, 2010, Pages 369-374

  Kapp, Marshall B ^a  

^a FLORIDA STATE UNIVERSITY   (United States)

Author keywords

Autonomy; Best interests; Decision making; Elders; Substituted judgment; Therapeutic jurisprudence

Indexed keywords

ARTICLE; BENEFICENCE; DISABLED PERSON; ELDERLY CARE; EMOTION; HUMAN; JURISPRUDENCE; LEGAL ASPECT; MEDICAL DECISION MAKING; MEDICAL ETHICS; MEDICAL PRACTICE; MENTAL CAPACITY; PATIENT AUTONOMY; QUALITY OF LIFE; RESPONSIBILITY; SOCIAL WELFARE; STANDARDIZATION;

AGED; AGED, 80 AND OVER; BENEFICENCE; CHOICE BEHAVIOR; DECISION MAKING; FRAIL ELDERLY; HUMANS; INFORMED CONSENT; LEGAL GUARDIANS; LIFE SUPPORT CARE; MALE; MENTAL COMPETENCY; PALLIATIVE CARE; PATIENT SELECTION; PERSONAL AUTONOMY; QUALITY ASSURANCE, HEALTH CARE; UNITED STATES;

EID: 78649374639     PISSN: 01602527     EISSN: None     Source Type: Journal    
DOI: 10.1016/j.ijlp.2010.09.008     Document Type: Article

References (67)

1. Older individuals face a variety of non-medical decisions at various points in their lives as well. A discussion of decision-making, including application of the best interests standard particularly, on behalf of older persons in non-medical arenas, is beyond the scope of this article. For an inkling of the non-medical topics, see, e.g., Marshall B. Kapp, "A Place Like That:" Advance Directives and Nursing Home Admissions, 4 Psychol., Pub. Pol'y & L. 805 (1998) (discussing residential choices); Marshall B. Kapp, Where Will I Live? How Do Housing Choices Get Made for Older Persons?, 15 NAELA Quart. 2 (2002) (same); Carl H. Coleman, Research With Decisionally Incapacitated Human Subjects: An Argument for a Systemic Approach to Risk-Benefit Assessment, 83 Ind. L.J. 743 (2008) (discussing research participation choices made by surrogates).
2. See generally Fay A. Rozovsky, Consent to Treatment: A Practical Guide (4th ed. 2007).
3. The literature discussing decisional incapacity and older patients is voluminous. See, e.g., Marshall B. Kapp, ed., Decision-Making Capacity and Older Persons, 10 Ethics, L. & Aging Rev. (2004).
4. Formal surrogates are those named in a proxy directive such as a durable power of attorney or health care agent document, appointed by the court in a guardianship or conservatorship proceeding, or named in a state health care surrogate statute.
5. See Elizabeth K. Vig et al., Beyond Substituted Judgment: How Surrogates Navigate End-of-Life Decision-Making, 54 J. Am. Geriatr. Soc'y 1688 (2006) ("Surrogates make up to 75% of medical decisions for patients hospitalized with life-threatening illness and 44% to 69% of decisions for nursing home residents.").
6. Regarding the ethical bases of the informed consent doctrine, see Albert Jonsen, The Birth of Bioethics 353-55 (1998).
7. Regarding the "informed" element of the informed consent doctrine, see generally Chris White et al., Informed Consent to Medical and Surgical Treatment, in Legal Medicine 338-39 (S. Sandy Sanbar et al. eds, 7th ed. 2007).
8. See, e.g., Cruzan v. Director, Missouri Dep't of Health, 497 U.S. 261 (1990) (involving a young woman injured in an automobile accident).
9. See, e.g., Frieder R. Lang & G.G. Wagner, Patient Living Wills in Germany: Conditions for Their Increase and Reasons for Refusal, 132 Dtsch. Med. Wochenschr. 2558 (2007).
10. See, e.g., Jennifer H. Lingler et al., Frequency and Correlates of Advance Planning Among Cognitively Impaired Older Adults, 16 Am. J. Geriatr. Psychiatry 643 (2008) (documenting that advance medical planning frequently does not take place in a timely fashion).
11. See, e.g., Black's Law Dictionary (8th ed. 2004) (defining the substituted judgment doctrine as "a principle that allows a surrogate decision-maker to attempt to establish, with as much accuracy as possible, what decision an incompetent patient would make if he or she were competent to do so").
12. See, e.g., Alexia Torke et al., Substituted Judgment: The Limitations of Autonomy in Surrogate Decision Making, 23 J. Gen. Intern. Med. 1514 (2008).
13. Terri R. Fried et al., Valuing the Outcomes of Treatment: Do Patients and Their Caregivers Agree?, 163 Arch. Intern. Med. 2073 (2003) (finding that caregivers often guess wrongly about patients' medical preferences); Brian J. Zikmund-Fisher et al., A Matter of Perspective: Choosing for Others Differs from Choosing for Yourself in Making Treatment Decisions, 21 J. Gen. Intern. Med. 618 (2006) (same); Sara M. Moorman & Deborah Carr, Spouses' Effectiveness as End-of-Life Health Care Surrogates: Accuracy, Uncertainty, and Errors of Overtreatment or Undertreatment, 48 Gerontologist 811, 812 (2008) (noting "research on substituted judgment consistently reveals that surrogates are no better than chance at naming the treatments that patients desire").
14. Vig, supra note 5, at 1691 (listing the surrogate's own beliefs, values, and preferences as a basis for surrogate decision making).
15. See Sumeeta Varma & David Wendler, Medical Decision Making for Patients Without Surrogates, 167 Arch. Intern. Med. 1711 (2007) (proposing the use of a computer program-which the authors label a "population-based treatment indicator"-specifically designed to predict what medical interventions most people would select under a given set of circumstances).
16. Other countries' legal systems also have adopted the best interests standard in the medical decision making sphere. See, e.g., Ash Samanta & Jo Samanta, Advance Directives, Best Interests and Clinical Judgment: Shifting Sands at the End of Life, 6 Clin. Med. 274, 275 (2006) (United Kingdom); Mary Donnelly, Decision-Making for Mentally Incompetent People: The Empty Formula of Best Interests?, 20 Med. & L. 405 (2001) (Ireland and England).
17. Lois Snyder & Cathy Leffler, for the Ethics and Human Rights Committee of the American College of Physicians, Ethics Manual, Fifth Edition, 142 Ann. Intern. Med. 560, 567 (2005):Treatment should conform to what the patient would want on the basis of written or oral advance care planning. If these preferences are not known, care decisions should be based on the best evidence of what the patient would have chosen (substituted judgments) or, failing that, on the best interests of the patient.See also Jeffrey T. Berger et al., Surrogate Decision Making: Reconciling Ethical Theory and Clinical Practice, 149 Ann. Intern. Med. 48 (2008) (explicating "the bioethical hierarchy of 3 decision-making standards [that] is endorsed widely by both organized medicine and the law").
18. The best interests standard was developed originally in the context of child custody disputes. See Joseph Goldstein et al., Beyond the Best Interests of the Child (1979); Tenn. Code Ann. § 36-6-106 (2008).
19. See generally Edmund Pellegrino & David C. Thomasma, For the Patient's Good: The Restoration of Beneficence in Health Care (1988).
20. See, e.g., Norman L. Cantor, The Bane of Surrogate Decision-Making: Defining the Best Interests of Never-Competent Persons, 26 J. Legal Med. 155, 156 (2005) ("The watchword for parens patriae jurisdiction is the best interests of the disabled person.").
21. The state's legal authority to intervene on behalf of vulnerable persons to protect them from danger is extremely important. However, we must keep in mind that, in the vast majority of situations, the best interests analysis is conducted by a combination of family members and health care professionals, and not formally by the courts. Judicial review or prior approval of a surrogate's best interests decision are exceedingly rare.
22. Michael McCubbin & David N. Weisstub, Toward a Pure Best Interests Model of Proxy Decision Making for Incompetent Psychiatric Patients, 21 Int. J. L. & Psychiatry 1, 2 (1998) ("The best interests model is a key foundation of paternalistic systems of care serving vulnerable individuals who may have diminished competence...."). See also, e.g., 43 Okl. St. Ann. § 10-108 M. 4. c. (4) (2008) (in considering a petition for involuntary protective services, the evaluation must include recognition of "the physical and mental needs of the vulnerable adult" for whom the imposition of such services is sought).
23. Thomas G. Gutheil & Paul S. Appelbaum, Substituted Judgment: Best Interests in Disguise, 13 Hast. Cent. Rep. 8, 8 (June 1983).
24. McCubbin & Weisstub, supra note 22, at 6.
25. Rebecca Dresser & Peter J. Whitehouse, The Incompetent Patient on the Slippery Slope, 24 Hast. Cent. Rep. 6, 6 (July-Aug. 1994).
26. Donnelly, supra note 16, at 410.
27. Unif. Health-Care Decisions Act § 5 (f) (1993).
28. Woods v. Commonwealth of Kentucky, 142 S.W.3d 24, 41 (Ky. 2004) (citations omitted).
29. Utah Code Ann. § 75-2a-103 (5) (g) (2008).
30. Rebecca Sizemore, Separating Medical and Ethical: Helping Families Determine the Best Interests of Loved Ones, 25 Dimensions Crit. Care Nurs. 216, 216 (2006).
31. Maura A. Flood, Treatment of the "Vegetative" Patient: The Legacies of Karen Quinlan, Nancy Cruzan and Terri Schiavo, 1 J. Health & Biomed. L. 1, 33 (2005) (discussing Woods v. Commonwealth of Kentucky, supra note 29, at 35).
32. Samanta & Samanta, supra note 16, at 276.
33. In re Truselo, 846 A.2d 256, 272 (Del. Fam. Ct. 2000).
34. Joseph J. Fins, A Palliative Ethic of Care: Clinical Wisdom at Life's End 113 (2006). See also McCubbin & Weisstub, supra note 22, at 6 ("The best interests standard, as it is generally understood, requires an 'objective' weighing of costs and benefits of alternatives facing the patient or, under a formulation that recently has become more common, the decision that a reasonable person might make under the same circumstances.").
35. Norman L. Cantor, Déjà Vu All Over Again: The False Dichotomy Between Sanctity of Life and Quality of Life, 35 Stet. L. Rev. 81, 95 (2005). See also id. at 98 (equating reasonableness with the idea of intolerability for a specific medical condition "held by an overwhelming number of people").
36. See Susan Bailey, Decision Making in Acute Care: A Practical Framework Supporting the 'Best Interests' Principle, 13 Nurs. Ethics 284, 285 (2006) ("The practical application of the best interests principle always requires the decision maker to refer to an account of quality of life.").
37. Nat'l Guardianship Ass'n, The Guardian as Surrogate Decision-Maker (n.d.), available at www.guardianship.org/pdf/surrogate.
38. Michael D. Casasanto et al., A Model Code of Ethics for Guardians 7 (1988) (adopted by the Nat'l Guardianship Ass'n), available at www.guardianship.org/pdf/codeEthics.
39. See, e.g., Karen B. Hirschman et al., Why Doesn't a Family Member of a Person With Advanced Dementia Use a Substituted Judgment When Making a Decision for that Person?, 14 Am. J. Geriatr. Psychiatry 659 (2006) (finding that many family members were unable to distinguish between the substituted judgment and best interests standards). See also Berger et al., supra note 17, at 49 (claiming that substituted judgment and best interests comprise the endpoints of a decision-making continuum, with the patient's "immediately discernible interests" in between).
40. Suzanne Fullbrook, Best Interests: A Review of Issues that Affect Nurses' Decision Making, 16 Brit. J. Nurs. 600, (emphasis added), 601 (2007)
41. Black's Law Dictionary (8th ed. 2004) (defining fiduciary as "a person who is required to act for the benefit of another person on all matters within the scope of their relationship; one who owes to another the duties of good faith, trust, confidence, and candor"); Marshall B. Kapp, Key Words in Ethics, Law, and Aging: A Guide to Contemporary Usage 31 (1995) ("In a fiduciary relationship, the more powerful party (i.e., the fiduciary) accepts the special obligation to act in a manner consistent with the best interests of the less powerful party, rather than primarily to serve his or her own interests....[Fiduciary relationships] are sometimes referred to as trust relationships, since they enable the less powerful figure to place trust and confidence in the fiduciary.").
42. Crystal D. Moore et al., Surrogate Decision-Making: Judgment Standard Preferences of Older Adults, 37 Soc. Work Health Care 1, 3-4 (2003)
43. (asking "How can one make a decision that promotes a patient's current interests without considering a patient's past?").
44. See Gutheil & Appelbaum, supra note 23, at 9 (commenting on "arbitrary 'best interests' considerations, with their attendant conscious and unconscious biases").
45. See Marshall B. Kapp, Who's the Parent Here? The Family's Impact on the Autonomy of Older Persons, 41 Emory L.J. 773 (1992).
46. McCubbin & Weisstub, supra note 22, at 7.
47. Mack v. Mack, 618 A.2d 744, 760 (Md. 1993).
48. Alexia M. Torke et al., The Physician-Surrogate Relationship, 167 Arch. Intern. Med. 1117, 1119 (2007) ("Because the values and needs of family members will inevitably affect decision making, ethical and legal models of the physician-surrogate relationship should explicitly acknowledge these factors and incorporate them into the decision-making process."); Donnelly, supra note 16, at 415 ("[A]lthough the test is undoubtedly flawed, it is not possible to operate any decision-making process on the part of incompetent persons without using a best interests determination at some level."). See also Alexia Torke et al., Rethinking Surrogate Decision-Making: Evidence from a Qualitative Study of Physicians, 19 J. Clin. Ethics 110 (2008) (advocating the position that decision-making guidelines should explicitly include the presence of surrogate interests).
49. See, e.g., Jane A. Black, The Not-So-Golden Years: Power of Attorney, Elder Abuse, and Why Our Laws Are Failing a Vulnerable Population, 82 St. John's L. Rev. 289 (2008) (discussing the possibility of abuse or exploitation of incapacitated older people by surrogates whom the older individuals had trusted to act according to the best interests standard); Nina A. Kohn, Elder Empowerment as a Strategy for Curbing the Hidden Abuses of Durable Powers of Attorney, 59 Rutgers L. Rev. 1, (same) (2006)
50. Vig et al., supra note 5, at 1692 ("Even the surrogates who planned to base decisions on their own needs... explained that they did so because they cared too much for loved ones and anticipated having trouble making life-and-death decisions.").
51. Moore et al., supra note 44 (reporting on a study finding that older individuals prefer a "best judgment" standard of decision making that takes into account the interests of the family).
52. Lawrence A. Frolik, Is a Guardian the Alter Ego of the Ward?, 37 Stet. L. Rev. 53, 71 (2007).
53. Cantor, supra note 20, at 156.
54. Bailey, supra note 37, at 285 (emphasis added).
55. Allen Buchanan & Dan Brock, Deciding for Others, 64 Milbank Q. 17, 49 (1986) (emphasis added).
56. See, e.g., David B. Wexler & Bruce J. Winick, Essays in Therapeutic Jurisprudence (1991).
57. David B. Wexler & Bruce J. Winick, Introduction to Law in a Therapeutic Key XVII, xix (David B. Wexler & Bruce J. Winick eds., 1996) ("Therapeutic jurisprudence was originally developed within the 'core' content areas of mental health law.") [hereinafter Key].
58. Christopher Slobogin, Therapeutic Jurisprudence: Five Dilemmas to Ponder, 1 Psychol. Pub. Pol'y & L. 193, 200, 201 (1995).
59. Ian Freckelton, Therapeutic Jurisprudence Misunderstood and Misrepresented: The Price and Risks of Influence, 30 T. Jefferson L. Rev. 575, 594 (2008).
60. David B. Wexler, Reflections on the Scope of Therapeutic Jurisprudence, in key, supra note 59, at 812.
61. But see Patricia C. McManus, A Therapeutic Jurisprudential Approach to Guardianship of Persons With Mild Cognitive Impairment, 36 Seton Hall L. Rev. 591, 616 (2006) (assuming, without amplification, that the TJ goal of the legal system is to "create optimal outcomes for [the affected] population").
62. Loretta M. Kopelman, The Best Interests Standard for Incompetent or Incapacitated Persons of All Ages, 35 J. L. Med. & Ethics 187, 188-89 (2007).
63. Loretta M. Kopelman & Arthur E. Kopelman, Using a New Analysis of the Best Interests Standard to Address Cultural Disputes: Whose Data, Which Values?, 28 Theoretical Med. & Bioethics 373, 375 (2007).
64. Rebecca Dresser, Standards for Family Decisions: Replacing Best Interests With Harm Prevention, 3 Am. J. Bioethics 54, 55 (2003).
65. See generally Sana Loue, Elder Abuse and Neglect in Medicine and Law: The Need for Reform, 22 J. Legal Med. 159 (2001).
66. Marshall B. Kapp, Legal Aspects of Elder Care 277-91 (2009).
67. Key, supra note 59, at xvii.