Who Should be Responsible for Finding a Surrogate for Incarcerated Patients?

Abstract: Hospitals have an obligation to make reasonable efforts to find a surrogate for each patient if the patient is determined to lack decision-making capacity. However, for concerns about safety and security, hospitals and correctional facilities sometimes enter into agreements that the hospital shall refrain from contacting the patient’s family and that it is instead the responsibility of the correctional facility to find a surrogate for the patient.
Such agreements face two ethical challenges. First, they prevent a hospital from fulfilling their obligation to look for a surrogate for each patient who lacks capacity, regardless of their incarcerated status. Second, correctional facilities’ interest in doing what’s best for the facility may interfere with their ability to find an appropriate surrogate. For example, a facility may limit their efforts in finding a surrogate whom they believe will withdraw life-sustaining treatment on behalf of the patient, because the facility may want to avoid the appearance that the patient was harmed at the facility. This practice may negatively affect the quality of care that the patient receives.
We argue that it should be the responsibility of hospitals to contact potential surrogates of an incarcerated patient. Incarcerated patients should be treated as patients when they are in the hospital and are entitled to the same quality of care that is provided to any other patients. However, hospitals should be sensitive to prisons’ concerns for safety and security by not sharing non-medical information with surrogates and by not contacting individuals implicated in past criminal behavior.

Pierce Randall – Albany Medical College