Legal Briefing: Adult Orphans and the Unbefriended: Making Medical Decisions for Unrepresented Patients Without Surrogates

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. The Journal of Clinical Ethics owns the exclusive copyright to distribute the full-text content.

This issue’s “Legal Briefing” column covers recent legal developments involving medical decision making for incapacitated patients who have no available legally authorized surrogate decision maker. These individuals are frequently referred to either as “adult orphans” or as “unbefriended,” “isolated,” or “unrepresented” patients. The challenges involved in obtaining consent for medical treatment on behalf of these individuals have 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.

In 2012, JCE published a comprehensive review of the available mechanisms by which to make medical decisions for the unbefriended. The purpose of this “Legal Briefing” is to update the 2012 study. Accordingly, this “Legal Briefing” collects and describes significant legal developments from only the past three years. My basic assessment has not changed. “Existing mechanisms to address the issue of decision making for the unbefriended are scant and not uniform.” Most facilities are “muddling through on an ad hoc basis.” But the situation is not wholly negative. There have been a number of promising new initiatives. I group these developments into the following seven categories:

1. Increased Attention and Discussion

2. Prevention through Better Advance Care Planning

3. Prevention through Expanded Default Surrogate Lists

4. Statutorily Authorized Intramural Mechanisms

5. California Litigation Challenging the Team Approach

6. Public Guardianship

7. Improving Existing Guardianship Processes

Keywords: surrogate, capacity, unbefriended, unrepresented, bioethics, end-of-life, guardian, conservator

JEL Classification: K32, I18