Striving to Learn About Patients
These values may offer valuable guidance for how to approach making decisions for unrepresented patients. In order to respect the dignity and uniqueness of each person, it should not be assumed that, just because a patient is unrepresented, they do not have values and preferences. Most likely someone, somewhere, knows something about them,38
and so whenever possible, before making a decision, there should be a diligent search to attempt to find a surrogate, or expand the list of those who can be considered a valid surrogate, in order to increase the chances of finding a person who has information about this individual’s goals, values, or preferences.2
However, it is often very difficult to locate such an individual, and at times there truly is nobody who knows a given patient.2
Yet, even then, it may be possible to find some sort of evidence about how an individual lived their life in order to attempt to infer some of their values.3
These Jewish principles suggest that not only is this an expectation of some contemporary bioethicists, but that there may also be a Biblical obligation
to make every attempt to do so.
Diverse Interdisciplinary Decision-making Committees
Beyond that, and particularly when nothing at all can be learned about a patient or anyone whom they might know, respect for the inherent value and dignity of each human being, as well as the equality of all persons, demands that hospitals develop rigorous decision-making processes for these patients in order to ensure that they are treated fairly and with dignity—not just out of respect for their autonomy, but because there is an obligation
to care for individuals this way.
Some states in the USA authorize clinicians to make the decision with almost no oversight,3 and others require the safeguard of a second physician or committee to oversee medical decisions made on behalf of unrepresented patients.2 Yet other American states have a tiered approach, in which they allow an attending physician to make routine decisions alone, but require approval from another physician for more risky, major medical treatments, and they require consultation with an independent physician or multidisciplinary committee (or court approval) for decisions involving life-sustaining treatment.2 Although it is essential to ensure a decision-making process that is accessible, quick, convenient, and cost-effective, utilizing the values outlined above for cases which are neither urgent nor routine would seem to require engaging in the most rigorous safeguards of expertise, neutrality, and careful deliberation.4 I therefore believe that in decision-making for unrepresented patients, Jewish ethics would advocate for following the more demanding process of involving a diverse interdisciplinary committee, comprising not only the treating clinicians, but also individuals representing that patient’s own religious or cultural community, whenever necessary and possible.
Indeed, in addition to the careful oversight of witnesses in capital cases in a Jewish court, the sages of the Talmud created the counterintuitive policy that if all twenty-three judges deciding on a capital case vote unanimously to convict, then the defendant goes free,39,40 because complete unanimity indicates that not enough of an attempt was made to explore and understand different arguments and perspectives.41 Utilizing an interdisciplinary committee to carefully deliberate would thus reflect Jewish values, in that it would seek to avoid bias and conflict of interest, and to safeguard procedural fairness, transparency, consistency, and oversight, while ensuring that multiple, carefully weighed perspectives are incorporated. This process should thus be utilized for complex cases even when state laws permit a far simpler standard, because it offers a higher likelihood of fair and rigorous decision-making than does a single person making unilateral decisions without oversight. Achieving good ethical consensus is not merely about agreement, but about who is agreeing and the quality of the deliberative process.42
Ritualizing These Values
The values detailed above encourage following the strictest standards of the bioethicists quoted in this article2
and utilizing an interdisciplinary committee rather than simply having an individual physician unilaterally make all healthcare decisions. However, I believe these values require us to go even further than what has been previously recommended and to take steps to ritualize these ideals, based on the formal statement about the image of God read to witnesses in capital cases, mentioned above. People’s busy schedules and the high volume of these sorts of cases may unfortunately lead to some practitioners occasionally forgetting that an unidentified patient is more than just a body lying in a hospital bed. Even when a practitioner values something, research has shown that an act of “priming,” which is simply reading a statement or being reminded of one’s values prior to being asked to engage in an act, increases the likelihood of compliance with one’s own values and keeping their positive intentions in mind.43,44
I therefore recommend that prior to meeting to make medical decisions on behalf of unrepresented patients, a brief formal statement should be read, reminding each participant of the value, equality, and uniqueness of every human being, modeled after the Talmudic statement made to witnesses in capital cases, in order to protect highly vulnerable populations. Ideally this statement should include the patient’s name, some known detail about them, or display a photo of them, if possible. This statement should be as inclusive as possible and refer to the extent of the healthcare provider’s duty to care for others and to provide care that is as concordant with the patient’s own goals and values as possible, highlighting the dignity of each person and the magnitude of the decisions being made on their behalf.
In the diverse healthcare environment, this statement could be something as simple as reading aloud an inclusive and non-sectarian line such as, “Before engaging in making decisions on behalf of this patient [insert name if known], we hereby recognize our patient’s inherent value and uniqueness and commit ourselves to striving to understand who this patient is, to fulfill our duties toward and care for this patient equitably and with dignity, to the best of our ability.”
In the Jewish tradition, ritual practices, such as the Passover seder, are frequently utilized to help transform abstract ideals into living practices that shape character.45 Similar types of priming statements are made before performing many mitzvot. For example, some traditional Jewish prayer books suggest beginning one’s day by proclaiming, “I hereby take upon myself to fulfill the commandment to ‘love your fellow person as yourself.’” Indeed, the idea of the physician’s oath has been common in the history of medicine, and many have suggested Jewish versions to be recited by doctors prior to engaging in medicine46 and by patients prior to receiving treatment.47
Likewise, the idea of healthcare providers engaging in helpful rituals is not unheard of in contemporary healthcare. For example, many emergency rooms and ICU’s have implemented “post-code pauses” (also known as “post-resuscitation debriefings”) in which, following a resuscitation, trauma, or death, staff engage in a formalized moment of silence, followed by some simple reflections, questions, and debriefing in order to pay homage to the patient and process their own thoughts and feelings before continuing their shift. These pauses have been shown to help healthcare providers feel more present and able to meet the needs of all of their patients.48,49