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Posted on January 26, 2018 at 1:37 PM

In a recent series of clinical ethics consultations, some
physicians expressed concerns over the possible unilateral nation of using
two-physician consent for medical decisions for patients without capacity. This
concern comes many physicians for a wide range of treatment decisions, a
concern of acting without express consent.

Like many states, New York State Family Health Care Decisions
Act authorizes two physicians to make medical decisions in the event that no
one can be identified to act on behalf of a patient without capacity. It is a
safety mechanism to ensure that even those who do not have anyone in their
lives will have someone to make medical decisions on their behalf. Some states
may use a different mechanism, such as an ethics committee or a surrogate
decision-making committee, but the underlying goal is the same. The
“unbefriend” patients are arguably one of the most vulnerable population of
patients. They lack an advocate, someone to voice their preferences or to
consider their best interests. At least in New York, it then becomes the moral
responsibility of physicians to decide what is in the best interest of the

For those who distrust the medical profession in general,
mechanisms like two-physician consent may seem like a scary option, but then
who else should be making these decisions? It is scary to think that maybe one
day we will be alone with no family and friends but it is an unfortunate
reality. Physicians have years of medical training that can guide a
determination in the patient’s best interest. In addition, physicians have
taken an oath to uphold a patient’s best interest and practice the standard of
care. Physicians are ethically obligated to provide care that benefits and
prevents harm to the patient. People who chose to practice medicine tend to
have an inherent goodness as they are joining a profession that helps people.
These individuals are committed to ensuring a patient’s best interest.

Yes, depending on the gravity of the medical decision and the
potential impact it may have on the patient’s quality of life, making medical
decisions is a burden. What is also important to note about the New York’s
mechanism is it always two physician consent, one physician does not make the
decision in isolation. Though there are concerns that the concurring physician
will not disagree with his/her colleague.

I empathize with the physicians who express concern in making
these decisions but I also think some of these physicians are too focused on
the hypothetical legal consequences. This authority to make such decisions is
codified in a law and is ethically supported by ancient notions of
beneficence.  Maybe we have become too
comfortable with the notion of autonomy and without an expression of autonomy,
we become uncomfortable. We are forgetting the rest of medical ethics. This is
why we have a best interest’s standard in healthcare decision-making and
established standards of care.

The Alden March Bioethics Institute offers a Master of Science in Bioethics, a Doctorate of Professional Studies in Bioethics, and a Graduate Certificate in Clinical Ethics. For more information on AMBI’s online graduate programs, please visit our website.

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