Beyond Guardianship: A Tiered Approach to Care for Unrepresented Veterans

“Unrepresented” veterans — those lacking both the capacity to make medical decisions on their own and surrogates to act on their behalf — face difficulty transitioning from VA hospitals to post-acute care facilities, such as nursing homes or assisted living, due to their inability to provide consent.

To address this, the Department of Justice (DOJ) and Department of Veteran Affairs (VA) recently signed a memorandum of understanding (MOU) allowing VA attorneys to be granted the broad authority to petition for state court guardianship. However, this proposal compromises the ethics of care by granting the same institution seeking to conserve VA resources the legal power over veterans’ lives and care.

An Ethically Flawed Solution: Guardianship

Guardians have the power to make medical, financial, and personal decisions on behalf of the incapacitated individuals they represent. If the MOU’s goals unfold as planned, this power would be in the hands of attorneys who are not only unfamiliar with the patient but also have conflicts of interest. How can they simultaneously discharge their duty to “ensure the efficient use of VA resources” and their duties to “protect the Veteran’s rights [and] promote appropriate care”? In other words, how can the same attorney represent the interests of the VA as well as the patient?

In response to criticism about the unprecedented nature of the DOJ-VA framework for guardianship, the VA press secretary, Peter Kasperowicz, argued that VA attorneys serving as guardians is no different from clinicians or hospitals serving as guardians. But this misrepresents reality. Indeed, most state laws prohibit hospital employees from serving as court-appointed guardians for this very reason — the inherent conflict of interest.

Other Solutions: Physicians and Hospital Ethics Committees

States and institutions may deal with important medical decisions for unrepresented patients through three different approaches: guardianship, physicians, and hospital ethics committees. Guardianship is often viewed as “an option of last resort,” criticized for being too costly in time and money, but more importantly, for involving someone who generally doesn’t know much about the patient and isn’t adequately trained. Since scholars generally disregard guardianship as a tenable approach, the two major schools of thought focus on the physician approach or the hospital committee approach. 

The physician approach allows the physician to make final decisions on an unrepresented patients’ behalf. By contrast, the committee approach may require the physician to obtain approval from a hospital ethics committee or may rest entire decisions in the hands of these committees. Debates between these two schools of thought center around the actors’ expertise in ethics, conflicts of interest, potential for arbitrary decision-making, and ability to predict patient preference.

Advocates for the physician approach, such as Andrew Courtwright, argue that the combination of the physician’s skill, knowledge, and existing fiduciary duty to patients renders them the best fit to make decisions for unrepresented patients. Yet 39 states prohibit them from acting as general surrogates for patients, largely driven by concerns surrounding potential financial conflicts of interest. 

Thaddeus Pope, an advocate of the hospital ethics committee approach, provides the following example of this conflict of interest: A clinician under pressure to make ICU beds available is incentivized to undertreat a patient, and one under a fee-for-service reimbursement model is incentivized to overtreat a patient. Although this conflict is more concentrated in a physician approach, a similar conflict may arguably also arise with ethics committees that are associated with treating hospitals and therefore under administrative and financial pressures. 

Recent trends in this field favor a tiered approach, involving both physicians and hospital ethics committees, that correlates the amount of committee oversight with the gravity of a particular medical decision. An example of this approach is found in VA policy itself. For minimal-risk treatments and procedures, VA physicians may independently decide on behalf of unrepresented veterans. However, for procedures that require signature consent, a multidisciplinary committee is appointed to provide recommendations to the Chief of Staff or facility Director for final approval. 

A Promising Solution: Building Upon the Existing Tiered Approach

The VA policy described above is ambiguous as to which category decisions of discharge or transfers to post-acute care may fall under, but the DOJ-VA memo is not the proper solution to this ambiguity. Rather, the VA should follow in the footsteps of the New York legislature. New York law previously mandated different mechanisms for obtaining consent for routine medical treatment, major medical treatment, and the withholding or withdrawal of life-sustaining treatment. Since the decision to authorize discharge and post-acute care transfers did not fall comfortably within any of these categories, the state legislature passed laws in 2014 and 2015 to explicitly fill this gap. Now, for decisions about discharge and transfer to post-acute care, physicians in New York must obtain both a concurring opinion from another physician and approval by the facility’s ethics committee.

VA policymakers might consider creating a tiered approach tailored specifically to the context of discharge or transfer decisions. This framework might correlate the amount of oversight to the gravity of the post-acute placement. For instance, because placement in a nursing home more substantially intrudes on an individual’s liberty than placement at assisted living facilities, one might expect greater committee oversight for nursing home placement than for assisted living placement.

To ensure this approach is as effective and as unbiased as possible, VA policymakers must draw upon the work of scholars such as Pope and Courtwright to thoughtfully define the structure of these committees. They should ensure that committee members exercise judgement free from VA resource pressures; that bioethicists are involved in the committee, alongside actors other than the treating physician who are familiar with the patient, such as social workers; and that committee members are diligent in seeking to determine what the patient would have wanted if they were not incapacitated. 

Veterans deserve processes that carefully protect their best interests without financial or institutional bias. Granting the same institution seeking to discharge these patients the power to act as their legal guardian compromises the ethics of care. The VA and DOJ should reconsider this unprecedented approach and instead pursue a tiered approach that prioritizes the best interests of veterans.