Does this story sound familiar?
An elderly patient with diabetes from an area nursing home has developed gangrene and is at risk of sepsis. The medical team recommends amputation of the left lower leg, but needs someone to provide consent for surgery. The patient does not have the cognitive ability to make decisions and does not have an advance directive. The physicians will not perform surgery without a signed consent. There is a problem locating relatives, and the only known relative, a nephew, has not been involved in the patient’s care. The surgery is not considered a true emergency, but neither is there time to appoint a guardian for the resident.
Decision making for patients without family is a frequent concern in hospitals, nursing homes and other settings. One study in the journal Critical Care Medicine in 2006 concludes that 16% of patients without decision-making capacity in the medical ICU of a metropolitan hospital also lacked a surrogate decision maker. A New York state report concluded that approximately one third of nursing home residents are without decision makers when medical decisions need to be made.
In 2010 HCECG and the Emory University Center for Ethics led a working group that drafted legislation creating a process to provide consent for surgical or medical treatment for a patient who 1) does not have decision making capacity and 2) who lacks a family member or other surrogate authorized under Georgia law. The resulting legislation passed and was signed into law in the summer of 2010. Practice highlights of the law are included at the end of this article.
So how is implementation of the law progressing at the end of 2011?
Hospitals informally report that it has been very helpful to have the expanded list of individuals who are authorized to consent to treatment. Both extended family members and adult friends have provided consent for treatment for patients without decision-making capacity.
Implementation of the temporary medical consent guardianship process has not been as straightforward. We have reports of some cases in which the process was not initiated due to concerns regarding costs for filing or difficulty in identifying individuals who are willing to serve as guardians.
We would like to hear from you about whether you have utilized the legislative changes to assist with consent for patient treatment. In the coming days look for an HCECG email with a link to a brief survey on the topic. Emails addressing this issue are also welcome. Let us know about whether the legal changes have been helpful, or about other concerns in caring for patients who are unable to make decisions about their own treatment. (
kkinlaw@emory.edu)
Legislation Highlights:
·
The list of individuals who are authorized to give consent under Georgia law was extended (beyond durable power of attorney for health care, spouse, guardian, adult child, parent, adult sibling, and grandparent) to include:
o
Any adult grandchild
o
Any adult niece, nephew, aunt, or uncle of the patient who is related to the patient in the first degree
·
In the absence of any of the above, an adult friend of the patient may be authorized to consent. (The friend is further defined as one who has exhibited special care and concern, who is generally familiar with the patient’s health care views, and who is willing to be involved in health care decisions and to act in the patient’s best interests.)
·
In the absence of any of the above decision makers, the health care facility or an interested person may initiate proceedings for an expedited judicial intervention to appoint a temporary medical consent guardian. This petition would be filed in the Probate Court in either the county in which the patient lives or the county in which the patient is in a health care facility.
The full text of the bill can be found on-line at:
http://www.legis.state.ga.us/legis/2009_10/pdf/sb367.pdf
Kathy Kinlaw is Associate Director of the Emory University Center for Ethics and Director of the Center's Program in Health Sciences and Ethics. She serves as Bioethics Associate in Pediatrics, Emory School of Medicine; and Executive Director of the Health Care Ethics Consortium of Georgia.
