Surrogate decision-making

Decision-Making Capacity - Got Capacity?

• A clinical determination, not a legal one (vs. competence). Assessed for a specific medical decision.

• Capacity is task-specific and can fluctuate (e.g., due to delirium).

• 📌 CURA mnemonic for components:

  • Communicates a choice.
  • Understands relevant information.
  • Reasons about treatment options.
  • Appreciates the situation and its consequences.

⭐ A patient's disagreement with a physician's recommendation does not automatically mean they lack decision-making capacity.

Surrogate Hierarchy - Who's on Deck?

When a patient lacks decision-making capacity, the authority to make medical decisions transfers to a surrogate. The hierarchy for selecting this surrogate is generally established by state law.

• Primary Standard: The surrogate must use Substituted Judgment, making the decision the patient would have wanted.
• Secondary Standard: If the patient's wishes are unknown, the surrogate must act in the patient's Best Interests.

⭐ A designated healthcare proxy or agent with Medical Power of Attorney (MPOA) legally supersedes all family members, including the spouse. This is a critical and frequently tested point.

Decision Standards - Playing Detective

Surrogates must follow a clear hierarchy to make decisions that honor the incapacitated patient. The primary goal is to replicate the decision the patient would have made.

• Substituted Judgment: The surrogate makes the decision the patient would have made based on their known values and preferences (e.g., prior conversations, living will).
• Best Interests Standard: When the patient's wishes are completely unknown, the surrogate must choose the action that serves the patient's welfare, weighing treatment benefits against burdens.

⭐ The Substituted Judgment standard is ethically and legally the preferred method as it most closely respects the principle of patient autonomy.

📌 Mnemonic: Substituted Before Interests (SBI) - always try to use the patient's own voice first.

Special Scenarios - Ethical Exceptions

• Emergencies: Implied consent is assumed if a delay in treatment would cause serious harm to an incapacitated patient. No surrogate? Proceed with life-saving care.
• Minors: Parental/guardian consent is required.
  • Exceptions: Emancipated minors, or for specific sensitive issues (e.g., contraception, STIs, substance abuse, pregnancy).
• Therapeutic Privilege: Rare exception. Provider may withhold information if direct disclosure would cause severe, immediate, and demonstrable harm.
• Patient Waiver: A competent patient may voluntarily waive their right to be informed.

⭐ In an emergency, the "implied consent" principle allows physicians to act without explicit consent to prevent death or severe disability. This is a frequently tested concept.

High-Yield Points - ⚡ Biggest Takeaways

• For an incapacitated patient, a surrogate decision-maker is appointed, following a specific hierarchy: spouse, adult children, parents, then siblings.
• The primary standard is substituted judgment-making the choice the patient would have made based on their known values.
• If the patient's wishes are unknown, the best interests standard is applied.
• An advance directive (e.g., living will, healthcare proxy) legally supersedes the surrogate's authority.
• Surrogates cannot compel physicians to provide medically futile treatments.