Section 4 - Surrogate Decision-Making

State and federal law recognizes an incompetent individual's right to autonomy and self-determination. In Washington state, there are two mechanisms for effectuating an incompetent individual's right to make health care decisions: advance directives and surrogate-decision making. In the absence of an advance directive, state law allows surrogates to make medical decisions for incompetent individuals. This section will focus on surrogate decision-making in the context of guardianships and informed consent. The Washington state statutes on guardianship and informed consent are included at the end of this chapter.

The sectionsbelow have been (excluding the JCAHO standards), excerpted from the Washington Health Law Manual with permission of the publishers (the Washington State Society of Healthcare Attorneys and the Washington State Hospital Association) and by the chapter's author, Professor Annette Clark, J.D., M.D.

Statutory Authorization for Surrogate Decision-Making

Most individuals have not executed advance directives under the Natural Death Act. In the absence of an advance directive, medical decisions for an incompetent person are made by a surrogate decision-maker. In Washington, the persons authorized to make medical decisions on behalf of an incompetent individual are the following (in order of priority):

• the appointed guardian of the patient, if any;
• the individual, if any, to whom the patient has given a durable power of attorney that encompasses the authority to make health care decisions;
• the patient's spouse
• children of the patient who are at least eighteen years of age;
• parents of the patient; and
• adult brothers and sisters of the patient.(1)

As indicated by the second statutory class listed above, an individual may execute, while competent, a durable power of attorney for health care. The effect of this instrument is to authorize the attorney-in-fact to provide informed consent for health care decisions on the principal's (incompetent individual's) behalf.(2) The attorney-in fact is second only to a court-appointed guardian in decision-making priority under Washington's informed consent statute.(3)

The surrogate decision-making statute specifies that a physician who is seeking informed consent for an incompetent patient, and who has been unsuccessful in locating and obtaining authorization from a competent person in the first or succeeding class, may seek consent from any person in the next class in the order of descending priority.(4) However, a person who has lower priority may not consent if a person of higher priority has refused, and a person in a class with two or more individuals may not give informed consent unless the decision is unanimous.(5)

While the statute dictates a rather rigid hierarchy for surrogate decision-making, in practice, health care providers naturally turn to family members and loved ones to make medical decisions for incompetent patients. The statutory designation of decision-making priority likely has the most effect in situations where the family members, loved ones, and health care providers cannot reach agreement on the appropriate treatment choice.

Standards and Procedures for Surrogate Decision-Making

(a) Substituted Judgment Standard

A surrogate decision-maker must use the doctrine of substituted judgment in consenting to or refusing health care on behalf of an incompetent individual. This standard applies to all medical decisions, whether they involve the discontinuation of life-sustaining treatment or a choice between alternate medical treatments.(6) In each case, the substituted judgment standard requires that the surrogate decision-maker (whether a guardian, attorney-in-fact with authority to make health care decisions, family members, or the court) determine whether the patient, if competent, would have consented to the proposed(7) health care. The surrogate should consider all relevant factors that would influence the patient's medical treatment decisions, including:

• the person's prior statements regarding medical treatment;(8)
• the person's express wishes, even if made while the person is incompetent;
• the patient's religious or moral views regarding medical care or the dying process;
• the person's prognosis if no treatment is given;
• the prognosis if one treatment is chosen over another;
• the risk of adverse side effects from the proposed treatment;
• the intrusiveness or severity of the proposed treatment;
• the ability of the patient to cooperate and assist with post-treatment therapy; and
• the wishes of family and friends, if those wishes would have influenced the patient.(9)

The Washington Supreme Court has specifically stated that judicial intervention is not generally required when a surrogate decision-maker exercises substituted judgment to make a treatment decision for an incompetent individual.(10) If the substituted judgment is made in a clinical setting, it will likely be acted upon unless family members or health care providers strongly disagree with the decision.

(b) Best Interests Standard

When a surrogate decision-maker cannot in good faith ascertain whether the patient, if competent, would have consented to the proposed health care, he or she must determine that the medical treatment is in the patient's best interests before giving consent.(11) Where the person has never been competent, the substituted judgment standard is arguably meaningless, and so the best interests standard is used instead.(12) Factors that should be considered by the surrogate decision-maker in determining whether medical treatment is in the best interests of the incompetent individual include:

• the patient's present level of physical, sensory, emotional, and cognitive functioning;
• the various treatment options and the risks, side effects, and benefits of each of the options;
• the life expectancy and prognosis for recovery with and without treatment;
• the degree of physical pain resulting from the medical condition, treatment, or termination of treatment; and
• the degree of dependence and loss of dignity resulting from the medical condition and treatment.(13)

(c) Judicial Intervention in the Decision-Making Process

Any participant in health care decision-making for an incompetent individual, whether a guardian, attorney-in-fact with authority to make health care decisions, a physician or hospital, or family member, may petition the court for intervention in the medical decision-making process.(14) This occurs most often when family members or health care providers cannot agree on a course of action, particularly with regard to life-sustaining treatment, or where the court is statutorily required to authorize treatment for an incompetent individual. As part of the judicial proceeding, the court will appoint a guardian ad litem to ascertain and protect the interests of the patient, and the court will then determine, in its best judgment, whether the patient, if competent, would have consented to or refused the medical treatment in question.(15)

Role of the Guardian in Medical Decision-Making for Incompetent Individuals

A court-appointed guardian has the legal right and responsibility to make medical decisions for the incompetent individual, and has priority over other surrogate decision-makers under Washington's informed consent statute.(16) In the case of a limited guardianship, the limited guardian may make medical decisions for the incompetent individual where the power to make medical decisions is specifically authorized in the court's order, or where the power is not specifically excluded.(17)

(a) General Powers

Consistent with RCW 7.70.065, a guardian is legally empowered to provide informed consent for health care for the incapacitated individual.(18) In doing so, the guardian is charged with asserting the incapacitated individual's rights and best interests.(19) As a surrogate decision-maker, the guardian is to make health care decisions through the use of the substituted judgment or best interests standards as described above. In addition, an individual's advance directive may specify that a guardian or other surrogate decision-maker is to be guided by the directive and any other clear expressions of his or her desires.(20) Even in the absence of such language, an advance directive may be useful in determining what treatment choices the individual would have made if competent.

(b) Standby Guardian

The person appointed by the court as guardian or limited guardian must file a notice with the court designating a standby guardian or limited guardian.(21) In the event that informed consent for a necessary medical procedure is needed and the guardian or limited guardian cannot be located within four hours of the need for consent arising, the standby guardian or limited guardian may give informed consent.(22)

(c) Limitations on Power

The guardianship statute prohibits guardians from authorizing certain therapies or procedures. For example, if a guardian believes the incapacitated individual requires involuntary civil commitment for mental health treatment, the statutory procedures for involuntary commitment must be followed.(23) In addition, if the guardian believes any of the following procedures are necessary for the proper care of the incompetent person, the guardian must petition the court for an order authorizing the treatment or therapy:

• therapy or other procedures which induce convulsions;
• surgery solely for the purpose of psychotherapy; and
• other psychiatric or mental health procedures that restrict physical freedom of movement, or the rights set forth in RCW 71.05.370.(24)

In construing this statute, the Washington Supreme Court stated that the intent of the statutory limitations is to require court approval before the guardian may consent to highly intrusive, irreversible medical treatment that would seriously affect the incompetent person's bodily integrity.(25) This leaves open the possibility that judicial authorization may be required before a guardian may consent to other invasive, irreversible procedures even though the procedures are not on the statutory list.(26) In addition, before an incompetent individual may be sterilized, a guardian ad litem must be appointed to represent the incompetent person's wishes and a court order must be obtained.(27)

Special Circumstances

(a) Nursing Home Residents

Resident rights regulations entitle residents of nursing homes in the State of Washington to specific rights relating to decision-making, including rights related to health care decision-making (nursing home regulations are introduced in section one of this manual).(28) In general, the resident rights regulations ensure that nursing homes respect the decision-making authority of its residents, or in the case of incapacity, that a nursing home is aware of the identity of the surrogate decision-maker and the scope of authority granted to that person. The regulations provide that upon admission, the nursing homes must determine:

• whether the resident has appointed another person to make health care decisions;
• whether the resident has created any advance directive (which includes the power of attorney, health care directive, code/no code order, anatomical gifts, etc.) or other legal document that establishes a surrogate decision-maker in the future; and
• if the resident is not making decisions, who has the authority for surrogate decision-making and the scope of the authority.(29)

In fulfilling its duty, the nursing home must seek copies of any legal documents that establish the surrogate decision-maker's authority and document in the resident's clinical record the surrogate's name, address, and scope of authority, and the location of the legal documents within the facility.(30) A nursing home may not require a resident to have an advance directive or condition care on the basis of whether or not the resident has executed an advance directive.(31)

The resident rights regulations entitle the resident to a presumption of decision-making authority, which can be overcome if a court has established a guardianship, the resident has made a voluntary appointment of a surrogate decision-maker, a surrogate has been established by a legal document, or the resident has become legally incapacitated.(32) If the resident has been adjudicated by a court to be incapacitated, the court-appointed guardian is the surrogate decision-maker.(33) If the resident has been determined to be incapacitated, but has not been adjudicated an incompetent, the surrogate decision-maker is established through either a legal document, such as a durable power of attorney for health care, or by state law, including the priority list of surrogate decision-makers contained within RCW 7.70.065.(34)

When a nursing home has consulted a surrogate decision-maker to exercise the resident's rights, the nursing home must notify the resident of that fact and provide the resident with the information and opportunity to participate in decision-making to the greatest extent possible.(35) Finally, if at some point the resident regains decision-making capacity, the nursing home must cease to rely on the surrogate decision-maker unless a court order or the resident directs otherwise.(36)

(b) Children

The age of majority in Washington is eighteen.(37) Individuals under the age of eighteen generally lack legal competency to make health care decisions for themselves so that a parent or legal guardian must consent. If the minor's parents are married, either parent may give consent to medical treatment,(38) but consent from both parents should be obtained if circumstances permit. In the case of consent for medical care for children, a number of exceptions and special statutory provisions apply, depending upon the custody and status of the minor and the type of care at issue (e.g., sexually transmitted diseases, abortion, mental health treatment, alcoholism and drug addiction).

(c) Medical Emergencies

Actual informed consent for medical treatment is not required in the event of an emergency; consent is implied under the law. Pursuant to RCW 7.70.050, "If a recognized health care emergency exists and the patient is not legally competent to give an informed consent and/or a person legally authorized to consent on behalf of the patient is not readily available, his consent to required treatment will be implied."(39) This statutory provision is applicable both in circumstances where the individual was legally incompetent to make decisions prior to the medical emergency (e.g.,minor, adjudicated incompetent) and where the individual has been rendered incapacitated by the health care emergency.

The Joint Commission on Accreditation of Healthcare Organizations (JCAHO)

JCAHO has issued standards addressing surrogate decision-making and guardianship services. Any JCAHO-accredited-facility, including hospitals, outpatient clinics and nursing homes must adhere to JCAHO standards in order to retain its accreditation.

The following JCAHO standards address these issues:

RI.1.2.3 - The family participates in care decisions.

• When a patient cannot make decisions regarding his or her care, a surrogate decision-maker must be identified.
• In the case of an unemancipated minor, the family or guardian is legally responsible for approving the care prescribed.
• The patient has the right to exclude any or all family members from participating in his or her care decisions.

RI.1.5 - The hospital supports the patient's right to access protective services.

• When a hospital serves a patient population that often needs protective services (such as a guardianship), it should have ways of helping patients' families and the courts determine a patient's need for special services.
• An independent assessment ensures a patient's best interests are of primary concern.
• If a hospital serves a population where these services are especially pertinent, the patient should be given written information on state client advocacy groups.

1. RCW 7.70.065(1).
2. RCW 11.94.010(3).
3. See RCW 7.70.065(1)(b).
4. RCW 7.70.065(2).
5. RCW 7.70.065(2)(a-b).
6. In re Ingram, 102 Wn.2d 827, 839, 689 P.2d 1363 (1984).
7. RCW 7.70.065(3). See also In re Colyer, 99 Wn.2d at 137 (holding that life-sustaining treatment may be withdrawn if it is the guardian's judgment that the patient, if competent, would have chosen to withdraw treatment).
8. The weight to be given to prior statements depends upon the age and maturity of the person, the context of the statements, and the connection between statements and the patient's condition. In re Grant, 109 Wn.2d at 567.
9. In re Ingram, 102 Wn.2d at 840.
10. In re Colyer, 99 Wn.2d at 127-28.
11. RCW 7.70.065(3). See also In re Grant, 109 Wn.2d 545, 567-68, 747 P.2d 445 (1987).
12. See In re Hamlin, 102 Wn.2d 810, 814-15, 689 P.2d 1372 (1984).
13. In re Grant, 109 Wn.2d at 568.
14. In re Colyer, 99 Wn.2d at 136.
15. In re Hamlin, 102 Wn.2d at 816-17.
16. RCW 7.70.065(1).
17. RCW 11.88.095(3).
18. 18 RCW 11.92.043(5).
19. RCW 11.92.043(5).
20. RCW 70.122.030(1)(b).
21. RCW 11.88.125(1).
22. RCW 11.92.043(5); see also RCW 11.88.125(3) (granting authority to the standby guardian to give informed consent as authorized in RCW 11.92.040).
23. RCW 11.92.043(5).
24. RCW 11.92.043(5)(a-c).
25. In re Ingram, 102 Wn.2d at 837.
26. But see In re Colyer, 99 Wn.2d at 129 (stating that these statutory limitations on a guardian's power must be narrowly construed).
27. In re Hayes, 93 Wn.2d 228, 608 P.2d 635 (1980).
28. See WAC 388-97-055.
29. WAC 388-97-055(1).
30. WAC 388-97-055(2)(a-b).
31. WAC 388-97-065(3)(b).
32. WAC 388-97-055(6).
33. WAC 388-97-055(3)(b).
34. WAC 388-97-055(3)(c).
35. WAC 388-97-055(8)(a-b).
36. WAC 388-97-055(4)(b).
37. RCW 26.28.010.
38. RCW 26.16.125.
39. RCW 7.70.050(4).

next page ›››