PERSPECTIVE MAKING DECISIONS FOR PATIENTS WITHOUT SURROGATES Mechanisms and Sources of Authority for Substitute Decision Making. Mechanism or Situation Source of Authority aplied consent Instructional advance directive(living will Decided by the patien Physician Orders for Life-Sustaining Treatment(POLST) form Decided by the patient or surrogate Proxy advance directive( durable power of attorney) Guardian or conservator Appointed by the court -and even if that turns out not susceptible to the physicians developed. This solution should to be the case, casting a wide idiosyncratic treatment style. In not be resource-intensive, since net to include friends and pas- short, I believe that the risks as- almost all hospitals already have tors can at least provide evi- sociated with unilateral decision an ethics committee. dence of the patient's values and making by physicians outweigh Unfortunately, only five states treatment preferences the benefits have formally empowered exist- But for many patients, even We must strike an appropri- ing institutional multidiscipli improved preventive measures ate balance between a decision nary committees to make treat- won't work If we can't keep the maker who is responsive and can ment decisions for unrepresented patient from becoming unrepre- make timely decisions and a de- patients. The remaining states sented, who should make treat- cision maker who is independent have no clear legislative or regu ment decisions? Who should from the treating clinicians. latory guidelines, so in order to play the role of surrogate and Occupying this middle ground, I ensure transparency and fair pro apply the substituted-judgment would argue, is the ethics com- cess for unrepres and best-interest standards? To- mittee. These committees are typ- it is up to facilities to develop day, most decisions for the un- ically composed of at least a phy- their own institutional policies represented are made by physi- sician, a nurse, a social worker, So long as legally sanctioned cians alone, with no hospital a bioethicist, and a community mechanisms are nor oversight. This practice is under- member. The ethics committee inadequate, I believe that pro- standable. Physicians appreciate applies the same decision-mak- viders have both the duty and the risks, benefits, and alterna- ing standards as the individual the discretion to design these tives of various treatment op- physician decision maker. But the policies tions. And they can make quick committee has greater ability to The best approach would care- decisions iscover and diligently represent fully balance due process and But their responsiveness and the patient's wishes, to offer and efficiency. Clearly, we need a expertise notwithstanding, phy- consider various perspectives, and decision-making process that not sicians often do not make good to weigh both medical and non- only is accessible, quick, conve- surrogates. Indeed, most states medical considerations. nient. and cost-effective but also specifically prohibit patients from Ideally, this ethics committee provides the important safeguards selecting their physicians as sur- would be external to the health of expertise, neutrality, and care- rogates. Without a separate sur- care facility, like the committees ful deliberation. Ideally, the mech- rogate, the clinicians conflicts used for unrepresented patients anisms we develop would not of interest and biases related to in the New York and Texas men- only increase the quality of deci- disability, race, and culture all tal health systems. Many areas sions but also provide a greater remain unchecked. 5 In addition, of the country already have city. sense of social legitimac when physicians don't need to wide or regional ethics commit- Disclosure forms provided by the author explain their treatment decisions tees that could assume this role. are available with the full text of this article to another decision maker the But even an intramural committee at NEJM. org bases for those decisions would be a substantial safeguard, From the Health Law Institute. Haml less clearly articulated and m at least until novel solutions are University School of Law, Saint Paul, MI N ENGLJMED 369: 21 NEJM.ORG NOVEMBER 21, 2013 1977n engl j med 369;21 nejm.org november 21, 2013 PERSPECTIVE 1977 Making Decisions for Patients without Surrogates — and even if that turns out not to be the case, casting a wide net to include friends and pas￾tors can at least provide evi￾dence of the patient’s values and treatment preferences. But for many patients, even improved preventive measures won’t work. If we can’t keep the patient from becoming unrepre￾sented, who should make treat￾ment decisions? Who should play the role of surrogate and apply the substituted-judgment and best-interest standards? To￾day, most decisions for the un￾represented are made by physi￾cians alone, with no hospital oversight.3 This practice is under￾standable. Physicians appreciate the risks, benefits, and alterna￾tives of various treatment op￾tions. And they can make quick decisions. But their responsiveness and expertise notwithstanding, phy￾sicians often do not make good surrogates.5 Indeed, most states specifically prohibit patients from selecting their physicians as sur￾rogates. Without a separate sur￾rogate, the clinician’s conflicts of interest and biases related to disability, race, and culture all remain unchecked.5 In addition, when physicians don’t need to explain their treatment decisions to another decision maker, the bases for those decisions are less clearly articulated and more susceptible to the physician’s idiosyncratic treatment style. In short, I believe that the risks as￾sociated with unilateral decision making by physicians outweigh the benefits. We must strike an appropri￾ate balance between a decision maker who is responsive and can make timely decisions and a de￾cision maker who is independent from the treating clinicians. Occupying this middle ground, I would argue, is the ethics com￾mittee. These committees are typ￾ically composed of at least a phy￾sician, a nurse, a social worker, a bioethicist, and a community member. The ethics committee applies the same decision-mak￾ing standards as the individual physician decision maker. But the committee has greater ability to discover and diligently represent the patient’s wishes, to offer and consider various perspectives, and to weigh both medical and non￾medical considerations. Ideally, this ethics committee would be external to the health care facility, like the committees used for unrepresented patients in the New York and Texas men￾tal health systems. Many areas of the country already have city￾wide or regional ethics commit￾tees that could assume this role. But even an intramural committee would be a substantial safeguard, at least until novel solutions are developed. This solution should not be resource-intensive, since almost all hospitals already have an ethics committee. Unfortunately, only five states have formally empowered exist￾ing institutional multidiscipli￾nary committees to make treat￾ment decisions for unrepresented patients. The remaining states have no clear legislative or regu￾latory guidelines,2 so in order to ensure transparency and fair pro￾cess for unrepresented patients, it is up to facilities to develop their own institutional policies. So long as legally sanctioned mechanisms are nonexistent or inadequate, I believe that pro￾viders have both the duty and the discretion to design these policies. The best approach would care￾fully balance due process and efficiency. Clearly, we need a decision-making process that not only is accessible, quick, conve￾nient, and cost-effective but also provides the important safeguards of expertise, neutrality, and care￾ful deliberation. Ideally, the mech￾anisms we develop would not only increase the quality of deci￾sions but also provide a greater sense of social legitimacy. Disclosure forms provided by the author are available with the full text of this article at NEJM.org. From the Health Law Institute, Hamline University School of Law, Saint Paul, MN. Mechanisms and Sources of Authority for Substitute Decision Making. Mechanism or Situation Source of Authority Emergency Implied consent Instructional advance directive (living will) Decided by the patient Physician Orders for Life-Sustaining Treatment (POLST) form Decided by the patient or surrogate Proxy advance directive (durable power of attorney) Appointed by the patient Default surrogate Appointed by the clinician Guardian or conservator Appointed by the court