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J Law Med Ethics. 2015 Winter;43(4):857-77. doi: 10.1111/jlme.12325.

An Ethical and Legal Framework for Physicians as Surrogate Decision-Makers for Their Patients.

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Received his medical degree from Case Western Reserve University School of Medicine in 1978 and his Masters in Philosophy from Duke University in 2008. He is a Professor of Pediatrics and Medicine at Duke University Medical Center and a Scholar in the Trent Center for Bioethics, Humanities and History of Medicine at Duke University School of Medicine in Durham, NC.
Received her Juris Doctor from New England School of Law in 2007 and her Masters of Library Science from University of North Carolina at Chapel Hill in 2011. She was a Reference Librarian and Lecturing Fellow at Duke School of Law, Duke University, Durham, NC and is now at UCLA School of Law in Los Angeles, CA.


In Western industrialized countries, it is well established that legally competent individuals may choose a surrogate healthcare decision-maker to represent their interests should they lose the capacity to do so themselves. There are few limitations on who they may select to fulfill this function. However, many jurisdictions place restrictions on or prohibit the patient's attending physician or other provider involved with an individual's care to serve in this role. Several authors have previously suggested that respect for the autonomy of patients requires that there be few (if any) constraints on whomever they may appoint as a proxy. In this essay we revisit this topic by first providing a survey of current state laws governing this activity. We then analyze the clinical and ethical circumstances in which potential difficulties could arise. We take a more nuanced and circumspect view of prior suggestions that patients should have virtually unfettered liberty to choose their healthcare proxies. We suggest a strategy to balance the freedom of patients' right to choose their surrogates with fiduciary duty of the state as regulator of medical practice. We identify six domains of possible concern with such relationships and suggest straightforward methods of mitigating their potential negative effects that could be plausibly be incorporated into physician practice.

[Indexed for MEDLINE]

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