Commentary: narrative views of personal identity and substituted judgment in surrogate decision making

Ethical reflection support for potential organ donors' relatives: A narrative review

BACKGROUND

Even in countries with an opt-out or presumed consent system, relatives have a considerable influence on the post-mortem organ harvesting decision. However, their reflection capacity may be compromised by grief, and they are, therefore, often prone to choose refusal as default option. Quite often, it results in late remorse and dissatisfaction. So, a high-quality reflection support seems critical to enable them to gain a stable position and a long-term peace of mind, and also avoid undue loss of potential grafts. In practice, recent studies have shown that the ethical aspects of reflection are rarely and often poorly discussed with relatives and that no or incomplete guidance is offered. No review of the literature is available to date, although it could be of value to improve the quality of the daily practice.

OBJECTIVES

The objective was to review and synthesize the main concepts and approaches, theories and practices of ethical reflection support of the relatives or surrogates of potential post-mortem organ donors.

RESEARCH DESIGN

A narrative review was performed in the medical, psychological and ethical fields using PubMed, PsycArticles and Web of Science databases (1980-2020).

RESULTS

Out of 150 papers, 25 were finally retained. Four themes were drawn: the moral status of the potential post-mortem organ donor, the principlistic approach with its limits and critics, the narrative approach and the transcendental approach.

DISCUSSION

This review suggests an extension of psychological support towards ethical reflection support. The process of helping relatives in their ethical exploration of post-mortem organ donation is psychologically and morally characterized. The need for specialized professionals educated and experienced both in clinical psychology and in health ethics to carry out this task is discussed.

PRACTICAL IMPACT

This review could contribute to optimize the quality of the ethical reflection support by initiating an evolution from an empirical, partial and individual-dependent support to a more systematized, professionalized and exhaustive support.

Importance Hierarchy of Surrogate Medical Decision Making Determinants: A Q-Methodology Study in Middle Eastern and East Asian Men

BACKGROUND

Factors other than patient's preference may influence surrogate medical decision making in a culture- and viewpoint-dependent way. We explored the importance hierarchy of potential surrogate medical decision making determinants to Middle-Eastern (ME) and East-Asian (EA) men according to their norm-perception (N-viewpoint), preference as patients (P-viewpoint), and preference as surrogate decision-makers (S-viewpoint).

METHODS

Each respondent (120 ME, 120 EA) sorted 28 items reflecting potential determinants into a fixed distribution of importance hierarchy according to the three viewpoints. Latent decision making models were explored by by-person factor analysis (Q-methodology).

RESULTS

Six models were identified for each ME and EA viewpoint (total 36). Patient's health-related, patient's preference-related, and society's interests-related determinants were strongly embraced in 34, 3, and zero models and strongly discounted in 2, 5, and 21 models, respectively. Patient's religious/spiritual belief was strongly embraced in 6 EA models compared to 2 ME models and strongly discounted in 2 EA models compared to 5 ME models. Further, family-centric and surrogate's interest-related determinants were strongly embraced in 8 EA models compared to 1 ME model. They were also strongly embraced in 5 P-viewpoint compared to 2 S-viewpoint models and strongly discounted in 4 P-viewpoint compared to 11 S-viewpoint models. Despite the overall predominance of patient's health-related determinants and culture- and viewpoint-dependent differences, Q-methodology analysis identified relatively patient's preference-influenced, religious/spiritual beliefs-influenced, emotion-influenced, and familism-influenced models and showed notable overlap in models.

CONCLUSIONS

Patient's health was more important than other potential medical surrogate decision making determinants, including patient's preference, for both ME and EA men and in all viewpoints. The relative importance of some determinants was culture- and viewpoint- dependent and allowed description of different albeit overlapping models.

Factors underlying surrogate medical decision-making in middle eastern and east Asian women: a Q-methodology study

Background

It is not clear how lay people prioritize the various, sometimes conflicting, interests when they make surrogate medical decisions, especially in non-Western cultures. The extent such decisions are perspective-related is also not well documented.

Methods

We explored the relative importance of 28 surrogate decision-making factors to 120 Middle-Eastern (ME) and 120 East-Asian (EA) women from three perspectives, norm-perception (N), preference as patient (P), and preference as surrogate decision-maker (S). Each respondent force-ranked (one to nine) 28 opinion-items according to each perspective. Items’ ranks were analyzed by averaging-analysis and Q-methodology.

Results

Respondents’ mean (SD) age was 33.2 (7.9) years; all ME were Muslims, 83% of EA were Christians. “Trying everything possible to save patient,” “Improving patient health,” “Patient pain and suffering,” and/or “What is in the best interests of patient” were the three most-important items, whereas “Effect of caring for patient on all patients in society,” “Effect of caring for patient on patients with same disease,” and/or “Cost to society from caring for patient” were among the three least-important items, in each ME and EA perspectives. P-perspective assigned higher mean ranks to family and surrogate’s needs and burdens-related items, and lower mean rank to “Fear of loss” than S-perspective (p<0.001). ME assigned higher mean ranks to “Medical facts” and “Surrogate own wishes for patient” and lower mean rank to “Family needs” in all perspectives (p<0.001). Q-methodology identified models that were relatively patient’s preference-, patient’s religious/spiritual beliefs-, or emotion-dependent (all perspectives); medical facts-dependent (N- and S-perspectives), financial needs-dependent (P- and S-perspectives), and family needs-dependent (P-perspective).

Conclusions

1) Patient’s health was more important than patient’s preference to ME and EA women; society interest was least important. 2) Family and surrogate’s needs/ burdens were more important, whereas fear of loss was less important to respondents as patients than as surrogate decision-makers. 3) Family needs were more important to EA than ME respondents, the opposite was true for medical facts and surrogate’s wishes for patient. 4) Q-methodology models that relatively emphasized various surrogate decision-making factors overlapped the ME and EA women’ three perspectives.

Prediction of life-story narrative for end-of-life surrogate's decision-making is inadequate: a Q-methodology study

Background

Substituted judgment assumes adequate knowledge of patient’s mind-set. However, surrogates’ prediction of individual healthcare decisions is often inadequate and may be based on shared background rather than patient-specific knowledge. It is not known whether surrogate’s prediction of patient’s integrative life-story narrative is better.

Methods

Respondents in 90 family pairs (30 husband-wife, 30 parent-child, 30 sibling-sibling) rank-ordered 47 end-of-life statements as life-story narrative measure (Q-sort) and completed instruments on decision-control preference and healthcare-outcomes acceptability as control measures, from respondent’s view (respondent-personal) and predicted pair’s view (respondent-surrogate). They also scored their confidence in surrogate’s decision-making (0 to 4 = maximum) and familiarity with pair’s healthcare-preferences (1 to 4 = maximum). Life-story narratives’ prediction was examined by calculating correlation of statements’ ranking scores between respondent-personal and respondent-surrogate Q-sorts (projection) and between respondent-surrogate and pair-personal Q-sorts before (simulation) and after controlling for correlation with respondent-personal scores (adjusted-simulation), and by comparing percentages of respondent-surrogate Q-sorts co-loading with pair-personal vs. respondent-personal Q-sorts. Accuracy in predicting decision-control preference and healthcare-outcomes acceptability was determined by percent concordance. Results were compared among subgroups defined by intra-pair relationship, surrogate’s decision-making confidence, and healthcare-preferences familiarity.

Results

Mean (SD) age was 35.4 (10.3) years, 69% were females, and 73 and 80% reported ≥ very good health and life-quality, respectively. Mean surrogate’s decision-making confidence score was 3.35 (0.58) and 75% were ≥ familiar with pair’s healthcare-preferences. Mean (95% confidence interval) projection, simulation, and adjusted-simulation correlations were 0.68 (0.67–0.69), 0.42 (0.40–0.44), and 0.26 (0.24–0.28), respectively. Out of 180 respondent-surrogate Q-sorts, 24, 9, and 32% co-loaded with respondent-personal, pair-personal, or both Q-sorts, respectively. Accuracy in predicting decision-control preference and healthcare-outcomes acceptability was 47 and 52%, respectively. Surrogate’s decision-making confidence score correlated with adjusted-simulation’s correlation score (rho = 0.18, p = 0.01). There were significant differences among the husband-wife, parent-child, and sibling-sibling subgroups in percentage of respondent-surrogate Q-sorts co-loading with pair-personal Q-sorts (38, 32, 55%, respectively, p = 0.03) and percent agreement on healthcare-outcomes acceptability (55, 35, and 67%, respectively, p = 0.002).

Conclusions

Despite high self-reported surrogate’s decision-making confidence and healthcare-preferences familiarity, family surrogates are variably inadequate in simulating life-story narratives. Simulation accuracy may not follow the next-of-kin concept and is 38% based on shared background.

Electronic supplementary material

The online version of this article (10.1186/s12910-019-0368-8) contains supplementary material, which is available to authorized users.

Clarifying substituted judgement: the endorsed life approach

A primary goal of clinical practice is to respect patient autonomy. To promote this goal for patients who have lost the ability to make their own decisions, commentators recommend that surrogates make their treatment decisions based on the substituted judgment standard. This standard is commonly interpreted as directing surrogates to make the decision the patient would have made in the circumstances, if the patient were competent. However, recent commentators have argued that this approach--attempting to make the decision the patient would have made if competent--is theoretically problematic, practically infeasible, and ignores the interests of the patient's family and loved ones. These commentators conclude that the substituted judgment standard should be revised significantly, or abandoned altogether. While this response would avoid the cited problems, it also would require substantial changes to clinical practice and would raise significant problems of its own. The present paper thus considers the possibility that the criticisms do not point to problems with the substituted judgment standard itself; instead, they point to problems with the way it is most commonly interpreted. This analysis suggests that the substituted judgment standard need not be dramatically revised or abandoned. Instead, it should be interpreted in a way that effectively promotes respect for the autonomy of incompetent patients. The 'endorsed life' interpretation described here helps clinicians and surrogates to achieve this important goal. To clarify this approach, we explain how it differs from three other recently proposed alternatives to the standard interpretation of the substituted judgment standard.

The weight attributed to patient values in determining best interests

In W v M and Others (Re M) the Court of Protection considered whether withdrawal of artificial nutrition and hydration was in the best interests of a person in minimally conscious state. The Mental Capacity Act 2005 states that in determining best interests the decision-maker must consider, so far as is reasonably ascertainable, the patient's wishes, feelings, beliefs and values. Baker J. indicated that a high level of specificity is required in order to attribute significant weight to these factors. It is preservation of life which carries substantial weight in the best interests' balance sheet. Could the (prior) values of a patient ever meet the probative standard necessary to offset the weight accorded to preservation of life? Rather than referencing the patient's values to specific circumstances and treatments they could be more effectively considered as part of the patient narrative, how the patient would want her life story to continue/cease.

Some comments on the substituted judgement standard

On a traditional interpretation of the substituted judgement standard (SJS) a person who makes treatment decisions on behalf of a non-competent patient (e.g. concerning euthanasia) ought to decide as the patient would have decided had she been competent. I propose an alternative interpretation of SJS in which the surrogate is required to infer what the patient actually thought about these end-of-life decisions. In clarifying SJS it is also important to differentiate the patient's consent and preference. If SJS is part of an autonomy ideal of the sort found in Kantian ethics, consent seems more important than preference. From a utilitarian perspective a preference-based reading of SJS seems natural. I argue that the justification of SJS within a utilitarian framework will boil down to the question whether a non-competent patient can be said to have any surviving preferences. If we give a virtue-ethical justification of SJS the relative importance of consent and preferences depends on which virtue one stresses--respect or care. I argue that SJS might be an independent normative method for extending the patient's autonomy, both from a Kantian and a virtue ethical perspective.

Substituted judgment: the limitations of autonomy in surrogate decision making

Substituted judgment is often invoked as a guide for decision making when a patient lacks decision making capacity and has no advance directive. Using substituted judgment, doctors and family members try to make the decision that the patient would have made if he or she were able to make decisions. However, empirical evidence suggests that the moral basis for substituted judgment is unsound. In spite of this, many physicians and bioethicists continue to rely on the notion of substituted judgment. Given compelling evidence that the use of substituted judgment has insurmountable flaws, other approaches should be considered. One approach provides limits on decision making using a best interest standard based on community norms. A second approach uses narrative techniques and focuses on each patient's dignity and individuality rather than his or her autonomy.

"What the patient would have decided": a fundamental problem with the substituted judgment standard

Decision making for incompetent patients is a much-discussed topic in bioethics. According to one influential decision making standard, the substituted judgment standard, the decision that ought to be made for the incompetent patient is the decision the patient would have made, had he or she been competent. Although the merits of this standard have been extensively debated, some important issues have not been sufficiently explored. One fundamental problem is that the substituted judgment standard, as commonly formulated, is indeterminate in content and thus offers the surrogate little or no guidance. What the standard does not specify is just how competent one should imagine the patient to be, and what else one ought to envision about the patient's hypothetical outlook and the circumstances surrounding his or her decision making. The article discusses this problem of underdetermined decision conditions.

Why doesn't a family member of a person with advanced dementia use a substituted judgment when making a decision for that person?

OBJECTIVE

The objective of this study was to identify what standard of decision making a family member uses when making medical decisions for their relative with advanced dementia.

METHODS

Thirty family members of patients with advanced dementia from an Alzheimer disease center and a suburban long-term care facility were interviewed using a semistructured interview. All interviews were audiotaped, transcribed, and analyzed using qualitative data analysis techniques.

RESULTS

Family members were split almost evenly in the standard they used when making medical decisions for their relative: substituted judgment (43%) or best interests (57%). However, few who used the substituted judgment standard viewed it as distinct from best interests. Instead, both standards were taken into consideration when making medical decisions. In addition to not having discussions about healthcare preferences, the reasons for not using a substituted judgment included: the need for family consensus, unrealistic expectations of the patient, the need to incorporate their relative's quality of life into the decision, and the influence of healthcare professionals. Family members who did not have discussions about healthcare preferences identified various barriers to the discussion, including waiting too long, avoiding the topic, and the patient's denial of dementia.

CONCLUSION

These data suggest several reasons why surrogate decision-makers for persons with advanced dementia do not use the substituted judgment standard and the potential value of interventions that would allow patients with early-stage dementia and their family members to discuss healthcare preferences.

Contracts, covenants and advance care planning: an empirical study of the moral obligations of patient and proxy

Previously we had speculated that the patient-proxy relationship existed on a contractual to covenantal continuum. In order to assess this hypothesis, and to better understand the moral obligations of the patient-proxy relationship, we surveyed 50 patient-proxy pairs as well as 52 individuals who had acted as proxies for someone who had died. Using structured vignettes representative of three distinct disease trajectories (cancer, acute stroke, and congestive heart failure), we assessed whether respondents believed that proxies should follow explicit instructions regarding life-sustaining therapy and act contractually or whether more discretionary or covenantal judgments were ethically permissible. Additional variables included the valence of initial patient instructions--for example, "to do nothing" or "to do everything"--as well as the quality of information available to the proxy. Responses were graded on a contractual to covenantal continuum using a modified Likert scale employing a prospectively scored survey instrument. Our data indicate that the patient-proxy relationship exists on a contractual to covenantal continuum and that variables such as disease trajectory, the clarity of prognosis, instructional valence, and the quality of patient instructions result in statistically significant differences in response. The use of interpretative or covenantal judgment was desired by patients and proxies when the prognosis was grim, even if initial instructions were to pursue more aggressive care. Nonetheless, there was a valence effect: patients and proxies intended that negative instructions to be left alone be heeded. These data suggest that the delegation of patient self-determination is morally complex. Advance care planning should take into account both the exercise of autonomy and the interpretative burdens assumed by the proxy. Patients and proxies think inductively and contextually. Neither group viewed deviation from patient instructions as a violation of the principal's autonomy. Instead of adhering to narrow notions of patient self-determination, respondents made nuanced and contextually informed moral judgments. These findings have implications for patient education as well as the legal norms that guide advance care planning.

Surrogate decision-making: judgment standard preferences of older adults

This qualitative study examines the judgment standard preferences of older adults related to surrogate decision-making for medical treatment. Thirty community dwelling adults over the age of 60 were presented with scenarios that depicted three decision-making standards, two of which are the predominant legal standards (substituted judgment and best interests), and a proposed third standard that allows the surrogate to consider the interests of the family in the decision-making process (best judgment). Half of the sample preferred substituted judgment, five preferred best interests, and ten chose best judgment. Selected cases are presented that demonstrate the themes associated with each judgment standard preference.

Future states: the axioms underlying prospective, future-oriented, health planning instruments

Proscriptive planning exercises are critical to and generally accepted as integral to health planning at varying scales. These require specific instruments designed to predict future actions on the basis of present knowledge. At the macro-level of health economics, for example, a number of future-oriented Quality of Life Instruments (QL) are commonly employed. At the level of individual decision making, on the other hand, Advance Directives (AD's) are advanced as a means by which healthy individuals can assure their wishes will be carried out if at some future point they are incapacitated. As proscriptive tools, both instrument classes appear to share an axiomatic set whose individual parts have not been rigorously considered. This paper attempts to first identify and then consider a set of five axioms underlying future oriented health planning instruments. These axioms are then critiqued using data from a pre-test survey designed specifically to address their assumptions. Results appear to challenge the validity of the axioms underlying the proscriptive planning instruments.