Tuesday, April 14, 2009

Once a Guardian, Always a Guardian

Right? ??

Rosemary Flanigan
April 14, 2009

I told you that last week I had used the recent Hastings Center Report case with my ethics brown bag session. The case involved a fifty-nine-year-old male who was being readmitted to the hospital from a nursing home because he has gangrene of three right toes and both his heels.

He is being told that amputation is necessary: the right leg above the knee and the left heel. What does he say? “Let’s wait it out.” And his family concurs.

Well, of course, the doctors wondered at his capacity, and voila! didn’t they discover that nine years ago, the family chose not to be his legal guardian so he was appointed one. So shouldn’t the team contact the guardian?

Though we have no information about his condition during the intervening years, I was dead set against re-activating the guardian. But 2/3 of the brown baggers took it for granted that the guardian needed to be consulted. They said, “Once you have a guardian, you have a guardian unless the court revokes it.”

But I caught dear Bill Colby on the fly this morning and he said a case can be made either way.

I think my problem is: Those in the majority seemed so implacable; they had found “an answer” in the law, and someone “outside” was going to make a decision about this “waiting” option.

It was an “ethics” brown bag, and I would have hoped that the providers would have talked more to the poor patient to try to understand his “Let’s wait.” But, like so many arguments, if you think you have “the answer,” why bother with all the loosey-goosey in-between matter?

You must have experienced this in YOUR healthcare lives; isn’t it frustrating?? HELP!

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Blogger Practical Bioethics said...


I haven’t read the case, but wonder about some questions, which likely aren’t in the case, I know.

Why did he have a guardian appointed nine years ago, at age 50? Did he lack capacity then?

Has the guardian reported annually to the courts, as is required in most states? Was the guardianship limited in some way?

Has the man regained capacity over 9 years? Has the guardianship been revoked or modified?

I think your brown baggers are right; if a guardianship is in place, the guardian must be contacted – neither the patient nor the family have decision-making authority, that’s why the state appointed a guardian, because they couldn’t, presumably.

A different question is: Why do the doctors question his capacity now? There is a famous 1978 New Jersey case, In re Quackenbush, involving similar medical facts, where a man in his early 70s I think refuses amputation and the doctors take him to court over capacity.

The judge says something like, “He’s more sane than you or me – he just doesn’t want to live without his leg, how can we take that choice away from him?” The judge finds Mr. Quackenbush has capacity to refuse amputation and says “no” to the appointment of the guardian.

So, does our case involve a man who now has capacity to make the decision to refuse amputation? If yes, should the guardianship be revoked if the guardian disagrees with his decision?


William H. Colby
Senior Fellow, Law and Patient Rights
Center for Practical Bioethics
1111 Main Street, Suite 500
Kansas City, MO 64105-2116
816-221-1100, ext. 203

Tuesday, April 14, 2009  

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