A patient is generally determined to be incompetent in a hospital when the patient is no longer able to make rational decisions. Taking care of incompetent patients can be an extremely stressful, time consuming task for a family. The decision becomes even more difficult when the question of stopping treatment arises for a terminally ill patient. Medically termed, a Proxy decision maker is the person who takes care of an incompetent patient. Proxy decision makers tend to be close in relationship to the patient and are responsible for making decisions according to their wishes.
John Hardwig considers such medical cases in his article, “The Problem of Proxies with Interests of Their Own: Toward a Better Theory of Proxy Decisions.” In this article, he discusses the current theory upon which the Proxy decision makers are given their legal duties, while making an argument for a new system to be implemented. Hardwig suggests that the problem’s roots lie in the interpretation of patient autonomy, the protection of patient’s fundamental rights and interests through Proxy decisions. The task assigned to the proxy, in the current theory, is that of substitutive judgment standard where the proxy decision maker must advocate that which the patient would have advocated. This task, Hardwig states, causes the medical decision to be excessively and solely patient centered. Failing to take into account the implications of patient treatment, or lack thereof, on family members makes the practice of patient centered decision making morally inept
Hardwig begins his argument with the presentation of a case study in which a seventy eight year old married woman with progressive Alzheimer’s disease was admitted to a hospital. This woman was determined incompetent and eventually diagnosed as terminally ill. In this case, the proxy decision maker, her husband, insists on reducing treatments for his wife. Later it is discovered that the husband had proposed marriage to the couple’s housekeeper. Hardwig sympathizes with the fear of proxy decision makers making decisions not in the best interest of the patient, but of themselves. More importantly though, he presents multiple perspectives through which the decisions of the proxy maybe viewed and better understood. He illustrates why a problem exists with the proxy decision maker having to solely base their decision on the patient without considering the impact of the decision upon themselves or others close to the patient.
The author does not excuse the impure act of the husband, but states the unfairness in how decisions are made. Constantly, society bases decisions on how to save money for government or health maintenance organizations, people are regularly deinstitutionalized, and nursing home beds are made limited for Alzheimer’s patients. Decisions are made based on government money, yet we find it morally objectionable that the husband would want to stop treatment because of financial difficulty. This entire immense financial burden is placed on a near eighty year old husband, who if he continues this medical treatment for his wife, may become poverty stricken for the remainder of the few years of his life. In this way, it becomes unfair to place the husband as the proxy decision maker and expect him to make decisions solely based on his wife’s interests and not consider the impact they may have on his own life. This and other similar treatments are the reasons why we must acknowledge that “decisions inevitably and dramatically affect” the lives of those other than just the patient (22).
In light of such a view, the author suggests that substituted judgment must be rejected when the treatments also affect the lives of the patient’s family. Substituted judgment must only be considered a standard in the situations when the treatment only affects the patient or when the patient’s judgment also would have reflected the interests of those who will be affected. The idea of substituted judgment is particularly broken, when the author presents a situation with two extreme cases of the incompetent patient. In one, she is a domineering, self-centered individual who constantly ignores her husband’s interests, if it means she may gain what she wants. This case would suggest that the Proxy decision maker, if he obeyed substituted judgment, would have to disregard the fact that she always ignores his interests. He would have to act in the self-centered, domineering way of his wife and continue treatment, disregarding his financial status and longterm effects on his life. The second case presents the woman as a generous, considerate, unselfish woman who was always sensitive to the interests of her husband, ready to put his needs ahead of her own. The substituted judgment task here would require the husband to sacrifice his wife’s interests and demand minimal care; continual treatment is something he would want for her, but not his wife for him. Certainly, Hardwig suggests, there is something wrong with this scenario. He also states we would all agree that the virtuous woman would at least deserve better care (24).
After considering the arguments, the author states the need to rebuild the theory of proxy decision making. Throughout Hardwig’s reasoning in his arguments, it is clearly seen that he assumes what is morally right is what is in the best interest of all, not just the one. It could not be clearer than in the statement where he postulates exactly what the rebuilding means:
Proxy deciders have been given the wrong instructions. Instead of telling them that they must attempt to put themselves into the shoes of the incompetent patient and decide as she would have decided, we must tell them that the incompetent patient’s wishes are the best way to define her interests, but what she would have wanted for herself must be balanced against considerations of fairness to all members of the family. (24)
In his reasoning, Hardwig presents the case of the family members and the patient as individuals, treating them as ends in themselves and not merely as the means. His concern for the impact of treatments upon each member of the family especially illustrates this viewpoint. If those affects on the family were to be ignored, then society would solely be treating the family as a means of financially supporting the treatment the patient receives. The family would then be seen as not having any moral relevance in the patient’s scenario, which in light of the author’s perspective is seen as unfair, and possibly even immoral. His moral assumption of people as an ends in themselves is also demonstrated in his argument presenting the two extreme cases of the incompetent patient. He determines in that argument that the virtuous patient must deserve better care than the demonic patient, explicitly revealing his assumption, to the point that he suggests substituted judgment must be rejected in almost all cases except two. Hardwig concludes with the idea that a new ethical view must be developed that allows for proxy decision makers to consider the impact treatments would have on their lives, and essentially acknowledging moral relevance of the interests of the family, not just the patient.
One of the criticisms of Hardwig’s theory comes from Baruch A. Brody, in his article “Hardwig on Proxy Decision Making.” Brody agrees with Hardwig’s first conclusion in need for an ethics that considers the interests of all those who would be affected by the treatment of the patient, but feels Hardwig does not take this conclusion far enough. Whereas Hardwig’s theory regards the family’s interests with family being a general term for friends, companions, lovers, and so forth, Brody wishes to include everyone that is importantly affected by a treatment, which includes family members, caregivers, and society. Brody also differs with Hardwig in that he finds caregivers to be just as important. In certain cases they might have greater obligation to other patients than the particular patient, and so their interests are also important. Hardwig though, does not consider the interests of the physicians important. Brody in this case can be seen supporting a moral viewpoint more Utilitarian than Kantian, because he finds the interests of everyone affected as important, whereas Hardwig is more concerned directly with the patients and their families.
Brody’s major criticism is his disagreement with Hardwig’s rejection of the substituted judgment standard and the role of the proxy decision maker. Brody feels that Hardwig based his conclusion on two premises, primarily being that the role of the proxy decision maker is to make the right decisions. Brody challenges this premise by stating that the role of the proxy decision maker can be better conceptualized with the substituted judgment standard still maintained. He argues, the role of the proxy decision maker is to advocate that which the patient would have advocated, but it is up for others that are affected to decide to follow the advocacy or not. Therefore, the proxy decision maker can still follow his task of substituted judgment, while considering the interests of everyone affected. In this way, they can achieve the primary goal of Hardwig without rejecting substituted judgment. The Utilitarian moral assumptions are found to be influential in Brody’s conclusion, because he is able to achieve Hardwig’s goal, considering everyone affected, not just the family, and without having rejected substituted judgment as a duty for the proxy decision maker,
While Brody and Hardwig may differ on their moral assumptions, they both agree on the need for a new ethical view which considers the interests of a broader range of those affected by treatment of the patient. Including the ramifications of various treatment options on the patient as well as loved ones and others, both Brody and Hardwig are on the same page. Though their approaches may be different, the argument and criticism both lead to constructive growth on the topic of proxy decision makers and the moral, ethical expectations society and the medical field place on their decisions.
Hardwig, John. “The Problem of Proxies with Interests of Their Own: Toward a Better Theory of Proxy Decisions.” The Journal of Clinical Ethics (1993): 20-27.