Unrepresented patients are individuals who lack decision makingcapacity and have no family or friends to make medical decisions for them. This population is growing in number in the United States, particularly within emergency and intensive care settings. While some bioethical discussion has taken place in response to the question of who ought to make decisions for these patients, the issue of how surrogate medical decisions ought to be made for this population remains unexplored. In this paper, we argue that standard applications of surrogate decision making principles in health care are not well suited to many unrepresented patients with long-term mental health diagnosis. We argue that when applied to this population, the substituted judgment standard, designed to preserve patient preferences and values, may lead to the exclusion of their preferences. We argue further that the application of the best interest standard runs the risk of leading to harmful cases of overtreatment or undertreatment. We offer an alternative interpretation of the best interest principle that is better able to promote the well-being of unrepresented patients, especially for those who lack capacity because of mental disorders. This alternative is based on the practices and principles of harm reduction and includes three components: emphasis on considering the expressed preferences of unrepresented patients, a focus on reducing harm as well as the delivery of clinical benefits, and a recognition of the importance of promoting trust.
These patients are also known as unbefriended, adult orphans, friendless patients, patients alone, and solo citizens.2
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This proposal aligns with the Mental Capacity Act of England and Wales, which requires that people who may lack capacity be allowed to express their preferences, and that when care is provided to someone who lacks capacity, it must be “less restrictive of the person’s rights and freedom of action.”55 Thank you to an anonymous reviewer for alerting us to this.
51.
Although the Belmont Report has been criticized for focusing too much on beneficence to the neglect of non-maleficence.49
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We acknowledge that a harm reduction approach to decision making for unrepresented patient will not prevent all cases of over or undertreatment, but we hope that it will support clinical teams in finding a balance between the two.
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