Ethics and Clinical Practice Guided by the Family Health Care ...

IMPLEMENTING THE FAMILY HEALTH CARE DECISIONS ACT
Since this standard is employed when there is no
knowledge of a particular patient’s prior wishes or
inferred wishes, it is primarily an impersonal standard.
In the absence of such particularized knowledge, the best
interest standard considers what would be most likely
to benefit or promote the well being of a hypothetical
patient in the same circumstances as those of this patient.
Any additional information specific to the particular
patient being treated might also contribute to an assessment
of what is in his or her best interest. Health care
teams must apply due diligence in identifying additional
informants and information.
In assessing best interest, both the outcome and
the probability of achieving this outcome for different
treatment options should be considered. 9 In the clinical
setting, the best interest standard would consider mitigating
pain and suffering, prolonging life, restoring and
enhancing comfort, and maximizing the potential for
independent functioning. In all cases where this standard
is invoked, best interest should be determined as far as
possible from the perspective of the patient, not that of
the decision maker.
2.4 Individual patients, when choosing among
options for care, apply their own preferences,
shaped by factors including their individual life’s
history, experience previously with medical care,
religious beliefs, and moral values. Surrogates
should strive to incorporate these factors.
Surrogates may have available to them the stated
wishes of the patient before incapacity intervened. In
many cases they have spent time with the patient and
have insights into patterns of preference and habits of
person. They may have some notion of whether, even
without having discussed the specifics of medical care,
the patient would be more inclined to accept a greater
burden for less benefit or would choose comfort. People
are not distinct beings for purposes of making medical
care decisions. The other issues in their lives and the sorts
of decisions they have displayed in widely different settings
may provide some window into relevant values.
But if it is not the case that there are lessons to be
learned from this person’s history, or if questions remain
about a preferred treatment, the FHCDA provides a wise
litany of considerations for determining a patient’s best
interest, including:
consideration of the dignity and uniqueness
of every person; the possibility and
extent of preserving the patient’s life; the
preservation, improvement or restoration
of the patient’s health or functioning; the
relief of the patient’s suffering; and any
medical condition and such other concerns
and values as a reasonable person
in the patient’s circumstances would
wish to consider.
It is especially important in considering the notion of
“best interest” that the medical team be both honest and
clear, as it is supportive and comforting. It is an awesome
responsibility for the surrogate either to approve of
interventions that are risky and painful or permit those
that will clear the barriers to death. In either event the
team needs to use its skill and support to justify the medical
interventions and help the surrogate to negotiate the
emotional trauma of the decision.
2.5 Life-sustaining treatment presents an
extraordinary circumstance in the FHCDA, as it
should.
Failing to attempt to delay death should be undertaken
only after a careful and conscious process that
focuses the care team and the surrogate, together, on this
ultimate choice. Contemporary medical practice, having
survived the arrogance of success that preceded AIDS and
the graying of America, has generally accepted that death
is not necessarily the worst option among the choices
available. Medical care often imposes pain and suffering
in exchange for a promised benefit, amelioration of prior
pain or chance of enhanced quality of life. But these benefits
may not be available to balance the burdens of treatment.
At such times, an ethical analysis must question the
merits of and the basis for any intervention.
2.6 The FHCDA recognizes that under certain circumstances
it may be in the best interest of the
patient for surrogates to accept, and not contest,
the process of dying. Factors to be considered
include whether the patient would benefit from
treatment and whether he/she is suffering. The
care plan should always ensure compassion and
caring, and may need to incorporate aggressive
comfort measures even when awaiting death.
This standard articulates a shared perspective that
is widely presented in bioethics scholarship, reflected in
case law in other jurisdictions, and advocated by palliative
care experts. It permits the logic and skills of bioethics
and palliative care to be integrated into the care of
patients with life threatening illnesses so that the most
humane and supportive care is provided as a matter of
course. The practice of medicine should not be governed
by the “technological imperative” [because it exists it
must be employed]. In order for an intervention to be in
the best interest of the patient, it must advance the health
and well being, and not simply extend individual organ
function in light of a failing organism.
NYSBA Health Law Journal | Spring 2011 | Vol. 16 | No. 1 79