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Marginally Represented Patients and the Moral Authority of Surrogates

Surrogate decision making for marginally represented patients, both in concept and in practice, warrants reassessment. Many of the open peer commentaries circle around or address a core issue; the ethical juxtaposition of 1) the fact that the conventional logical-analytic rules of surrogate decision making do not well support surrogates who are morally non-intimate and 2) this fact feels dissonant with sociological norms of family relatedness. This distinction is lost on Fins and Huberman (2020) who, in their comments, imbue all familial surrogates, whether morally intimate or not, with some degree of moral authority, albeit without ethical explication. In great contrast, Crutchfield and Scheall (2020) posit that moral intimacy can be distilled down to epistemic intimacy, and based on this, the physician may have greater moral authority than non-intimate relational surrogates. Their arguments in support of epistemic intimacy resonates best within the conventions of a Western bioethic. Other commentators note challenges in relating moral authority to instrumental authority. For example, Sperry et al. (2020), illustrate the unsettled relationship between moral authority and relational authority through a review of various States’ law on surrogate decision making protocols. Moore and Nelson (2020) push concerns about surrogate moral authority further offering that “the range of permissible options open to surrogates should be considered proportional to their degree of moral intimacy with a patient.” Their discussion on what they coin as Moral Intimacy Theory raises a provocative question: Is there a superior ethical basis for morally empowering any relational surrogate, either intimate or non-intimate, to render best interests judgments under the normative construct of decision making, and if so how would that basis be described? Several commentators focused heavily on my contention that a multi-stakeholder process is ethically more justifiable for best interests determinations than a process dependent on a single, nonintimate surrogate. The primary point here is that the moral basis is thin for empowering a non-intimate relational surrogate under a reasoned application of the normative rules of surrogate decision making. Young (2020), Tsu (2020) and others commentators suggest that a multi-stakeholder process is superior, based primarily on logical inference, although an empirical comparison of single stakeholder (either non-intimate relational surrogate or single physician) with multi-stakeholder process has not been done. Crutchfield and Scheall’s analysis of epistemic intimacy lead them to conclude that a multi-stakeholder process may be no better, and possible inferior, to a single physician model due to lack of additional relevant expertise with the former. However, these committees are typically staffed with a variety of health professionals who bring to decision making a relatively richer understanding of concerns of patients beyond the narrow medical ones, in addition to holding role-related fiduciary obligations to the patient. Based on this latter point, Crutchfield and Scheall’s analysis would, in fact, lend support to a multi-stakeholder process. These discussions lead to two logical positions pertaining to marginally represented patients: 1) Maintaining the current normative rules of decision making requires addressing and resolving (at least conceptually) the inconsistencies in the assertion of moral authority of non-intimate relational surrogates. To this end, and within the established normative construct, an affirmative argument has yet to be made that nonintimate relational surrogates have greater moral authority than multi-stakeholder surrogates. 2) Current principled ethical rules of decision making are imperfect and its definitions and requirements should be revised to accommodate important sociological and anthropological considerations, responsive to descriptive ethics. These two positions call out a normative/ descriptive gap in surrogate decision making. The study of decision making for marginally represented patients provides an opportunity to focus on