The Guardianship Question

2015 - 1 February – Team Science
Christine C. Toevs, MD, FCCM; Fred Rincon, MD, MSc, MB. Ethics, FCCM
This ethics case study centers on a patient without decision-making capacity who has no surrogate vested with the power to make treatment choices on his behalf.

Readers are invited to submit cases that have led to ethical questions or conflicts, or those that caused moral distress. The Society of Critical Care Medicine Ethics Committee will solicit analyses authored by qualified ethics consultants with expertise in critical care environments. Through this process, we hope that readers will gain a better appreciation of ethical issues facing critical care clinicians, intensive care unit (ICU) patients, and families of critically ill and injured patients. We believe that readers will also develop a richer understanding of the role of healthcare ethics consultants and become more comfortable in using local resources.


An 87-year-old nursing home resident with end-stage dementia was found on the floor and unresponsive. He was taken to a level 1 trauma center, where he was diagnosed with a significant, but not lethal, traumatic brain injury; he did not follow commands, but did localize to pain. He was first placed on bilevel positive airway pressure (BiPAP) in the hopes of improvement and avoidance of intubation. He was not awake or able to cooperate with his treatment. He was also very uncomfortable on BiPAP.
The patient did not have any family or a designated power of attorney. The lawyers stated that guardianship would occur in the next few days. The intensive care unit (ICU) team hoped to determine the goals of care before proceeding with treatment. The team struggled with a decision regarding intubation, recognizing that the patient’s overall outcome was poor and hoping to avoid a later process of withdrawing the ventilator. When it became clear the guardianship was not imminent, the patient was intubated. He was stable and more comfortable on the ventilator, but clearly could not protect his airway.
The lawyers updated the team with the news the guardianship process would take four to six weeks. This had an impact on the timing of performing a tracheostomy. Although, in theory, this could be postponed until guardianship was established, four to six weeks seemed an excessive wait. The hospital lawyers recommended moving forward with the tracheostomy, but the anesthesiologist was adamantly against it, stating that the procedure was not a medical emergency and could wait until guardianship occurred. The ICU team felt that four to six weeks on the ventilator was not aligned to current medical practice. The team did feel that surgical placement of a feeding tube (which is often performed at the same time as tracheostomy) could wait, and that a nasoenteric tube would be sufficient until a guardian could be appointed and goals of care discussed. Before proceeding with the tracheostomy, the staff obtained documentation from the legal department, held an in-depth discussion with the anesthesia department, and asked multiple ICU attendings to document the need for not delaying the procedure.

Once the tracheostomy was placed, the patient was successfully weaned off the ventilator over several weeks. He still was not awake or able to participate in his care. He was moved to a regular nursing floor while awaiting appointment of a guardian and discussion of feeding tube placement. He remained in the hospital for several months, slowly improving until he was well enough to designate a medical power of attorney. The guardianship process, which had been in motion for months, was then cancelled. The patient demonstrated aspiration on his swallow study, so the palliative medicine staff worked with him and his designated power of attorney to discuss goals of care. A surgical feeding tube was placed, and the patient was transferred back to his nursing home. 


The case study described a patient without decision-making capacity in the setting of moderate to severe brain injury, and no surrogate for decision making.(1,2) The degree of brain injury was sufficient to cause aphasia but not coma or progression to neurological death. The ICU team struggled for several days with the patient’s imminent ventilatory compromise and overall goals of care while waiting for a guardian ad litem.(1) When a patient does not have decision-making capacity, the physician or healthcare provider must seek alternate ways to obtain consent for medical treatments. If the patient has not drafted an advance directive, such as a living will or durable power of attorney (for healthcare), the physician or healthcare provider must seek the substituted judgment of a proxy or surrogate authorized by the jurisdictional law. In the absence of these instruments of consent, the healthcare provider may choose to invoke an “emergency situation” as justification for treatments under a doctrine of “implied consent.”
Was the intubation of the patient appropriate?

In life-threatening and time-critical situations, physicians and healthcare providers have the duty to preserve life. In the very few emergency situations that spare the individual’s decision-making capacity, patients can be involved in the consent process. However, care providers often use an implied consent principle to perform life-saving interventions in those patients who lack decision-making capacity, proxy, or surrogates. The emergency doctrine of implied consent allows providers to deliver certain interventions that, if not performed on a timely basis, could lead to more complications. If the following conditions are met, the physician can use the implied consent doctrine: (a) the treatment in question represents the usual and customary standard of care for the condition being treated; (b) it would clearly be harmful to the patient to delay treatment while awaiting explicit consent; and (c) patients ordinarily would be expected to consent for the treatment in question if they had the capacity to do so.(3)
Can we use the implied consent doctrine for additional procedures, such as the tracheostomy and gastrostomy? How can we obtain consent for these interventions?

After the patient was stabilized in the ICU, he became more comfortable on the ventilator. Though these interventions are standard in the care of patients with brain injury, they did not appear to be emergently required. To this end, the team was not able to invoke the doctrine of implied consent for these procedures. In the absence of advance directives or surrogate decision makers, care providers must seek the representation of the patient’s interests through a court-appointed guardian ad litem.(1) Emergency guardianship may be requested via consultation with the risk management (hospital’s legal team) or ethics committee. In the case presented, this was done with the anticipation of dealing with additional issues such as: foregoing life-sustaining treatment (in the case of this patient surviving but with worst outcome), for additional interventions (gastrostomy), do-not-resuscitate (DNR) orders, final placement, and/or palliative care. One problem with this system is that court-appointed guardians are often unfamiliar with the patient and have little contact with the medical professionals treating them.
So why was the tracheostomy performed before obtaining guardianship ad litem?

In many jurisdictions, an ethics or risk management team can represent the patient’s interests by hearing the recommendations of the treating physicians and then deciding whether the treatment plan is ethically permissible and in the patient’s best interest. This is usually done with a representative of the hospital’s legal department. In the case presented, the ICU team felt that the wait for a guardian ad litem, in order to obtain consent for the tracheostomy, was excessive and not in-line with current medical practice. To this end, the ICU team acted on behalf of the patient using the “best interest” standard, which was introduced to give some standing to the interests of incapacitated patients independent of their family’s or guardian’s views.(4)  In these circumstances, the best interest standard is a tool to target different goals. First, it could be used to express moral, legal, medical, or other social goals or ideas that should guide choices. Second, it can be used in making practical and reasonable decisions about what should be done in a particular situation, given the available and usually less-than-ideal options.(4) One of the shortcomings of the best interest standard is the possibility of the care providers being judged as paternalistic(5) based on their inherent role in preventing evil or harm by promoting good and welfare for others.(6)


The principles of autonomy, professional duty, and the common law require physicians and healthcare providers to obtain consent before administering a treatment, except in emergency circumstances. In the absence of these, the representation of the patient’s interests in the decision-making process must be sought through a court-appointed guardian ad litem, particularly when addressing issues relating to nonurgent interventions and the withholding or withdrawing of life support therapy. Clinical prognostic questions require specific answers, so the healthcare team should strive to achieve the highest level of certainty regarding the diagnosis and prognosis with the patient’s wishes in mind.


1. White DB, Curtis JR, Lo B, Luce JM. Decisions to limit life-sustaining treatment for critically ill patients who lack both decision-making capacity and surrogate decision-makers. Crit Care Med. 2006;34:2053-2059.
2. Norris WM, Nielsen EL, Engelberg RA, Curtis JR. Treatment preferences for resuscitation and critical care among homeless persons. Chest. 2005;127:2180-2187.
3. Bernat JL. Ethical Practice.  In: Ethical Issues in Neurology. 3rd. ed. Philadelphia, PA: Lippincontt Williams & Wilkins; 2008:24-48.
4. Kopelman LM. The best interests standard for incompetent or incapacitated persons of all ages. J Law Med Ethics. 2007;35:187-196.
5. Kottow M. The battering of informed consent. J Med Ethics. 2004;30:565-569.
6. Beauchamp TL, Childress JF. Principles of Biomedical Ethics. New York, NY: Oxford University Press; 2009.