What is the protocol in a VA hospital when a patient lacks decision-making capacity for a goals of care discussion and has no next of kin or power of attorney (POA) available?

Protocol for Unrepresented Patients in VA Hospitals Lacking Decision-Making Capacity

When a patient in a VA hospital lacks decision-making capacity for goals of care discussions and has no next of kin or power of attorney available, an interprofessional, multidisciplinary committee should be convened to make treatment decisions through a structured, fair process that ensures procedural due process. 1

Initial Steps

1. Confirm lack of capacity and unrepresented status:

   • Document that the patient lacks decision-making capacity using structured assessment of:
     • Understanding of medical condition and treatment options
     • Appreciation of the situation and consequences
     • Reasoning about treatment options
     • Ability to communicate a choice 2
   • Conduct and document a diligent search for potential surrogates:
     • Examine personal effects and health records
     • Review social services records
     • Search social media
     • Contact neighbors 1

2. Early identification and committee consultation:

   • Once confirmed that the patient is unrepresented, notify the interprofessional, multidisciplinary committee
   • Inform the patient (if possible) about how decisions will be made 1

Committee Structure and Process

1. Committee composition:

   • Include diverse healthcare professionals (physicians, nurses, social workers, ethicists)
   • Ensure committee members are not directly involved in the patient's care to maintain objectivity 1

2. Information gathering:

   • Meet with the attending clinician and team to understand:
     • Patient's condition, medical history, social history, and prognosis
     • Obtain a second opinion from an independent clinician with expertise in the patient's condition
     • Review any available evidence of patient's values and preferences (advance directives, POLST, medical record notes, previous healthcare decisions) 1

3. Decision-making process:

   • The committee should engage with the clinical team to deliberate and make treatment decisions
   • Institutional policy should establish whether the committee:
     • Serves as a surrogate in a shared decision-making model with the treatment team
     • Acts in an advisory and oversight role providing recommendations 1

4. Decision-making standards:

   • If evidence of patient's preferences exists, follow those preferences
   • If no reliable evidence exists, apply the best interest standard considering:
     • Patient's current physical, sensory, emotional, and cognitive functioning
     • Quality of life, life expectancy, and prognosis with and without treatment
     • Treatment options, risks, benefits, and side effects
     • Pain or suffering resulting from the condition or treatment
     • Proportionality of benefits versus burdens 1

Documentation and Implementation

1. Document the basis for decisions:

   • Explain how decisions align with patient's values if known
   • If values unknown, explain how decisions promote patient's best interest
   • Document the specific abilities the patient lacks
   • Record the committee's deliberation process 1, 2

2. Implement expedited processes for time-sensitive decisions:

   • Establish protocols for urgent but non-emergency decisions
   • Ensure these expedited processes still maintain procedural fairness 1

3. Consider guardianship for ongoing cases:

   • If the patient is expected to remain incapacitated with ongoing healthcare needs
   • Initiate appropriate processes to obtain a legal guardian or conservator based on local laws and resources 1

Pitfalls to Avoid

• Do not make decisions based on the patient's age, race, religion, national origin, disability, gender, or ability to pay unless clinically relevant 1
• Avoid relying solely on diagnosis or physical appearance to determine capacity 2
• Don't label someone incapable merely because they make an unwise decision 2
• Remember that capacity is decision-specific and may fluctuate, especially in patients with dementia 1

Special Considerations for the VA System

• The VA should maintain this fair process even when state laws authorize procedures with less oversight
• In states where attending clinicians are legally recognized decision-makers, they should still consult with the interprofessional committee 1
• The committee should always advocate for appropriate pain relief and palliative care regardless of other treatment decisions 1

This protocol ensures that unrepresented patients receive care decisions that protect their interests through a fair, transparent, and consistent process that respects their dignity and provides appropriate medical care.