MED ETHICS DEBATE

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University of Scranton *

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212

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Medicine

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Apr 3, 2024

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A surrogate decision maker may refuse medical treatment for an incapable patient. This may be done by means of an advance directive, typically a living will and/or a durable power of medical attorney. In a living will, the patient specifies the treatment wanted or not wanted at the end of life. A durable power of medical attorney names a person who is to make informed- consent decisions in the event that a patient becomes incapable, even if temporarily. If the surrogate has a durable power of medical attorney, the surrogate cannot override an existing living will but may otherwise speak for a patient. All of that sounds clear, but in reality a variety of circumstances can lead to doubt about whether a surrogate appropriately speaks for a patient. For example, a living will or a durable power of medical attorney might be from another state, and states have their own requirements for advance directives. Or a surrogate may be invalidated if the surrogate is not speaking in the interests of the patient. Furthermore, surrogates must themselves be capable of making medical decisions. This case is about doubt arising partly due to the seemingly clouded judgment of a surrogate decision maker, the patient’s wife, and a family dispute about which treatment the patient previously indicated he desires. CASE PRESENTATION AND DISCUSSION Mr. John Fayette is a 68-year-old former construction worker. Two years ago he suffered a stroke, and his health has been declining ever since. His kidneys are failing and he is now on dialysis. He wrote a living will, stating as plainly as he could that he did not, under any circumstances, want resuscitation or to be on a ventilator. He named his wife, Harriet, as his power of attorney for health-care decisions. She completely understood both his desires and the fact that she was not to go against his wishes. However, she did not think he was making a good decision, and she therefore tried to talk him out of it. Recently, John had a major heart attack. He was taken to the emergency department at the nearest hospital. John’s wife told the physician that he did not want CPR or to be on a ventilator. She did not have the power of attorney or living will with her. The emergency physician, Dr. Sudbury, thought that a ventilator would probably be needed but agreed not to use it. Two of John’s sons, both of whom John worked with for several years, arrived that evening and demanded that aggressive and full treatment begin immediately. They said that John would have wanted aggressive treatment and that they had had many discussions with their father at their work site about aggressive treatment should an accident occur. They work in a dangerous occupation and witnessed the deaths of two co-workers; another five went to emergency departments with serious injuries. So they assured the physician that they knew their father’s wishes. Their mother was confused, they said. Harriet did not interfere, and Dr. Sudbury soon put John on a ventilator. Dr. Sudbury was placed in a difficult position. Although he was clearly informed by Harriet that John did not want to be placed on a ventilator, he soon faced conflicting information about John’s desires. Under emergency conditions, he did not have the time or resources to get to the bottom of the conflict. It seems that

his best course of action was to treat John in a way that was called for by the standard of care, including ventilator support. Afterwards, issues about John’s wishes might be resolved. John was moved to the medical intensive care unit, where the attending physician was told about the disagreement among family. The attending requested help from the bioethicist, Dr. Sonya Haddam, on call that day at the hospital. Dr. Haddam quickly set up a meeting among all the concerned parties. At the meeting, Harriet produced a living will that followed the guidelines of their state. She still could not find the power of attorney she claimed to have. Dr. Haddam informed her that a living will does not take effect until the patient is judged to be terminal. Harriet seemed confused but said little more. When her sons said she was confused, she seemed to accept that, based on a nodding of her head. The sons again insisted that their father would never want to give up the fight, at least while he had a chance. They assumed he understood that the living will would apply only if he were terminal. The sons agreed that under those conditions, a terminal situation, it would make sense to stop aggressive treatment, but not now when he had a chance of recovery. Dr. Haddam thought it was clear that based on her information, she would recommend continuing treatment. Nothing in this case is as clear as we would like it to be. We are told that John did not want aggressive treatment and that he was growing tired of his condition. This was first expressed by Harriet, but she failed to be consistent or at least to reaffirm that view. She could not produce the appropriate document, the power of attorney, and a living will takes effect only under a terminal condition. Dr. Haddam was faced with the sons’ statements, who presented their views clearly, and his wife, who seemed to vacillate. Understanding that it was a life-and-death situation, Dr. Haddam decided, with good reason, to recommend continuing treatment. Nevertheless, she probably should have questioned Harriet without her sons being present. This may have led her to a different conclusion, perhaps more in keeping with John’s actual desires. The sons knew about their mother’s original statement and about the living will. Even though a living will takes legal effect only when a person is diagnosed as terminal, it may have moral standing, showing a person’s desires for or against treatment. The sons, however, interpreted it in the legal sense, claiming their father would have thought of it as coming into effect only if he were dying. Their mother’s silence probably also indicated to them that they were right. Under these conditions, it is difficult to fault the sons. Five days later, John was anxious to leave the hospital. He understood that he faced the likelihood of death, but he survived. He thought that he would recover, in the weeks ahead, enough to return to life as he knew it before this incident. He was happy with that. He mentioned his living will to a nurse, saying that he regretted writing it and did so only because he was depressed. Now that he had defeated death, as he said, he would recant his living will and instruct his wife and children to fight for him unless he was facing a futile situation. Six weeks later, John did recover more or less to his former condition, and he rewrote his living will. People have a right to change their minds. This is clearly stated in legal

documents related to living wills. If they do change their minds, and assuming they are capable, then typically that should be honored. However, until they change their minds, their prior expressed wishes should be followed under the substituted judgment standard of proxy decision making. Substituted judgment means making a medical decision for an incapable patient is to be done in the way the patient would have made the decision for himself. In this case, the fact that John changed his mind is not relevant to prior decision making. If this were factored into decision making, then advance directives would lose all of their impact. Some bioethicists might believe that the possibility of a change of mind shows that advance directives are often, maybe even typically, not a good thing, but we believe that most bioethicists would claim that advance directives should be honored in typical circumstances because this is a keyway to preserve patient autonomy. Should the patient have received care? NO 1) Beneficence and non-maleficence: the principles of medical ethics include beneficence the obligation to do good and non-maleficence the obligation to do no harm. In Mr. Fayette’s case the initial living well specified that he did not want aggressive treatment including resuscitation and ventilation. Given his health condition stated wishes providing aggressive treatment could be seen as a violation of non- maleficence principles as it could subject him to interventions that he explicitly wished to avoid. It also a deviation from beneficence since it may not align with his best interests as perceived in his initial wishes. 2) Patient autonomy: respect for patient autonomy is a fundamental principle of medical ethics. For Mr. Fayette’s living will is a clear expression of his autonomous decision regarding his medical care period deviating from the living will without a clear and consistent evidence of change in his wishes can be viewed as a breach of his autonomy. This may undermine the trust patients have in healthcare systems to honor their autonomous decisions. 3) Informed consent: the principle of informed consent requires that patients have adequate information to make decisions about their care. Mr. Fayette’s living will represented his will considered an informed decision about the treatments he wanted to receive. Deviating from this document particularly in the absence of new documented wishes raises concerns about the adequacy of informed consent for his treatment.

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