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Medical board summary

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New ethics policies provide guidance
in tough patient-care situations

SHC's medical board has established policies to help physicians deal with some of the most difficult situations they face in patient treatment: situations in which an agent or surrogate must make medical decisions on behalf of a patient who is incapable of doing so, cases in which no surrogate can be found, and situations in which a patient or surrogates demand treatment that the treating physician deems futile.

"These difficult situations have consistently plagued health-care providers at Stanford and elsewhere," explained Margaret Eaton, co-chair of SHC's ethics committee and author of the new policies. "These policies will guide our physicians in following procedures that not only conform to the law but also promote the patient's best interests and sound medical practice."

Eaton said the new policies, which comply with a 2000 state law known as the California Health Care Decisions Law, will make the handling of such cases more consistent than before and will address some misconceptions about how medical decisions should be made for patients who lack the capacity to decide for themselves.

The first policy, Informed Consent when Adult Patient Lacks Capacity, explains who can give consent on behalf of an incapacitated patient: an agent named in the patient's Power of Attorney for Health Care; a court-appointed conservator; or a surrogate - an adult with whom the patient has a close personal relationship.

While family members typically act as surrogates, the policy specifies that in some cases, a domestic partner or friend may be more qualified. "Above all, we're trying to find someone who will act in the patient's best interest," Eaton said. "A friend in the patient's bridge club may make a better surrogate than a nephew in Kansas who hasn't talked to this person in years."

Other key elements of the policy are:

If several family members (or others close to the patient) wish to be included in the decision-making process, consensus decisions can be made.
A surrogate should make decisions in the patient's best interest based on the patient's personal values and wishes, even if those are contrary to the surrogate's values.
A patient having capacity at any time may disqualify another person, including a family member, from acting as his/her surrogate.
Before implementing a health-care decision made by a surrogate, a supervising health-care provider should, if possible, communicate to the patient the decision and the identity of the surrogate.
If the patient objects to a health-care decision made by his/her agent or conservator, risk management must be contacted before the decision can be implemented.

The second policy, Health-care Decisions for Incapacitated Patients who Lack Surrogates, details the procedure to follow when no substitute decision-maker can be found for an incapacitated patient. Eaton said this situation is occurring more frequently at the hospital and that no clear-cut legal guidelines exist for these unrepresented patients. "These are our most vulnerable group of patients, so we wanted to make sure there are extra protections in place for them," Eaton said.

The policy's key elements are:

Diligent efforts should be made to locate a surrogate, before a determination is made that none exists. This includes examining the patient's personal effects; reviewing any available reports from emergency medical personnel or police; and contacting public health or social service agencies that may have treated the patient.
Any surrogate must have shown concern for the patient's welfare and must be familiar with the patient's activities, health, values and religious beliefs.
Prior to implementation, a proposed treatment decision should be communicated to the patient, if possible.
If the patient objects to the proposed treatment decision, these procedures will be followed:

The medical team will obtain a second opinion about the proposed treatment from an independent physician.

The chair of the ethics committee will appoint a committee member to review the proposed decision to ensure that it was made appropriately.

If the ethics committee member supports the proposed decision, it can be implemented.

If the patient still objects to the decision, consult risk management to determine whether judicial intervention is required.

If clinicians are proposing to withhold or withdraw life-sustaining treatment from an unrepresented patient, these procedures will be followed:

The medical team will obtain a second opinion about the proposed treatment decision from an independent physician.

The ethics committee chair will appoint a multidisciplinary subcommittee to review the proposed treatment decision to ensure that it was made according to this policy.

The subcommittee will interview the patient, if possible, to determine his/her values and preferences. The subcommittee will consider the likelihood of restoring the patient to an acceptable quality of life, and will consider the patient's cultural, ethnic or religious perspectives.

If the subcommittee agrees with the decision to withhold or withdraw life-sustaining treatment, this must be communicated to the chief of staff and to the patient, if possible. The chief of staff must approve the decision before implementation.

If the patient objects to the decision, it cannot be implemented until there is a judicial determination of the patient's incapacity and an order authorizing implementation.

If the subcommittee disagrees with or cannot reach agreement on the withholding or withdrawal of life-sustaining treatment, the chief of staff will be included in the decision-making process. Irresolvable conflicts can be referred to court as a last resort.

The third policy, on Ineffective Medical Treatment, addresses one of the toughest situations physicians deal with: when a patient, or usually the patient's family, demands medical treatment that the treating physician considers futile. Many physicians assume they must provide the demanded treatment or they will face legal consequences, but this isn't the case according to the California Health Care Decisions Law. The law states that physicians can withhold or withdraw ineffective medical treatment - even over the objections of the patient/surrogates - as long as appropriate procedures are followed.

"It's important for physicians to know they're not obligated to provide every treatment that's requested, as long as they've established that the treatment would provide no benefit," Eaton explained. She emphasized that in any situation where medical-ethics questions arise, the ethics committee is available to mediate conflicts between family members and medical personnel, or among members of either group.

The policy's other key elements are:

Care that provides comfort or relieves pain cannot be considered "ineffective" and should be provided to all patients regardless of circumstances.
If a medical decision is made that existing treatment is ineffective and should be withdrawn, patients or their surrogates need not consent to the withdrawal but must be allowed to participate in this decision as follows:

Patients/surrogates must be notified by a supervising health-care provider of the determination of medical ineffectiveness, the decision to withdraw treatment, and the identity of the physician making the decision.

Patients/surrogates should be informed about the remaining treatment or transfer options and the availability of palliative care.

These same steps should be taken if a clinician declines to provide treatment requested by a patient/surrogate on the grounds of medical ineffectiveness.

If the patient/surrogate does not agree to the withdrawal of treatment, the patient is entitled to be transferred, or the patient/surrogate can participate in conflict resolution conducted in consultation with the ethics committee.
If the conflict remains unresolved, consult SHC legal counsel to determine whether a judicial resolution is advisable.
If judicial relief will be sought, the order to withdraw treatment will be suspended pending the judicial outcome.
If the treatment will be terminated without judicial intervention, the patient/surrogate will be given the opportunity to say a final goodbye or to make other arrangements. If any disagreement remains, the attending physician must write the orders and be present when treatment is withdrawn.
If there is disagreement among members of the health-care team about medically ineffective treatment, and if conflict resolution fails to resolve this, nursing and/or physician supervisors should be consulted. Final resolution rests with the director of nursing and the chief of staff. v: