By Mark Christopher Navin, Jason Adam Wasserman, Devan Stahl, and Tom Tomlinson,

Clinical ethics consultants regularly witness something like the following progression:

1. A patient is determined to lack decision-making capacity (DMC).
2. In the absence of an Advanced Care Planning document that names a surrogate decision maker (e.g. a Durable Power of Attorney for Health Care), the health care team looks to family members, and perhaps to the courts, to find someone to make decisions on behalf of the patient.

The move from 1 to 2 is so common as to be routine. But we think that it can sometimes be ethically wrong.

On our view, which we defend in a recent article in Journal of Medical Ethics, some patients who lack the capacity to make decisions about health care interventions may still have the capacity to designate people to make decisions for them. If patients have what we call the ‘capacity to designate a surrogate’ (CDS), then they have a moral right to decide who should make health care decisions on their behalf. Health care teams should not turn to families or the courts to find surrogates if patients have CDS and wish to exercise it.

Decision-making capacity is usually understood to be decision-specific, such that simpler or less consequential decisions require patients to demonstrate less sophisticated forms of appreciation, understanding, and reasoning. But CDS is not just an instance of the ‘sliding scale’ of decisional capacity. Instead, a sufficiently informed choice about a surrogate does not require the same kinds of capacities necessary for making medical decisions.

Someone with DMC must be able to appreciate their clinical condition (e.g. why they may need treatment), they must understand the upshot of potential treatments for their goals and values (e.g. reducing pain, prolonging life), and they must be able to engage in means-ends reasoning about their treatment options in light of their appreciation and understanding.

But picking a surrogate is not like choosing between different options for medical treatments. Picking a surrogate is primarily about identification, relationship, affect, and trust. We argue therefore that patients can make informed decisions about a surrogate even if they do not understand or appreciate their medical condition or the complicated choices their surrogate will face.

Someone can make a well-informed decision to designate a surrogate as long as they have a consistent preference for a surrogate and understand that this person will make decisions for them. Indeed, most of us designate our surrogates on the basis of these kinds of affinities. We pick people we love and trust.

If we’re right, then health care teams have a moral obligation to determine if their patients who lack DMC might nevertheless retain CDS. If patients who lack DMC have CDS, then they should have as much say about who becomes their surrogate as would patients who are fully capacitated.

Paper: The capacity to designate a surrogate is distinct from decisional capacity: normative and empirical considerations

Authors: Mark Christopher Navin, PhD^ab; Jason Adam Wasserman, PhD^bc; Devan Stahl, PhD^d; Tom Tomlinson, PhD^e

Affiliations: ^aDepartment of Philosophy, Oakland University, Rochester, MI, USA; ^bDepartment of Foundational Medical Studies, Oakland University William Beaumont School of Medicine, Rochester, MI, USA; ^cDepartment of Pediatrics, Oakland University William Beaumont School of Medicine, Rochester, MI, USA; ^dDepartment of Religion, Baylor University, Waco, TX, USA; ^eMichigan State University, East Lansing, MI, USA.

Competing interests: None declared

Social Media Accounts: @MarkCNavin, @JWassermanPhD, @DevanStahl