‘What do you mean I cannot consent for my grandmother's medical procedure?": Key issues with state default surrogate decision making laws

Background: When a patient is unable to make medical decisions, a health care surrogate must be designated to make decisions on the patient’s behalf.  Studies show that fewer than 20% of patients have completed health care representative forms to legally designate a surrogate.  Without a prior designation, surrogates are determined via state statute.  Currently, there is no up-to-date comprehensive evaluation of state surrogate legislation. 

Methods:  A survey of state legislative codes was conducted to determine: 1) whether the state has a default surrogate statute; 2) who is included as an acceptable legal surrogate; and 3) whether there is a hierarchy to determine a final decision maker.  

Results:  Currently, 36 states have enacted some form of surrogate statute.  There is little consistency between states regarding who may serve as a surrogate decision maker.  The key challenges with state laws include: 1) a narrow list of persons who qualify as allowable legal surrogates; and 2) a lack of a hierarchy to determine a final decision maker.

 Conclusions:   The results of this survey show that state surrogate decision making laws have many flaws which could affect patient care.  The narrow construction of state laws can leave patients in situations where they either have no qualified surrogate under the law, or where they have multiple surrogates with competing interests who may be unable to reach consensus on the patient’s medical care.  State laws need to be changed so that they accurately reflect the realities of clinical practice and expanded to allow a broader spectrum of potential surrogates.