Treatment Decisions on Behalf of Incompetent Patients

1
Treatment Decisions on Behalf of Incompetent
Patients
2
Two categories of incompetent patients

• Persistent Vegetative State
• Personhood may be called into question
• Unclear if they have interests
• Almost all others
• Clearly are persons
• Clearly have interests of some sort

3
A spectrum of patients

• Competent patient, chooses for self
• Incompetent, clear advance directive
• Incompetent, clearly stated wishes to family
• Incompetent, family knows general values
• Incompetent, values unknown

4
Questions

• How far down the spectrum does it make sense to
  speak of maximizing respect for patient autonomy?
• At what point should we decide that autonomy
  irrelevant and must decide on other grounds?
• Are best interests those grounds?

5
Substituted judgment

• Based on strong desire to respect autonomy
• Decide as person would choose for self
• Take current state into account as fact in
  making choice
• Thought experiment If she could magically be
  competent again long enough to explain her
  current status to her, what would she choose?

6
Saikewicz, MA, 1977

• 67 years old, mental age of 3
• Developed leukemia
• Chemo could add 3-6 mo at high risk
• Decided not to provide chemo and allow to die
  with comfort care
• Court This is what J. S. would want if he could
  be rational and yet understand himself as a
  retarded individual

7
Saikewicz Criticism

• Substituted judgment formulation stretches
  respect for autonomy out of recognition
• Decision not to give chemo was justifiable
• Better formulation ratio of burdens to benefits
  given patients experience as severely mentally
  retarded

8
From Saikewicz to Conroy

• Subjective standard of best interests I choose
  for myself
• Objective standard of best interests others
  choose for me based on clearly observable signs
  of suffering or lack of suffering

9
The fear of quality of life

• Need to distinguish
• Your ongoing life is of unacceptable quality to
  you based on your values
• Your ongoing life is of unacceptable quality to
  society based on societys values
• Slippery slope between first and second
  approach?

10
The Conroy approach

• Patient unable to choose and personal values
  poorly known
• Great fear that treatment will be withdrawn
  prematurely based on social quality of life
• But realize that fear may occasionally lead to
  great suffering due to overly aggressive
  treatment
• Demand strong evidence of suffering to stop

11
Is there an alternative approach?

• Arras, Rhoden
• Admit that substituted judgment may be a myth and
  often best interests are indeterminate
• Principle of family privacy allow ones family
  or other loved ones to make choice if no clear
  advance directive burden of proof on others to
  dispute or overturn

12
Role of family

• My family should choose for me because they are
  the ones most likely to know my values and choose
  exactly what I would have chosen
• My family should choose for me because they are
  my family and there is no one more fitting to
  make choices for me

13
A thought experiment

• Who would you want to make choices for you--
• Your family and/or a close friend?
• Or the psychic stranger whom you never met but
  who has track record of guessing with 100
  accuracy what you would have chosen in any
  circumstance?

14
Arguments against

• Families may be abusive or neglectful
• Families may choose based on what they want and
  not on what is good for the patient
• I cant let him go just yet
• Son from San Diego-- acting out of guilt

15
Arguments for

• Rare for family to be abusive or neglectful
• Law can handle the rare cases
• Family emotions can be resolved through sensitive
  counseling
• If family disqualified, who is likely to make
  better decisions?

16
Demented Elderly Patient

• When competent, expressed strong desire not to be
  kept alive if severely demented
• Is now in demented state
• Has no memory of past life
• Seems to take joy in simple pleasures of present
  existence and no evidence of pain or suffering

17
Demented Elderly Patient

• Dresser Robertson treat according to present
  best interests (so favor life prolonging
  treatment)
• Rhoden treat according to wishes when competent
  (so favor refusal of life prolonging treatment)
• Which counts most as respect for persons?

18
What makes you the same person?

• Continuity of memory with past selves
• Same human relationships
• Inhabiting the same body
• Having the same soul

19
Demented Elderly Patient

• Can be argued that this patient is a different
  person
• Has no memory continuity with old person
• Has different values and preferences
• Feels no indignity in a state which old person
  would have abhorred
• Derives pleasure from present state

20
How to show most respect?

• Dresser Robertson Refuse to end life of Person
  2 at the say-so of Person 1
• Rhoden Refuse to keep the body of Person 1
  imprisoned in a state which Person 1 said was
  utterly undignified, forcing others to have final
  memories of Person 1 as Person 2 (which Person
  1 most wanted to avoid)