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The Medical Surrogate as Fiduciary Agent

Published online by Cambridge University Press:  01 January 2021

Dana Howard
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Abstract

Within bioethics, two prevailing approaches structure how we think about the role of medical surrogates and the decisions that they must make on behalf of incompetent patients. One approach views the surrogate primarily as the patient's agent, obediently enacting the patient's predetermined will. The second approach views the surrogate as the patient's custodian, judging for herself how to best safeguard the patient's interests. This paper argues that both of these approaches idealize away some of the ethically relevant features of advance care planning that make patient preferences so inscrutable and surrogate decision-making so burdensome. It proposes a new approach to surrogate decision-making, the Fiduciary Agency Approach. On this novel approach, the surrogate has authority to not only act on the patient's behalf as the patient's agent but also to decide on the patient's behalf as the patient's fiduciary. One upshot of this new approach is that surrogates must sometimes go against the expressed dictates of the patients' advance directives not necessarily because doing so would be in the patient's best interest but rather because doing so would best represent the patients' will.

Type
Independent Articles
Information
Journal of Law, Medicine & Ethics , Volume 45 , Issue 3: Symposium - Controversies in Clinical Research Ethics , Fall 2017 , pp. 402 - 420
Copyright
Copyright © American Society of Law, Medicine and Ethics 2017

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References

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Contrast this understanding with a number of scholars who deem asymmetries in power and expertise to be the distinctive feature of fiduciary relationships. For example Alan Worth-heimer claims, “We are apt to adopt the fiduciary model when there are significant structural inequalities between the principal and the agent with respect to competence, expertise, or power.” See Worthheimer, supra note 48, at 182; See also, Ponet, D. and Leib, F., “Fiduciary Law's Lessons for Deliberative Democracy,” Boston University Law Review 91 (2011): 249-261, at 1255-1256. I should note that the concept of the fiduciary has come up in other areas of clinical ethics. For example, for critical analyses for whether to approach the physician-patient relationship as a fiduciary relation, see Rodwin, supra note 52 as well as Joffe, S. and Truog, R., “Consent to Medical Care: The Importance of Fiduciary Context,” in Miller, F. and Wertheimer, A. eds., The Ethics of Consent: Theory and Practice (Oxford: Oxford University Press, 2010): 347-337. However, little has been written so far about the possibility of approaching the medical surrogate as a fiduciary. I believe this is because fiduciary relationships are often understood in terms of underlying asymmetries in power and expertise as well as purely economic relationships and so the concept of fiduciary seems out of place when thinking about relations between loved ones.Google Scholar
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This is especially the case in the United States since the passing of the Patient Self-Determination Act that requires federally funded medical facilities to inform patients of their right to make decisions concerning their long-term medical care. We should assume, then, that a large portion of the patient population is aware at least of the right to draft such a document.Google Scholar
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