Waiting to Speak – Waiting for the Surrogate to Speak

6 years ago Bernard W Freedman, JD, MPH 0

Why Wait

The determination of a patient’s capacity to make decisions is based upon her understanding of her disease or illness and the risks and benefits of treatment. If she is unable to articulate a clear understanding it may be determined that she lacks the necessary capacity to make her own decision and is further taken out of the loop of information and adequate and legitimate updates on her condition. Concomitantly, surrogate decision makers are not always available to see the treating physicians and consults, and often get a cursory explanation of the patient’s condition.

Physicians remain exceedingly reluctant to confront the difficult subject of end of life care. The New York times, on January 11, 2009 published an article, by Denise Grady, – “Facing End-of-Life Talks, Doctors Choose to Wait.” Discussing a survey of 4,074 doctors who took care of cancer patients, who had only four to six months left, but was still feeling well. 65 percent said they would talk about the prognosis, but wait to discuss end of life preferences.

67%: Making sure family is not burdened financially by my care

66%: Being comfortable and without pain

61%: Being at peace spiritually

60%: Making sure family is not burdened by tough decisions about my care

60%: Having loved ones around me

58%: Being able to pay for the care I need

57%: Making sure my wishes for medical care are followed

55%: Not feeling alone

44%: Having doctors and nurses who will respect my cultural beliefs and values

36%: Living as long as possible

33%: Being at home

32%: Having a close relationship with my doctor

Why Wait?

As time progresses and severity of illness increases, being able to say what she – the patient – actually wants is of paramount importance. Respecting person’s wishes is both ethically required and legally mandated because we recognize that each of us is owed the respect to decide what is done to our bodies, how we wish to live. These human rights are not relinquished when sever illness must be faced. The need to provide timely information to the patient must not be ignored. If the determination of the true wishes of the patient are, in fact  paramount in decision making than the earlier information is provided then there is a greater probability of knowing – with confidence – the wishes and decisions of the patient. Moreover, be speaking early the patient has the opportunity to ask questions of her physicians that she deems important. All this is lost by waiting. When a patient loses capacity the physicians are forced to turn to the surrogate decision maker who may be reluctant to express the wishes of the patient or unable to face the harsh realities of the situation and delay decisions.

A surrogate cannot be permitted to cause a delay in decision making which will harm the patient by causing unnecessary suffering and costly delays.

If a surrogate cannot or will not be fully informed and understand the diagnosis and prognosis, he or she may not continue as surrogate

If a surrogate cannot or will not decide – find a new surrogate, or move to a best interest standard.

Often the surrogate is a family member suffering from fear and grief, often at odds with the views of other family members and friends. There is an understandable empathy for people in this position and the desire to help them through such a hard time in their lives is great. Yet, it is not the job of a physician or nurse or bioethicist to become involved with the surrogate to the point that the surrogate’s feelings seem more important than the need to uncover by the most reliable means possible under the circumstances to know the true perspective and intentions of the patient.

It must be of crucial importance to maintain focus on the patient’s wishes and not see the surrogate and family as a filter or as an easier method  to arrive at a decision. The surrogate must make a decision, not based on a consensus of the family or the advice of the doctor or nurse, but on the best and clearest representation of the wishes of the patient.