HealthLawProf Blog

Editor: Katharine Van Tassel
Case Western Reserve University School of Law

Friday, August 12, 2022

Abandon the Three-Decade Tradition of Asking Surrogates for Their Substituted Judgment to Honor Advanced Dementia Patients’ End-of-Life Wishes

Stanley Terman (Caring Advocates), Abandon the Three-Decade Tradition of Asking Surrogates for Their Substituted Judgment to Honor Advanced Dementia Patients’ End-of-Life Wishes, SSRN (2022):

This article reviews a body of literature that supports abandoning the three-decade practice of asking surrogates for their substituted judgment to make treatment decisions for incapacitated patients, including people living with advanced dementia. The reviewed articles were published between 1993 through early 2022. The reported concordance—between the treatment patients would want, and the treatment surrogates predicted they would want was for all but one study—only slightly better or even worse than flipping a coin. Other reviewed articles and clinical experience indicate that surrogates’ actions can also be thwarted by inherent factors that include their lack of knowledge, objectivity, or the skills required to persuade providers to implement the medical orders that reflect what patients want, especially the controversial but needed order, “Cease assisted feeding.” Even surrogates who do know what patients want and who have no inherent obstructing factors can be rendered powerless by external factors. Some authorities categorically oppose honoring their treatment instructions. The result can be devastating for patients who have no other treatment option to fulfill their end-of-life goals, such as wanting to avoid a prolonged dying as they endure various types of suffering in an advanced stage of dementia.

A proposed, possible solution: During advance care planning, patients complete a series of “Future POLSTs” whose orders cover possible anticipated future changes in medical status. Future POLSTs may be more successful in fulfilling patients’ end-of-life goals than surrogates’ contemporaneous substituted judgment for two reasons. First, patients engage in POLST conversations with providers before they consent to Future POLST orders so the orders can accurately reflect their lifelong values and treatment preferences. Second, POLSTs orders are generally binding since state laws or practice guidelines require that health care providers in all treatment settings “shall” honor POLST orders. If the proposal is widely adopted, all providers may be obligated to inform patients engaged in advance care planning about this alternative protocol.

This article presents counterarguments to likely objections to this proposal such as: POLSTs are appropriate only for frail, or seriously or terminally ill patients; the proposal is too clinically restrictive since it forbids completing new POLSTs after patients lose capacity; and unpredicted contemporaneous factors cannot be considered.

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