Need to Determine Medical Decision-Making Capacity: Surrogates as well as Patients

There is more work for the physician to do when attempting to establish a medical decision for a patient who is incapacitated to make decisions but who has a surrogate, designated or not. The physician must now determine whether the surrogate has the capacity to make a medical decision for the patient. Specifically this means whether the surrogate is cognitively, medically and emotionally able to make a decision as honest substituted judgment or in the true best interest of the patient, free of self-interest or other various conflicts of interest. [A substituted judgment is the act of making a decision based on knowledge of the values and preferences of the patient and not what the surrogate would have wanted if they were in the patient’s position. If these are not known, then the surrogate must make a decision in the patient’s best interests, that is, a decision that would most likely contribute maximally to the patient’s benefit or what an average, reasonable person might decide.]


K.A. Bramstedt writing an article in Internal Medicine Journal 2003; 33: 257–259 titled “Questioning the decision-making capacity of surrogates” gives an example of her own experience and discusses the approaches to deal with this responsibility. Interestingly, she points out, in the following excerpt, the weakness of substituted judgment by the surrogate. (Her resource references are deleted in this excerpt. Read the original article for details.)

“Research has shown that the presence of documented patient health-care preferences such as an AdvanceDirective, or even prior verbal discussions between the surrogate and patient do not automatically facilitate substituted judgment by an appointed surrogate. Frequently, surrogates project their own values and health-care preferences into their decision-making for the patients for whom they are decisionally responsible. Friends and family functioning as surrogates tend to overestimate, while physicians tend to underestimate, the amount of medical intervention the patient would want. However, studies have also shown that patients believe that their appointed surrogates will
indeed act according to their written or spoken wishes. Whether patient, physician or surrogate, people tend to believe that others are likely to behave as they do; thus their decisions for others are frequently projections of their own values and preferences Substituted judgment is thus difficult for surrogates to perform and therefore unlikely to be realized, despite the wishes of patients.

However, in her conclusion, she does not feel that substituted judgement is “fatally flawed” but is useful and “might be aided by descriptively written advance care plans, and by research generating methods to better convey the descriptive information to surrogates for their substituted judgment activities.”

In previous postings, I have mentioned this responsibility of the physician to evaluate the surrogate as part of considering the surrogate’s request. The physician, of course, has neither the time nor resources to turn into a private detective with regard to the surrogate’s motives for the decision. However, taking a little time to communicate with the surrogate and evaluate the surrogate’s responses to questions dealing with the basis or rationale for the decision or request may be sufficient for either physician confidence or concern about the surrogate. If there is concern about the capacity of the surrogate, the physician has the duty to take this into consideration before writing orders. It may require the physician to look to another surrogate, have the assistance of an ethics committee or even involve the courts. Any questions? ..Maurice.