Medical Proxy
Medical proxy, specialization, and the corporatization of healthcare delivery systems during the late twentieth century have all contributed to begetting an uninvited but inevitable duty upon persons with family or friends serving as a healthcare medical proxy. The duty is unpaid, often coerced, and devoid of any meaningful guidelines beyond the obligation to make decisions involving life or death in situations over which the proxy has limited control.
The boundaries and medical proxy’s role have developed somewhat uncomfortably in statutes and case law, as legislators and judges have attempted to fit traditional notions to new circumstances. This article analyzes the legal and functional status of the proxy, and the strengths and limitations of existing public policy as expressed by state advance directives and surrogate decision-making legislation. The opening section of the article gives historical context to our present understanding of agency law about health care proxies.
Understanding where we have been legally is essential to honing our future direction. The second section sets forth distinguishing features of the role of the health medical proxy that diverge from conventional understandings of agency law and that necessitate reevaluation of the definition of agency here. Transitions from conceptual to statutory application, the third section canvasses state surrogate decision-making legislation language to see exactly how these statutes delineate the rights and obligations that characterize the proxy, patient, and health care provider relationship. The last section examines where the current statutory boundaries shortchange the objectives of enabling and directing proxies and provides suggestions for statutory reform.
Historical roots of agency
An agent or a medical proxy comes from a comparatively recent development of English common law and the law of agency. As part of a series of lectures on agency, the first thing Oliver Wendell Holmes felt that he had to discuss was why agency is an appropriate title for law and not merely a theatrical scenario to which prevailing more general principles of law give adequate expression.
l We tend to most commonly associate agency law with contract law, health care proxy form, medical proxy form, free health care proxy form, free online medical power attorney, health proxy paperwork, free blank medical power attorney form, medical proxy meaning but agency law developed from many sources, such as contract, equity specifically, trust theory, tort, restitution, and even admiralty law. Agency law addresses the relations that occur when an individual is employed by another to do certain things on her behalf.
Primitive legal systems need the minimal concept of agency since the parties expect to conduct transactions personally. However, once a third party is trusted to carry out a transaction between two parties, the rights and obligations of the three and possibly more parties require some special rules to govern them. In exploring English law, Frederick Pollock and Frederic Maitland trace the historical origin of agency to the doctrine of chattels and land held to the use of another, the embryonic law of trusts.
Independent origins exist also in contract law
Instances of medical proxy agency date at least to King John, who gave letters of credit authorizing his agents to borrow money and to pledge repayment on his behalf. Canon law is also credited since the rules of most monastic orders prohibited monks from holding property. Individual characteristics of health care agency The character of the role and tasks assigned to health care proxies is different in certain important respects from standard types of agency. This section points out three features of the patient proxy version agency relationship that do require some straining of the theory of agency and our modes of thinking about the agent’s relation to others.
As observed, there are tasks so intimate that they cannot be delegated, either due to public policy as with marriage or the creation of a will or due to expectations of the parties as with the artist. Healthcare decision-making is so intimate, so individualized, and so particularly about life support decisions it is nearer to these nondelegable tasks than to traditionally delegable tasks. And yet public policy has privileged the employment of appointed proxies in making health care decisions, even as empirical data indicate that proxies have a relatively poor record of representing principals’ wishes accurately.
The continuously present principal and various third parties
Medical Proxy Agency law typically consists of transactions in which the principal does not appear. The transaction between the agent and a third party occurs. The third party does not know the presence of the principal. All three entities principal, agent, and third party have contractually formed relationships between themselves. Healthcare settings make the decisions incapacitated principal is always present, although not in a position to be involved in a decision-making process.
In contrast to traditional agency transactions, third-party healthcare providers here interact only with the agent since the provider still has professional and ethical responsibilities running directly to the principal. The responsibilities exist alongside and could even override the contractual relationship between the proxy and the patient. The agent, therefore, does not fully represent the principal. Rather, the agent is a representative of the sense of agency and an intervenor in the existing doctor-patient relationship. Even in its most straightforward form, this three-way relationship has minimal precedence in agency law.
But in real practice, the transaction is more complex, since the patient will have several doctors, specialists, and caregivers, and the proxy might be thought to be only one-though that one who is legally empowered out of several family members who have a moral interest in the patient’s treatment. A further level of third parties adds to the complexity of the process. They are the unseen players Nancy Duller has referred to as the phantoms at the bedside the hospital administrators, risk managers, discharge planners, utilization review personnel, hospital counsel, insurance agents, and others.
Conclusion
These proposals pose medical proxy a challenge to public policymakers and practitioners to be innovative in developing a more interactive legal model for decision-making. The proposals do not assure success in attaining the objectives they aim to advance. However, the analysis provided proposes that they steer the developing body of surrogate decision-making law toward making the decision-making process more robust.
Every movement in the development of the law presents us with another chance to see and balance the outcomes. This provision provides a relatively standard short-hand characterization of the process for achieving informed consent. However, it does not obligate the provider to include in the conversation any of the factors most widely employed to determine the patient’s wishes and best interests.
Those factors are the medical proxy’s duty and balance. The Maryland statute uses the most elaborate definition of these factors to be found in state advance directive codes, but their legal role in Maryland is as a substantive standard of decision-binding on proxies. It is suggested that state statutes, specifically make substituted judgment and best interests considerations part of the mandatory process for procuring informed consent from proxies. The legal impact of making such considerations is that it moves from being a substantive requirement for the proxy’s choice to being a process requirement that applies to providers who would then have an obligation to bring those considerations explicitly into proxy treatment planning.