Online Program

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

Monday, November 2, 2015

Amber Comer, JD, PhD, Department of Health Sciences, Indiana University School of Health and Rehabilitative Sciences, Indianapolis, IN
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.

Learning Areas:

Clinical medicine applied in public health
Conduct evaluation related to programs, research, and other areas of practice
Ethics, professional and legal requirements
Other professions or practice related to public health
Provision of health care to the public
Public health or related laws, regulations, standards, or guidelines

Learning Objectives:
Describe current state surrogate decision making laws Identify flaws in the current state laws Assess the effect of surrogate decision making laws on physicians and patient care Demonstrate the need for a change in the law in order to improve patient care

Keyword(s): Health Law, Health Care Delivery

Presenting author's disclosure statement:

Qualified on the content I am responsible for because: I have studied the area of surrogate decision making under the tutelage of experts in the field for several years. Additionally, I conducted my PhD dissertation on the topic in which I will be presenting.
Any relevant financial relationships? No

I agree to comply with the American Public Health Association Conflict of Interest and Commercial Support Guidelines, and to disclose to the participants any off-label or experimental uses of a commercial product or service discussed in my presentation.