What About Surrogate Decision Making?

At the present time I have serious problems with surrogate authority to make any termination of care or assisted death decisions for those no longer competent. In the absence of knowledge of prior intention, current laws in most states allow the withdrawal or withholding of treatment from such patients at the request of legal surrogates. This occurs even when patients fail to specify their desires in advance about such treatments. This implies a current willingness to “allow” patients to die in ways that are not voluntary.

At the present time I have serious problems with surrogate authority to make any termination of care or assisted death decisions for those no longer competent. In the absence of knowledge of prior intention, current laws in most states allow the withdrawal or withholding of treatment from such patients at the request of legal surrogates. This occurs even when patients fail to specify their desires in advance about such treatments. This implies a current willingness to “allow” patients to die in ways that are not voluntary. This can especially be seen in futility cases that involve infants with severe life-threatening abnormalities, which place hospitals — even Catholic hospitals — and physicians in conflict with surrogates desiring continued care for family members. I am troubled by the entire panorama of this practice, and believe that standards need to be established and that consistency in surrogacy decisions is necessary whether we’re talking about “only allowing”– or actively helping — a patient to die. To place assisted death in a special category in terms of surrogacy ignores the fact that both actions lead to the same result. I do not believe that surrogacy involving assisted death is the only issue or that it can be resolved without also taking a closer look at issues involved with “allowing to die,” and until there also are guidelines for futility of care decisions.

One way out of this dilemma is to err on the side of caution, with assisted death legislation excluding the possibility for surrogate decisions — without prior documented indication of desire — until all end-of-life decisions involving surrogacy can be consistently resolved by a special commission. In all instances I believe that any of these surrogate decisions, regardless of prior documented indication of desire, need to be subject to automatic review by bioethics committees. All of this may seem a step backward given current practices in terms of “allowing to die” but, as I’ve said, perhaps these current practices need to be revisited. In this regard, although the Dutch have been criticized for their leniency about euthanasia some scholars argue that the Dutch are more upset by the practice of “allowing” patients to die and feel that it is we, not they, who are on the slippery slope. In fact, much of the opposition in the Netherlands to euthanasia is opposition to the practice of terminating care. Without lines being clearly drawn in all these matters, I believe indeed we are walking a dangerous road that ignores that the “right-to-die” is, after all, an idea rooted in the concept of individual choice, not in the choice of others.