Designating Health Care Decision-Makers for Patients Without Advance Directives: A Psychological Critique

Georgia Law Review, Vol. 42, p. 979, 2008

37 Pages Posted: 31 Aug 2007 Last revised: 11 Aug 2009

See all articles by Nina A. Kohn

Nina A. Kohn

Syracuse University - College of Law; Yale Law School

Jeremy A. Blumenthal

Syracuse University - College of Law

Date Written: November 2008

Abstract

States' default surrogate statutes allow family or friends to make health care decisions for incapacitated patients who lack advance directives. Although such statutes are commonly justified on the grounds that they honor the wishes of incapacitated persons, our review of empirical research on surrogate decision-making challenges this justification. We find that default surrogate statutes do a reasonable job of capturing majority preferences for health care decision-making processes, but do not ensure that patients receive the treatment they would have selected for themselves if able. Rather, surrogates appointed under default surrogate statutes can be expected to frequently make treatment choices that are inconsistent with patient preferences. Nevertheless, in the absence of better alternatives, default surrogate statutes play an important role in the American health care system. We therefore urge states to consider certain statutory changes that would improve the ability of such statutes to effectuate patient wishes. We also identify several avenues for further empirical research that could help to improve the accuracy of surrogate decision-making.

Keywords: health care, decision-making, end-of-life, advance directives, psychology, statutory design

Suggested Citation

Kohn, Nina A. and Blumenthal, Jeremy A., Designating Health Care Decision-Makers for Patients Without Advance Directives: A Psychological Critique (November 2008). Georgia Law Review, Vol. 42, p. 979, 2008, Available at SSRN: https://ssrn.com/abstract=1008494 or http://dx.doi.org/10.2139/ssrn.1008494

Nina A. Kohn (Contact Author)

Syracuse University - College of Law ( email )

Syracuse, NY 13244-1030
United States
315-443-6565 (Phone)

Yale Law School ( email )

Jeremy A. Blumenthal

Syracuse University - College of Law ( email )

Syracuse, NY 13244-1030
United States
315-443-2083 (Phone)
315-443-5394 (Fax)

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
250
Abstract Views
2,507
Rank
231,562
PlumX Metrics