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