Putting our assumptions about surrogate decision-making on trial: The incarcerated surrogate
Thursday, October 12, 2023
9:45 AM – 11:00 AM ET
Location: Essex C (Fourth Floor)
When we care for patients who lack decision-making capacity, we have a professional, ethical, and legal obligation to ensure that the appropriate individual is making medical decisions on the patient’s behalf, even if that person is incarcerated. From our cumulative practice of internal medicine, correctional medicine, clinical ethics consultation, and palliative care, we have frequently witnessed the incorrect assumption that an incarcerated person cannot serve as a surrogate.
In the United States, multiple factors have increased the likelihood over time that the legal surrogate for an incapacitated patient may be incarcerated – our increasingly elderly and sick population, the prevalence of incapacitated inpatients, the low rate of completion of advance directives, and the high likelihood of having an incarcerated family member. In neglecting incarcerated persons as potential surrogates, we may be violating not only the incarcerated person’s rights but also the right of the incapacitated patient to have an appropriate surrogate decision-maker.
We provide ethical and legal arguments for why incarcerated persons should be considered as potential surrogates, such as preventing further exacerbation of inequalities perpetuated by mass incarceration. We describe common challenges we have encountered when utilizing an incarcerated surrogate, particularly difficulties with timely communication. Finally, we suggest practical solutions for making the use of incarcerated surrogates feasible in the clinical setting; we discuss legal criteria for considering compassionate release of incarcerated persons with a sick family member and how to best utilize hospital-, jail-, and prison-based resources such as chaplains and social workers in this process.
Marc Robinson – Department of Medicine – Baylor College of Medicine; Astrid Grouls – Department of Medicine – Baylor College of Medicine