Surrogate Decision Making When Patients Cannot Decide within the Veterans Health Administration System

Dear Editor:

In a recent publication by DeMartino et al. in the New England Journal of Medicine, ¹ the authors presented a valuable, well-referenced article describing a practical approach to surrogate decision making when patients lack decision-making capacity. We believe this piece is of key interest to hospice and palliative medicine providers, and will be a useful reference for all moving forward. However, although the legal surrogacy statues of all 50 states and the District of Columbia are discussed in this work, healthcare processes specific to the Veterans Health Administration (VHA) Hospitals and Clinics were not included. During Fiscal Year 2014, approximately 9.1 million veterans were enrolled in the Veterans Administration (VA) system, and 6.6 million patients were cared for in this system—5.9 million of whom were veterans.^2,3 These patients accounted for 92.4 million outpatient visits and 707,400 inpatient admissions. ³ Thus, we believe it is imperative that clinicians and patients understand the differences regarding alternate decision making within this system.

Regardless of the physical geographic location of the encounter, care provided within VA facilities is under the jurisdiction of the VHA as outlined in 38 CFR Chapter I. ⁴ Therefore, the directives provided in the VHA Handbook supersede state laws within individual VA facilities. VHA Handbook 1004.01 (derived from 38 CFR § 17.32) ⁴ assigns priority for surrogate decision makers for patients who lack decision-making capacity as:

1. healthcare agent;

2. legal guardian or special guardian;

3. next of kin (defined as a close relative of the patient 18 years of age or older, in the following order of priority—spouse, child, parent, sibling, grandparent, or grandchild); or

4. close friend. ⁴

If no surrogate decision maker can be identified, assistance may be sought from Regional Counsel or through an institutional multidisciplinary committee, often involving Ethics Committees and the Chief of Service. ⁵ For the most vulnerable patients who are unbefriended and lack any clear alternate decision makers, these patients require a multidisciplinary committee review, which is followed by review of the Chief of Staff and Medical Center Director. This requirement has been outlined in one of VHA's latest directives—the Life-Sustaining Treatment Discussions Initiatives—as outlined in VHA Handbook 1004.03. ⁶ Substantial efforts are ongoing across VA sites to educate staff, improve the quality of discussions about goals of care and documentation of these discussions, and implement this directive across VHA.

Given that many veterans receive healthcare at university and community hospitals, as well as at VHA hospitals and clinics throughout the United States, we believe it is important for all clinicians (especially hospice and palliative care providers) to be aware of these unique care requirements.