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CHAPTER 19: Legal Issues in Critical Care 127

risk management for the physician proposing an intervention, since of persistent vegetative state patient Terri Schiavo, often end up being
that physician is the one ultimately responsible for ensuring informed resolved in a courtroom. 12
consent; the legal system affords psychiatrists a great deal (arguably Surrogate decision making for others is a difficult, stressful endeavor.
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an excessive amount) of deference as consultant assessors of patients’ Especially as the population ages, an increasing percentage of patients
decisional capacity. lack available and willing relatives or friends to act as surrogate decision
For patients who—in fact—lack sufficient ability to engage in a makers for them. In such cases, there are several potential sources of
rational decision-making process, the presumption of capacity is rebut- guidance for the physician.
ted or overcome. This does not mean, however, that the physician may The patient may have executed a living will document while still
dispense with obtaining informed consent prior to initiating particular decisionally capable. This type of advance directive, which is autho-
interventions. Consent remains necessary for the treatment of incapaci- rized by state statute (frequently called a natural death act), permits a
tated patients, but the consent must be obtained from a surrogate acting capable adult to make a record of personal preferences regarding future
on the patient’s behalf. Several approaches to surrogate decision making medical treatment in the event of subsequent incapacity and critical
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have been developed. 7 illness. Although usually this directive is used to indicate a preference
The overwhelming majority of states have enacted “family consent for the limitation of future medical intervention, the directive could
statutes,” which specify relatives and other people (ordinarily in a prior- be employed to request maximum medical intervention if there is any
ity order) who may legally make medical decisions for an incapacitated perceived likelihood of benefit to the patient.
family member. Advance proxy directives (see the next section), espe- A physician who complies in good faith with the patient’s expressed
cially the durable power of attorney, may be used by currently capable voluntary, informed wishes to limit life-prolonging treatment is on
persons to designate their own surrogates in the event of future inca- firm legal ground. For the physician who, for ethical or other reasons,
pacity. A formal guardianship or conservatorship (precise terminology chooses not to follow a living will’s directive to limit treatment, there is
varies among jurisdictions) proceeding may be initiated, in which a court an ethical and legal obligation to notify the patient or surrogate (if one
finds the patient (the ward) to be decisionally incapacitated (the legal is present) of the physician’s objection and to make a reasonable attempt
term usually employed is incompetent) and appoints someone else (the to transfer the patient to another physician who is willing to comply;
guardian or conservator of the person) as the surrogate decision maker. at the very least, the attending physician is obliged not to impede such
In most cases, however, the physician relies on a family member as a transfer.
the surrogate decision maker for an incapacitated patient, even when Advance care planning often improves end-of-life care and patient
there is not a specific statute, advance directive, or court order expressly and family satisfaction and reduces stress, anxiety, and depression in
empowering the family to act in this role. This informal process of mak- surviving relatives. However, “[a]lthough advance directives may
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ing do using next of kin, even without explicit legal authority, works well stimulate discussions and reduce the stress of surrogate decision mak-
in the vast majority of situations in which the family members agree on ing, well-documented controversy exists over their clinical effectiveness,
a course of conduct both among themselves and with the physician, and including their inability to affect clinicians’ and families’ understanding
where they appear to be acting consistently with the patient’s own values of patients’ preferences and the type of care received.” Thus, there is a
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and preferences (the substituted judgment standard) or with the patient’s higher probability that the patient’s wishes will be effectively honored
objectively determined best interests. 8 by health care providers when those wishes have been ascertained in a
timely fashion and incorporated into a written physician’s order for life-
DECISIONS TO LIMIT TREATMENT sustaining treatment (POLST). 16,17 The health care provider community
is at different stages of adopting and implementing the POLST paradigm
Some patients retain a sufficient degree of capacity to make and express in various jurisdictions.
their own medical decisions even after admission to an ICU. Legal prec- In many states, a public guardianship system has been created to
edent is very clear that, except in cases in which the welfare of a third make surrogate decision makers available, either through a government
party such as a minor dependent is jeopardized, a properly informed, agency or a private agency under government contract, for incapacitated
mentally capable patient has the right to make personal medical deci- patients who lack available, willing relatives or friends. There are also
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sions, including a decision to refuse even life-prolonging treatment. projects in some locales that use charitably funded agencies and their
If the patient is decisionally incapacitated, a more difficult scenario volunteers to act as surrogate medical decision makers for incapacitated
may confront the physician. A surrogate decision maker may be iden- patients. The physician should consult hospital legal counsel to deter-
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tified (see the previous section) by either a state family consent statute, mine acceptable local sources of surrogate decision making for the
the patient’s prior execution of a durable power of attorney naming incapacitated patient without relatives or friends.
a health care agent, court appointment of a guardian/conservator, or The most controversial and complicated issue in the treatment limi-
informally relying on available, willing family members. The surrogate tation arena is still the status of artificial feeding and hydration. The
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is expected to make decisions consistent with what the patient would courts have been unanimous in holding that feeding tubes (of all kinds)
choose if he or she were presently able to make and express choices are merely another form of medical intervention that could be withheld
personally—the substituted judgment standard, or “donning the men- or withdrawn under the same circumstances applicable to the with-
tal mantle” of the incapacitated person. If there is no reliable indica- holding or withdrawal of any other type of medical intervention. Major
tion of the patient’s preference under the circumstances (a number medical groups endorse this position. However, some people argue
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of states require proof of this fact by clear and convincing evidence), that feeding and hydration, even when accomplished only through tubes
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the surrogate must act benevolently in the patient’s best interests, surgically or forcibly inserted into the patient’s body, are fundamentally
considering—from the patient’s perspective—the proportionality or different and more elemental than medical treatment, and therefore
comparison of likely benefits and burdens associated with available ought to be continued as long as they might keep the patient alive. A
medical alternatives. The surrogate frequently is guided in fulfilling his number of state legislatures have embodied this argument in living
or her decision-making role by treatment recommendations offered by will or durable power of attorney statutes that are intended to severely
the attending physician. 11 restrict the prerogative of patients and surrogate decision makers to
A serious problem arises when another relative or friend of the authorize the removal of feeding tubes. Both the wisdom and the con-
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patient accuses the surrogate of making choices that are contrary to stitutionality of these purported restrictions are extremely questionable.
both the patient’s substituted judgment and best interests and that rela- The 1990 case of Nancy Cruzan is still the only US Supreme
tive or friend demands a contrary course of treatment. Such unfortunate Court decision that deals directly with the issue of discontinuing life-
circumstances, such as those surrounding the infamous Florida case prolonging medical treatment. Cruzan was an automobile accident
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