Nina A. Kohn has made available for download her article, “Matched Preferences and Values: A New Approach to Selecting Legal Surrogates,” published in the San Diego Law Review. The Abstract is as follows:
Every day, hospitals are filled with incapacitated patients whose healthcare decisions are made by other people. The law recognizes such decisions as the patients’ own and, accordingly, the primary purpose of surrogate decisionmakers is to make the decisions that patients would make if able. Unfortunately, surrogate decisionmakers frequently make choices for patients that are inconsistent with patient wishes. Indeed, social psychology literature on surrogate decisionmaking finds a stronger correlation between surrogates’ decisions for patients and what surrogates would want for themselves than between surrogates’ decisions and what patients actually would want. Although others have treated surrogates’ tendency to project their own preferences and values on patients as a barrier to appropriate decisionmaking, this Article shows how savvy patients, advocates, and policymakers can capitalize on this tendency to improve healthcare decisionmaking. Specifically, it proposes that surrogate decisionmakers for health care be selected based, at least in part, on the extent to which they share patients’ treatment preferences. Where it is not possible to compare treatment preferences, or where an individual cares less about particular treatment decisions than about consistency with a set of values, surrogates should be selected based on shared values. Incorporating this approach into advance planning processes and the statutory law governing the selection of guardians and default surrogate decisionmakers could both increase the likelihood that decisions made are those patients would want made, and facilitate more flexible, context-appropriate treatment decisions.
Download full article at: Matched Preferences and Values: A New Approach to Selecting Legal Surrogates by Nina A. Kohn :: SSRN
Posted by Lewis J. Saret, Co-General Editor, Wealth Strategies Journal.