Legal Briefing: The Unbefriended: Making Healthcare Decisions for Patients without Surrogates (Part 2)

Journal of Clinical Ethics, Vol. 23, No. 2, 177-192, 2012

Posted: 7 Sep 2012 Last revised: 6 Nov 2013

See all articles by Thaddeus Mason Pope

Thaddeus Mason Pope

Mitchell Hamline School of Law; Queensland University of Technology - Australian Health Law Research Center; Alden March Bioethics Institute; Saint Georges University

Tanya Sellers

Independent

Date Written: January 1, 2012

Abstract

Since 2009, Professor Pope has authored a quarterly "Legal Briefing" column for the Journal of Clinical Ethics. Each briefing comprehensively reviews legal developments concerning a particular issue in clinical bioethics.

This issue's "Legal Briefing" column continues coverage of recent legal developments involving medical decision making for unbefriended patients. These patients have neither decision-making capacity nor a reasonably available surrogate to make healthcare decisions on their behalf. This topic has been the subject of recent articles in JCE. It has been the subject of major policy reports. Indeed, caring for the unbefriended has even been described as the "single greatest category of problems" encountered in bioethics consultation. Moreover, the scope of the problem continues to expand, especially with rapid growth in the elderly population and with an increased prevalence of dementia. Unfortunately, most U.S.jurisdictions have failed to adopt effective healthcare decision-making systems or procedures for the unbefriended. "Existing mechanisms to address the issue of decision making for the unbefriended are scant and not uniform." Most providers are "muddling through on an ad hoc basis." Still, over the past several months, a number of state legislatures have finally addressed the issue. These developments and a survey of the current landscape are grouped into the following 14 categories. The first two categories define the problem of medical decision making for the unbefriended.The remaining 12 describe different solutions to the problem. The first six categories were covered in Part 1 of this article; the last eight categories are covered in this issue (Part 2). 1. Who are the unbefriended? 2. Risks and problems of the unbefriended. 3. Prevention: advance care planning, diligent searching, and careful capacity assessment. 4. Decision-making mechanisms and standards. 5. Emergency exception to informed consent. 6. Expanded default surrogate lists: close friends. 7. Private guardians. 8. Volunteer guardians. 9. Public guardians. 10. Temporary and emergency guardians. 11. Attending physicians. 12. Other clinicians, individuals, and entities. 13. Institutional committees. 14. External committees.

Keywords: Unbefriended, surrogate, bioethics consultation, elderly, guardians, medical, death, dying, health

JEL Classification: K32, I1, I18, H51

Suggested Citation

Pope, Thaddeus Mason and Sellers, Tanya, Legal Briefing: The Unbefriended: Making Healthcare Decisions for Patients without Surrogates (Part 2) (January 1, 2012). Journal of Clinical Ethics, Vol. 23, No. 2, 177-192, 2012, Available at SSRN: https://ssrn.com/abstract=2141506

Thaddeus Mason Pope (Contact Author)

Mitchell Hamline School of Law ( email )

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HOME PAGE: http://www.thaddeuspope.com

Queensland University of Technology - Australian Health Law Research Center ( email )

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Brisbane, Queensland 4000
Australia

Alden March Bioethics Institute ( email )

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MC 153
Albany, NY 12208
United States

HOME PAGE: http://www.thaddeuspope.com

Saint Georges University ( email )

West Indies
Grenada

HOME PAGE: http://www.thaddeuspope.com

Tanya Sellers

Independent ( email )

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