Capacity and Surrogacy

The History of Medicine

• Medicine was paternalistic- concerned about patient well being, not autonomy
• Then medicine became anti-paternalistic- try to maximize well being within constraints of patient’s autonomy

Capacity

• Decision-making capacity (DMC)- present regarding a particular set of options if and only if they have the ability to
  • Understand the relative info (knowing objective facts from 3rd person POV)
  • Appreciate the situation (how the facts apply to their own life, 1st person POV)
  • Reason about their options
  • Communicate their choice
• Characteristics of DMC
  • It’s autonomy tracking
  • Patient has DMC- do as they decide
  • Patient doesn’t have DMC- autonomy is not a concern
  • Requires ability thresholds because DMC is binary
  • Decision specific, relevant thresholds deermined by
  • Complexity- more complex decision requires a greater degree of abilities
  • Risk-relativity- higher stakes of decision, greater degree of abilities needed
• Purpose of DMC- justifies patient’s authority (when a person’s choice determines which option is carried out)
• Capacity not same as competency
  • Capacity determined by physician, competency determined by judge
• Problem with DMC (according to Dr. Schwan)
  • The risks of the situation should not determine whether a person has autonomy or not

Surrogacy

• Surrogate- a person who participates in decision making and speaks to pt’s medical wishes, values, and commitments
• How to name a surrogate legally?
  • Legal guardian
  • Health care power of attorney
  • Psychiatric advance directive proxy- like HCPOA but specifically for psychiatric disorders
  • Next of kin (some states name this order)
• Why use surrogates?
  • Promote patient well being
  • Best way to respect patient autonomy if they don’t have DMC
• Surrogates only participate in decision making
• These decisions should be made based on
  • Patient’s previously expressed wishes
  • Or substituted judgment
  • At least based on patient’s best interest
• Surrogate is not a good surrogate if they don’t participate in decision making with these goals
• Other sources of info about patient’s values/wishes
  • Advance directives
  • Living will, HCPOA, declaration for mental health treatment
  • Patient’s friends
  • Previous discussions w/ patient
  • Patient themselves

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