For Love and Money: Revisiting Financial Conflicts of Interest in Surrogate Decision Making

Abstract: A common trigger for an ethics consult is when a surrogate decision maker—often, a family member—stands to gain financially from a medical decision for an incapacitated patient: for example, end-of-life decision-making when the family is the beneficiary of a patient’s life insurance policy, or discharge decision-making when a surrogate depends on income from a patient’s social security benefits. The predominant approach to these financial conflict of interest (COI) cases in the clinical ethics literature is to question the surrogate’s fitness to make decisions for the patient and potentially remove them from the decision-making process. In this presentation, however, I argue that the predominant approach makes for an untenable status quo due to two problems: (1) the approach’s assumption of a clean distinction between patient and family interests results in undue scrutinization of surrogates with shared familial financial interests, and (2) there are significant epistemic barriers to determining when intervention in a surrogate financial COI is warranted. The predominant approach therefore actually fails to protect patients’ values and interests, and may further marginalize families struggling with the financial burdens of medical care. I thus defend a different response to surrogate financial COIs: intervention in the decision-making process is prima facie warranted only when there is good evidence that a surrogate’s decision will significantly jeopardize a patient’s medical best interests. I conclude with strategies for clinical ethicists and providers to work collaboratively with surrogates as they navigate tensions between family finances and what is known about the patient’s values.

Keywords: surrogate decision making, financial conflicts of interest