How to treat unrepresented patients: Legal expert lists 5 things you should know

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Clinicians increasingly treat patients who are both incapacitated and have no available representative, yet few laws or policy statements offer guidance on the issue, wrote Thaddeus Mason Pope, JD, PhD, an expert on medical law and clinical ethics, in AMA Journal of Ethics.

Dr. Pope lists five things clinicians should keep in mind when treating unrepresented patients:

1. Recognize the vulnerability of unrepresented patients.

Clinicians should carefully consider treatment options and remember that unrepresented patients are at a higher risk for overtreatment, undertreatment and delayed treatment.

2. Confirm the patient is incapacitated.

Patients do not need a representative if they are still capable of making decisions and understand the benefits, risks and alternatives involved in their own healthcare. Click here to read three tips for evaluating patients' capacity to make health decisions.

3. Confirm the patient is unrepresented.

Patients who may appear to be unrepresented sometimes do have a surrogate to advocate on their behalf. Some patients may not even need a surrogate if they have advance directives or physician orders for life-sustaining treatment.

4. State laws vary widely for unrepresented patients.

Only a dozen states have formal decision-making processes for unrepresented patients, and these processes differ by state. Consult your own state's processes, if they exist, and consult a multidisciplinary committee even if state law does not require you to do so.

5. Only turn to guardianship and conservatorship as a last resort.

Guardianship (or conservatorship in some states) is the only official path through which unrepresented patients can have decisions made on their behalf. But guardianship is expensive, slow and often ineffective. It should only be used when other options have been exhausted.

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