Surrogate decision-makers and advance directives

A 72 year old woman was admitted to the Neurological Intensive Care Unit following a cerebral hemorrhage which left her with severe brain damage and ventilator dependent. One year before this event, the patient and her husband had drawn up “living wills” with an attorney. She was diagnosed by her treating physician as being in a permanent unconscious condition. The patient’s living will specified that the patient did not want ventilator support or other artificial life support in the event of a permanent unconscious condition or terminal condition.

The patient’s husband is her legal next of kin and the person with surrogate decision-making authority. When the living will was discussed with him, he insisted that the patient had not intended for the document to be used in a situation like the present one. Further discussion with him revealed that he understood that the patient would not be able to recover any meaningful brain function but he argued that the living will did not apply because her condition was not imminently terminal. He further indicated that he did not consider his wife to be in a permanent unconscious condition.  The immediate family members (the couple’s adult children) disagreed with their father’s refusal to withdraw life support.

The treatment team allowed a week to pass to allow the husband more time to be supported in his grief and to appreciate the gravity of his wife’s situation.  Nevertheless, at the end of this time, the husband was unwilling to authorize withdrawal of life support measures consistent with the patient’s wishes as expressed in her living will.

List and discuss the three most important ethical/legal issues in this scenario [Just three]. Why are they legal /ethical issues?  Be sure and define the concepts you discuss. As a health care provider, how would you have handled this situation and why? 

Use as headings in your paper the three legal/ethics issues you pick to discuss.

You are on the honor system not to discuss or  consult with any students or other individuals about this paper. You may use the information we have discussed in the class, the articles in the class, and the article I have furnished below but you may NOT do internet research on this topic.

Background info to get your mind going and principle article to use to evaluate the facts in the scenario. This article is more than a sufficient aid to help you determine the three most important issues and also assist you in formulating your discussions for each issue. 

Relationships: I. clinical ethics, law & risk management

1. 1. Definitions and sources of authority

In the course of practicing medicine, a range of issues may arise that lead to consultation with a medical ethicist, a lawyer, and/or a risk manager. The following discussion will outline key distinctions between these roles.

• Clinical ethics may be defined as:  a discipline or methodology for considering the ethical implications of medical technologies, policies, and treatments, with special attention to determining what ought to be done (or not done) in the delivery of health care.  
• Law may be defined as: established and enforceable social rules for conduct or non-conduct; a violation of a legal standard may create criminal or civil liability.
• Risk Management may be defined as: a method of reducing risk of liability through institutional policies/practices.

Many health care facilities have in-house or on-call trained ethicists to assist health care practitioners, caregivers and patients with difficult issues arising in medical care, and some facilities have formally constituted institutional ethics committees. In the hospital setting, this ethics consultation or review process dates back to at least 1992 with the formulation of accreditation requirements that mandated that hospitals establish a “mechanism” to consider clinical ethics issues.

Ethics has been described as beginning where the law ends. The moral conscience is a precursor to the development of legal rules for social order.  Ethics and law thus share the goal of creating and maintaining social good and have a symbiotic relationship as expressed in this quote:

[C]onscience is the guardian in the individual of the rules which the community has evolved for its own preservation.  William Somerset Maugham

The role of lawyers and risk managers are closely linked in many health care facilities. Indeed, in some hospitals, the administrator with the title of Risk Manager is an attorney with a clinical background. There are, however, important distinctions between law and risk management. Risk management is guided by legal parameters but has a broader institution-specific mission to reduce liability risks. It is not uncommon for a hospital policy to go beyond the minimum requirements set by a legal standard. When legal and risk management issues arise in the delivery of health care, ethics issues may also exist. Similarly, an issue originally identified as falling within the clinical ethics domain may also raise legal and risk management concerns.

To better understand the significant overlap among these disciplines in the health care setting, consider the sources of authority and expression for each.

Ethical norms may be derived from:

• Law
• Institutional policies/practices
• Policies of professional organizations
• Professional standards of care, fiduciary obligations

Note: If a health care facility is also a religious facility, it may adhere to religious tenets. In general, however, clinical ethics is predominantly a secular professional analytic approach to clinical issues and choices.

Law may be derived from:

• Federal and state constitutions (fundamental laws of a nation or state establishing the role of government in relation to the governed)
• Federal and state statutes (laws written or enacted by elected officials in legislative bodies, and in some states, such as Washington and California, laws created by a majority of voters through an initiative process)
• Federal and state regulations (written by government agencies as permitted by statutory delegation, having the force and effect of law consistent with the enabling legislation)
• Federal and state case law (written published opinions of appellate-level courts regarding decisions in individual lawsuits)
• City or town ordinances, when relevant

Risk Management may be derived from law, professional standards and individual institution’s mission and public relations strategies and is expressed through institutional policies and practices.