Health Advocacy Ethics – Conflict of Interest? Or Important Service?

A recent conversation with a handful of knowledgeable people, people I respect a great deal, yielded two different outcomes – either a loud “yes, of course!!” or a loud “no, no way!”

So I want to know what YOU think. As a prelude to the story – the question I will ask you at the end is:

Should Gwen become Mrs. Smith’s healthcare proxy? Can she ETHICALLY make that shift?
(We are not asking a legal question here ? only a question of ethics.)

Mrs. Smith is 90 years old and until recently was quite healthy. She is alone; her husband died many years ago, and they never had any children. She has a few nieces and nephews, but hasn’t seen or heard from any of them in years. She lives in the country and has no neighbors nearby. Even her close friends from church have all passed away.

Gwen has been Mrs. Smith’s health advocate for several years now, accompanying Mrs. Smith to doctor’s appointments, lab tests, and whatever was needed for her care. About three years ago, Mrs. Smith was hospitalized for a brief time; Gwen sat by her bedside and was a liaison between the hospital staff and Gwen for the duration.

Over these years they have become very close. Mrs. Smith trusts and values Gwen’s opinions more than anyone else on earth and thinks of her almost as the daughter she never had. Now Mrs. Smith has asked Gwen to help her make the healthcare decisions that she will designate in her advance directives. Included is a request to Gwen to become her proxy; that is, the person who will, if Mrs. Smith becomes incapacitated, make any decisions that regard end-of-life care on Mrs. Smith’s behalf. (“Proxy” is one term used – others could be agent, representative, guardian,  or power of attorney.) Gwen, having been Mrs. Smith’s advocate for so long, knows Mrs. Smith and her end-of-life wishes better than anyone. But as a patient advocate who cannot make decisions for Mrs. Smith, she must give thought to the ethical and legal considerations before she agrees. And that’s where I am asking your opinion today.

Remember the question:

Should Gwen become Mrs. Smith’s healthcare proxy? Can she ETHICALLY make that shift?

Background:

Patient advocates are hired to shepherd clients through their healthcare journey, from symptoms to diagnosis, through treatment, billing, claims, creation of advance directives and more. By contract or agreement, patient advocates do not and will not make decisions for their clients. Instead they help support their clients by finding the right resources to help in that decision-making.

Further, this non-decision-making stance is identified in the existing codes of standards and ethics for private, professional health advocates.

Legally: For the sake of this argument, we’re going to assume that paperwork can be changed; that Mrs. Smith’s lawyer can draw up contracts that nullify the advocacy contract in favor of proxy contract. (BTW I don’t know that to be true, and I am not a lawyer. But to ask the ethics question, we’ll assume it can be done.) We know that some states and provinces have licensing requirements for fiduciaries, guardians and conservators, and there are likely liability or E&O insurance questions, too, but we aren’t asking those questions today.

The Ethical Issue: There are at least two sides or arguments to this issue:

Side: Yes, Gwen can ethically choose to be Mrs. Smith’s proxy. Reasoning:

This should be Mrs. Smith’s choice. She has confidence, respect and love for Gwen. It will give Mrs. Smith an enormous amount of peace of mind which ethically is the right thing to do.

We can be reasonably sure Gwen can’t be both advocate AND proxy at the same time, but letting Mrs. Smith choose which role she prefers for Gwen puts her, as the patient, in the most important position (patient-centered, patient focused) and that is as it should be.

Side: No, Gwen cannot ethically agree to be Mrs. Smith’s proxy.* Reasoning:

Such a shift in relationship might create the appearance of a conflict of interest and is therefore unethical. Others may question the relationship between Gwen and Mrs. Smith as if Gwen has weaseled her way into Mrs. Smith’s good graces for Gwen’s own gain (for example, maybe Mrs. Smith’s will has been rewritten for Gwen’s benefit) or any other scenario where the relationship could be perceived as being for Gwen’s gain and not Mrs. Smith’s peace of mind.

This could result in a great deal of unpleasantness ranging from reports to Adult Protective Services (to determine whether financial or psychological abuse is occurring), to accusations by long-lost relatives. The resulting disruption and negativity to Mrs. Smith and to Gwen’s professional reputation are not worth the change. (Remember, please, that it doesn’t matter whether or not any of that conflict is true or real. It needs only be a perception on the part of someone who can make waves that the conflict exists.)

So once again, let me return to the question: Should Gwen become Mrs. Smith’s healthcare proxy? Can she ETHICALLY make that shift? Now it’s your turn to answer!

• Please take this poll.
• Weigh in with your comments, questions, opinions below.

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This poll was removed in February 2016 due to technical problems.
Here were the results before it was removed:

• 409 total votes:
• 211 agreed that Gwen can ethically be Mrs. Smith’s healthcare proxy
• 198 say that no, she cannot ethically make that shift

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Update 2016:  See the follow up to this post which illustrates how, ethically and legally, patient advocates can, in fact, offer proxy or guardianship services to clients.

(*Many thanks to friend and colleague Ruth Linden for her explanation of the potential ethical conflict of interest.)

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