Clinical Geriatrics

Popular media depictions show death occurring quickly with little or no pain or suffering. Unfortunately, this fictional depiction is not typical of most individuals’ end-of-life experiences, particularly in hospitals or other healthcare settings. The reality for most individuals is that current medical treatments using advanced technology can delay death for an uncertain, sometimes lengthy, period of time.^1-4 Well over half of all patients experience some type of invasive and/or painful medical procedure shortly before their death.⁵ In addition, most deaths in Intensive Care Units have involved someone, usually a family member or designated surrogate decision maker, having to make a difficult decision about initiation or continuation of life-support treatments.⁶

Few individuals in the United States have drafted an advance directive or discussed their wishes with their healthcare provider, family member, or a designated surrogate decision maker before becoming ill.^7,8 Although healthcare providers have long relied on family members or caregivers to make decisions on behalf of incapacitated individuals, they are often not adequately prepared to take on this important duty.^9-13 Adding to this problem, a busy and unfamiliar environment such as an Emergency Department or Intensive Care Unit is frequently the setting where these issues are first considered.^4,14,15 Communicating about end-of-life decisions is extremely difficult, even under ideal circumstances, let alone in medical situations with significant variability, stress, and uncertainty.^13,15-18 Complicating this further is that most healthcare providers have had little or no preparation in handling the complex communicational, emotional, and legal ramifications of end-of-life decision making. Finally, these important decisions are jointly influenced by the legal precedents and statutes that impact medical standards of care. This review will speak to these multifaceted issues that healthcare providers must face as they make critical medical decisions with little to no direct input from the individual at the end of life.

Background: Legal Basis of Surrogate Decision Making
The legal concept that one individual can make decisions for someone else derives from the English common law concept of agency.¹⁹ This relationship requires three elements: (1) evidence that the surrogate is authorized to assume that responsibility; (2) acceptance by the surrogate of the responsibility; and (3) the understanding by both parties that the surrogate will direct the activity. ¹⁹ A surrogate is not just a spokesperson, but a representative empowered to use his/her judgment to make decisions on behalf of another person.¹⁹ This was not generally an issue in healthcare until 30-40 years ago, as the public perceived physicians and allied providers as the most qualified individuals to make healthcare decisions, and they, in fact, made the majority of patient care decisions. ²⁰ However, in the 1970s our country underwent a significant shift wherein individual surrogate decision makers began going to court to obtain the right to make healthcare decisions for their family members.

Important terms used in surrogate decision making include the following:

Decision-making capacity – Assessment by the healthcare provider of the patient’s ability to comprehend, appreciate, and communicate the risks, benefits, and alternatives to any proposed healthcare treatment. ^21,22

Surrogate – A person designated to speak for the patient who is lacking decision-making capacity. This person can be a family member, friend, or spouse.²³

Default surrogate –A decision maker for patients who are unable to speak for themselves and have no legally authorized person or guardian.