3/16/2012

Ethical Challenges
in Medical Decision Making

Phil Lawson MD, ABHPM

Mud Conference
2012

Objectives
1. Define autonomy, beneficence, non
maleficence, and justice
2. Balance competing medical ethics in
making decisions about patient care
3. Define Decision Making Capacity
4. Discuss a process to assess capacity
5. Differentiate Capacity and Competence

Medical Ethics
Medical ethics and principles
1. Autonomy
2. Beneficence
3. Nonmaleficence
4. Justice
5. Veracity
6. Fidelity

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The Basic Ethical Principles

Autonomy:
„self-rule‟
- promotes patients to act as their own agent
- free will with informed consent

The down side:

Consumerism: commitment to non-
involvement in client decision making
Non Caring

The Basic Ethical Principles

Beneficence:
Do good (or „provide benefit‟ )

- the basic principle of “caring”

- act in accordance with a patient‟s welfare

The down side

Paternalism: health provider makes decision for the
patient based on provider‟s values more than
patient‟s values

The Basic Ethical Principles

Non maleficence:
Do no harm

- the calculation of risk in medical decision

making and determining risk/benefit ratio
- the balance of benefit and harm = utility

The down side

Non action or unwillingness to offer treatments with
questionable benefit

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The Basic Ethical Principles

Justice:
Be fair (distributive justice > entitlement)

- the appropriate distribution of limited resources;

non discrimination
- transparency, accountability and consistency

The down side

Restriction of higher end resources from those who
could “afford” it
Transparency can drive inappropriate practice (data
mongering)

Other Ethical Principles

Truth-telling or Veracity:

- full, honest disclosure

The down side

Assaulting patients with “the truth”

Other Ethical Principles

Fidelity:

-do as you say you will do +

respect confidentiality

The down side

Confidentialty can impede quality and efficiency of
care

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Ethical Principle Moral basis Over Emphasis

Autonomy Respect for Consumerism

individual Lack of caring
Beneficence Do good Paternalism
Non- maleficence Do no harm Lack of action

Justice Be fair Lack of

individualization
Veracity Be truthful Truth causing harm

Fidelity Maintain Treating patient as

confidentiality an “island”

Ethics

“The practice of ethics is NOT the

application of rules; but the careful
consideration of principles in the complex
world of decision making about human
action.”

A Case to Demonstrate
92 yo woman: tear of her quadraceps
muscle; wants surgery as she has lost
independence.
- Preop: new anemia (Hgb 9) and
hyponatremic (Na 127)
- Refuses further workup as angry she has
been “put off” so long (orthopedist
appropriately tried conservative therapy)
- WANTS SURGERY NOW!

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Apply the ethical principles to assist in

making a decision about care:
- Autonomy
- Beneficience
- Non maleficence
- Justice
- Veracity and Fidelity

Decision Making Capacity

The ability (of a patient) to be able to
make their own decisions about medical
care (ethically and legally)

Capacity and Competence

Capacity Competence
Medical Legal
MD/ARNP assessment Judge assessment
Inexpensive Costly
Immediate/brief Time consuming
Gray/Unclear often Either/Or
Can fluctuate and is Is semi-permanent and
decision/task specific global in most cases
Requires substitute Requires permanent
decision maker guardian

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THE LAW
New Hampshire RSA 137: J

www.gencourt.state.nh.us/rsa/html/x/137-j/137-j-mrg.htm

Decision Making Capacity

New Hampshire Legal Definition:

NH RSA 137-J:2(V)
“..the ability to understand and
appreciate generally the nature and
consequences of a health care decision,
including the significant benefits and
harms of and reasonable alternatives to
any proposed health care.”

Decision Making Capacity

Clinical Concepts:
“the ability to understand”:
 the medical problem (“generally the nature
and consequences of ”)
 the options for care (“alternatives ”)
 the risks and benefits of each option
(“significant benefits and harms ”)

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Decision Making Capacity

Definitions:
“the ability to appreciate ”:
 ability to reason, attach personal meaning, and
justify options and choice
 element of free choice
 not controlled by others or a mental health
condition
 reasoning is consistent with known values

Decision Making Capacity

To have capacity, a patient must:
1. Understand problem and options
2. Reason between the options
3. Appreciate personal nature of options
and choose consistent with values
4. Communicate the choice

… in a manner consistent with intellect, personal

environment and culture

Decision Making Capacity

 Capacity is Presumed
 Onus on clinician to prove lack of capacity.

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The legal decision tree

1. Presume capacity.
2. If any red flags are apparent; assess
capacity.
 Obligation to assess is a “sliding scale”

Decision Making Capacity

Red Flags (When we should not presume):

 Significant mental illness especially thought

disorders
 Dementia
 Delerium
 Either end of age spectrum
 Polypharmacy

Red Flags: When we should not presume

 Making a choice not consistent with prior
values and choices
 Making a choice that has high risk of harm
and low risk of benefit
 Refusing a treatment that has high risk of
benefit and low risk of harm

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Legal Decision Tree

3. If patient does NOT have capacity:
Find substitute decision maker (SDM)
 In NH: ONLY legal authority to be a SDM is Durable
Power of Attorney for Healthcare (DPOAH) as
defined in an Advance Directive.

Surrogate Decision Makers

Hierarchy in most states:
1. Spouse
2. Child or majority of adult children
3. Parent(s)
4. Sibling(s)
5. Nearest living relative

NH law: No hierarchy

The legal decision tree

4. Where a patient lacks capacity, and there is
no DPOAH -> only legal authority is a
(temporary) court appointed guardian

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Legal Decision Tree

Presume Capacity;
If „red flags‟:
Assess capacity

Lacks capacity Has capacity:

to make Patient makes
medical decision decision

Legal Decision Tree

Lacks capacity=
needs substitute
decision maker

Has DPOAH:
DPOAH makes No DPOAH
decision

Legal Decision Tree

No DPOAH

Emergency = Non emergency:

Obtain temporary
risk to „life or limb‟,
court appointed
then Proceed guardian

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Court Appointed Guardianship

 Expensive depending on complexity
 The NH Bureau of Adult and Elderly Services
(BEAS) reluctant to proceed without
neuropsychiatric evaluation
 Days to months to obtain
 Court appointed guardians are not trained in
palliative/ end of life care
 Most efficient if a family member petitions

Capacity
Capacity is:
 A slope not a step
 Can fluctuate over time
 Specific to the medical decision
 One can have capacity to make a simple but not
complex medical decision
 ie: assign DPOAH but not make a medical decision

Capacity
 Does not require a psychiatrist;MD/DO or NP
 Best provider: the one with the best
knowledge of the patient and the medical
decision to be made
 Sometimes cannot be done at one visit
 Requires listening skills, not speaking skills

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Situations?/ Cases?

Bill
62 yo previously healthy patient other
than major depression develops empyema
and acute renal failure.
 states he wants treatment when asked by
hospitalist
 transferred DHMC
 refuses decortication and hemodialysis
 transferred back to LRH to assist and
control symptoms and die

Thelma
87 yo female presents for 3rd time in last 6
months due to CHF (normal EF)
 Wants to be with her husband who has died
 Losing independence at home and poor self care
 Asks what will happen if she stops her meds
 Told likely would get fluid overload and die
 Asks if symptoms could be controlled and when
assured then states she wants to stop all meds
and get symptom control to die

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Judd
51 year old cachetic (95 lb) male in
hospital due to pneumonia not recovering
 5 year hx metastatic prostate ca multiple
mounting complications (c diff, recurrent SVT,
hypotension, hypoalbuminemia and edema)
 not eating and resistant to attempts to assist
in recovery from pneumonia
 full code and states he wants to treat all
conditions and get back to work

Judd
 Also states he does not want to linger, only
wants comfort care when he is dying, and “if I
knew what this past year was going to be like, I
would have preferred to die.”
 Refuses to eat and angrily reacts to anyone
suggesting his recovery would benefit from
better nutrition
 Has a different symptom (often different pain
source) that comes and goes each day when
PT/OT comes by to help him

Gerard
65 yo male malnourished alcoholic
 Admitted for acute sepsis
 No prior medical care until saw surgeon 3 wks
previous for non-healing stage IV LE ulcers
 10 cm hepatocellular carcinoma dx during
treatment for ulcers
 Initially alert

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Gerard
 Suddenly develops acute renal failure and
loses decision making capacity
 Requires dialysis or will die
 Attending surgeon thinks comfort care;
GI consultant pushing hard for dialysis

Gerard
 Only „family‟ is son of a former girlfriend
who he raised (who is on probation)
 Owns own home where they lived
 Has no AD‟s, no financial will
 Ethics consultation requested

Other examples
1. Access to harmful treatment
 Radiation and chemotherapy at end of life
(ECOG IV)
2. Access to treatments that cannot be
afforded
 Targeted vemurafenib and ipilimumab for
melanoma with BRAF mutation
 $50,000 + $120,000 for a course of therapy

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Other examples
 Physician assisted suicide

Complicating Factors
NH RSA 137-J:5, IV
“ irrespective of the principal's lack of capacity to
make health care decisions, treatment may not
be given to or withheld from the principal over
the principal's objection unless the principal's
advance directive includes the following
statement initialed by the principal, "Even if I am
incapacitated and I object to treatment,
treatment may be given to me against my
objection.'' “

Complicating Factors
 NH RSA 137-J:10, II
“…medically administered nutrition and hydration and life-
sustaining treatment shall not be withdrawn or withheld under
an advance directive unless:
(a) There is a clear expression of such intent in the directive;
(b) The principal objects pursuant to RSA 137-J:5, IV; or
(c) Such treatment would have the unintended consequence
of hastening death or causing irreparable harm as certified by
an attending physician and a physician knowledgeable about
the patient's condition.”

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