Legal and Ethical Considerations for Treating Patients Without Families

When patients who are unable to communicate their preferences or concerns arrive at a hospital without anyone to advocate for them, special legal and ethical considerations may emerge. To mitigate risk, it’s important to have policies and procedures in place to guide the healthcare team when treating these patients.
 

Unrepresented Patients

According to the Unrepresented Patients Project for Illinois (UPPI), a patient is unrepresented if they meet the following conditions. The patient:

• Is facing an important medical decision.
• Is incapable of decision-making.
• Has no advance directive.
• Does not have a legally authorized representative or substitute decision-maker.

The AMA Journal of Ethics reports that certain populations are more likely to be unrepresented, including the elderly, homeless, incarcerated, and mentally disabled. In many cases, bias and a lack of representation may intersect, leading to an even more complicated scenario. It is important for healthcare providers to be aware of potential biases when treating unrepresented patients and assess whether their bias is impacting clinical decision-making. 
 

How Liability Can Emerge: A Risk Scenario

Following is an example of how patient harm may occur and subsequently lead to liability for a healthcare provider.

A 60-year-old Hispanic male had been experiencing abdominal pain for over a week. He was hesitant to seek medical attention due to his lack of insurance and limited English proficiency. When the pain became unbearable, he went to the nearest public hospital. Upon arrival, he had difficulty communicating his symptoms to the receptionist, and there was no interpreter available. After registering and being told he would have to wait several hours to see a doctor, he took a seat in the crowded waiting area. He became increasingly distressed and eventually lost consciousness. At that point, hospital staff called for an interpreter. The interpreter reviewed the patient’s forms and discovered that he had a history of diabetes and hypertension. The patient was then rushed to the emergency room where it was determined that he was suffering from a severe abdominal aortic aneurysm which had ruptured, causing internal bleeding. Due to the delay in treatment, his chances of survival were compromised, and the patient did not survive.

This scenario raises serious questions, including:

• Did the hospital violate the patient’s rights? The patient had a right to receive timely and appropriate medical care.
• How did this impact the ED staff? The nurses involved in the man’s care likely experienced moral distress.
• Was bias a factor? How did the man’s lack of insurance and English proficiency impact how the hospital staff viewed him?

Understanding the Risks

A study of ICU patients found that 16% were unrepresented. In 37% of these cases, physicians considered withholding or withdrawing treatment. 

Lack of representation is a common issue in healthcare settings. It’s therefore important to understand the associated risks, which may include the following: 

• Healthcare providers may struggle to make decisions that reflect the patient’s wishes.
• Healthcare providers may need to act on implied consent when explicit consent is not possible.  
• Delaying important medical decisions may lead to patient harm.
• Unrepresented patients are often at a higher risk of neglect, abuse, and exploitation. 
• Healthcare providers may face ethical dilemmas, especially in end-of-life scenarios.
• Unrepresented patients may have no one to advocate for their needs and preferences.
• Communication between providers and unrepresented patients may be difficult, leading to misunderstandings.
• Fragmentation of healthcare services may occur when unrepresented patients lack a designated point of contact to coordinate their care.
• The lack of a known medical history may increase the risk of medical errors, adverse events, and complications.
• Healthcare providers may face legal and liability issues if their decisions are later questioned.
• Unrepresented patients may require additional resources, which may impact overall operations.
• Unrepresented patients may experience isolation, anxiety, or distress.

Protecting Patients and Controlling Risk

Policies can offer guidance to healthcare providers dealing with unrepresented patients. It is recommended that you consult with an attorney to ensure policies comply with state statutes and regulations. Following are some key points to consider when creating policies:

• Ethics. The AMA Code of Medical Ethics 2.1.2 provides guidance on making decisions for adult patients who lack capacity. In many scenarios involving unrepresented patients, it may be necessary to gain the advice of an ethics committee.
• Surrogate Selection. An appropriate surrogate can advocate for the patient. See the next section for more details. 
• Capacity Assessment. Healthcare providers can use a validated clinical tool, such as the MacCAT-T. They should perform reassessments frequently, as capacity may change. 

 

Identifying a Surrogate

In some cases, a court will appoint a conservator to make decisions. Otherwise, a healthcare provider may need to identify a surrogate to advocate for the patient. Although this may be difficult, healthcare providers may be able to locate someone suitable by reviewing medical records or even hiring an investigator. 

State laws vary. A review found that 14 of the 51 U.S. jurisdictions specify the process that healthcare providers should follow to identify decision-makers for unrepresented patients without beginning legal guardianship proceedings. 

Absent state laws, a sample policy provides guidance on how to identify surrogates to make decisions on the patient’s behalf. (The sample policy is written for a California audience – California is not one of the 14 jurisdictions that specifies a process.) Ideally, an advance directive would name the surrogate or an oral directive would name a temporary surrogate. If this is not the case, the sample policy shows how to select a surrogate after considering a variety of factors, including familiarity with the patient’s values and ability to understand the medical condition and treatment options.

To avoid potential conflict, the surrogate should not be the treating healthcare provider or an owner, operator, or administrator of the facility. Unless the surrogate is also related to the patient, the surrogate should not be an employee of the treating provider or facility.
 

Maintaining Documentation 

Documentation is critical and should include the following:

• Clinical data. Including capacity assessments, treatment decisions, response to treatment, ethics committee consults, thought processes, and rationale.  
• Surrogate. Including efforts (successful or unsuccessful) to contact a surrogate, selection criteria for a surrogate, and communication with the surrogate. 
• Communication. Including conversations with the patient and written correspondence. 
• Resources. Outside resources used should be documented. These may include investigators used to locate a surrogate.

Unrepresented patients pose unique challenges to healthcare facilities. Thoughtful policies can reduce both patient harm and facility liability. 

This article is based, in part, on a Med-IQ® presentation “Patients Without Families: Ethical and Legal Considerations,” presented by Josh Hyatt, DHS, MBE, MHL, DFASHRM, CPHRM, CPPS, HEC-C, Director, Risk Education and Strategy.