Treatment Decisions when patients lack competence

OVERVIEW

There are different approaches to determining what is in a patient’s best interests, if he or she is not competent to express them for his or herself:

• Substituted judgement
• Medical Enduring Power of Attorney and Advanced directives
• Best interest standard

In ICU, this situation is commonly encountered when considering withdrawal of treatment

• “While intensive care treatment may be life-saving for patients with reversible critical illness, medical intervention can cause considerable suffering for patients and their families with little or no benefit. The withholding or withdrawing of specific treatments is appropriate in some circumstances” — from CICM Statement

SUBSTITUTED JUDGEMENT

• when a person with knowledge of the patient’s wishes or desires makes a decision which he or she believes the patient would make in this situation if they were capable of doing so
• the person making the decision is known as surrogate (or proxy) and is often someone close to the patient
• examples: spouse, adult children, siblings, parents, or friend
• may be appointed by courts (guardians) if there is disagreement between family and/or medical staff
• surrogates and guardians are only able to consent to treatment but cannot refuse treatment (but can withhold consent)

ADVANCED DIRECTIVES

• a prior declaration of what the patient’s wishes are or would be in given situations
• can be verbal or written

Medical Enduring Power of Attorney

• most binding form of advanced directive
• MEPoA assumes that the patient has told this person what their wishes are for different given eventualities and trusts them to make the right decision
• MEPoA has the same legal standing as the patient (may consent and refuse treatment)

Written Advanced Directives

• this includes refusal of treatment certificate
• organ donor wishes on driver’s licence
• more common are obscure forms of directive (paper in wallets, relatives produce which are signed by lawyers)
• problems with these include:

-> how current they are -> specificity -> where and whom provided information about condition and treatment options

BEST INTEREST STANDARD

• when a person makes a decision about a patients treatment they consider to be in the patient’s best interest
• benefit versus burdens are considered
• often done by medical staff in emergency situations
• legally we are required to consider what the patient themselves might want
• studies have shown that medical staff and surrogates have different approaches to measuring ‘best interests’ for unconscious patients

References and Links

LITFL

• CCC — Consent
• CCC — Consent and competence in children
• CCC — Capacity and Competence

Journal articles and textbooks

• Eagle K, Ryan CJ. Potentially incapable patients objecting to treatment: doctors’ powers and duties. The Medical journal of Australia. 200(6):352-4. 2014. [pubmed] [free full text]
• Stewart C, et al. The Australian Medico-Legal Handbook (1st edition), Elsevier,2007 [Google Books Preview]

FOAM and web resources

• Essential Critical Care — Defining Decision Making Capacity in ICU (2014) [podcast with Kerry Eagle