Center to Advance Palliative Care

To directly answer your question, in Alabama in the event that a patient lacks capacity and has no identifiable proxy decision maker the law allows 2 physicians to determine code status and a DHR, adult protective services case worker can enroll in hospice (or nursing home). From my time in Texas guardianship was more of the norm for Harris county. Practically, an ethics committee is often involved in reviewing these cases as well.

To develop a bit further, from an ethical instead of law perspective (noting that regulations vary and what I say hear may not completely apply to your situation):
- In the event that a patient lacks decisional capacity and has no identifiable proxy decision maker then a written directive such as a Living Will or Advance Directive can be turned to and invoked even in the absence of a proxy. However, it is my experience that most patients that lack a proxy also lack a written directive.
- Even when patients lack decisional capacity the standard of care should be followed. There are patients and circumstances in which resuscitation efforts are inappropriate and not standard of care, further there are circumstances where hospice care is the standard of care. In such circumstances it may be defensible to clearly document the medical decision-making process. How this principle is applied is greatly determined by your legal and cultural environment.
- Finally, the role of a surrogate decision-maker is really 2 fold. First, they are to decide on behalf of the patient using a standard of substitutive judgment, what the patient would decide if they were able. If they are not sure how the patient would decide then they can decide based on a best interest standard. The second reason we turn to surrogate decision makers is to, frankly, protect patients from us (the healthcare system). Patients that lack decisional capacity are vulnerable and efforts to ensure that they are protected should be employed. Methods of doing so vary but can include: ethics committees, appointed guardianship, patient advocates, court rulings, review by other medical professionals.
Thank you for the question and I hope that you are able to clarify regulatory standards so that optimal patient care can be achieved.


S. Joyce Crump, Program Manager
on behalf of
Ryan R. Nash, MD
Assistant Professor of Medicine
UAB Center for Palliative Care
Palliative Care Leadership CentersTM