“It’s Medically Indicated”vs.

“It’s the Patient’s Choice”

Dan O’Brien, PhD, Senior Vice PresidentEthics, Discernment and Church Relations

September 21, 2012

22

Cases & Context

Two competing notions of autonomy or authority: A traditional view of physicians having

authority to determine medical benefit

An overriding emphasis on the value of patient autonomy

33

Cases & Context

Consider two cases Karen Ann Quinlan (1976) Helga Wanglie (1990)

Both cases involved Permanent unconsciousness Agreement re: effect of treatment Disagreement re: value of effect

44

Cases & Context

Quinlan Surrogate petitioned court to withdraw

treatment over/against the physician judgment of benefit

Wanglie Physicians petitioned court to withdraw

treatment over/against surrogate judgment of benefit

55

Present Context

Disagreement between physician & patient Physician wants to continue treatment

Patient/family wants treatment discontinued

What constitutes medical necessity?

What constitutes medical futility?

66

Medical Necessity

“Medical Necessity” A U.S. legal doctrine, related to medical activities

that may be justified as reasonable, necessary, and/or appropriate, based on evidence-based clinical “standards of care.” Generally covered by Medicare/Medicaid

Ethically speaking, a person has a right to advance his or her own welfare by consenting or by refusing consent to any treatment

77

Medical Futility

Two prevailing definitions Virtual certainty that a Rx will fail to achieve

a specific physiologic effect (physiologic)

Virtual certainty that a Rx, though it will have a physiologic effect, will not result in a sufficient benefit to the patient (normative)

Immanent demise futility, lethal condition futility, qualitative futility

88

Medical Futility

Formal Similarities An identified goal

A particular Rx aimed at that goal

Virtual certainty that the Rx will notbe successful in attaining that goal

The difference is in the nature of the goals & their corresponding forms of judgment

99

Medical Futility

Physiologic Futility Judgment = Probability of Effect Medical Judgment Clinical Expertise

Normative Futility Judgment = Value of Effect Moral vs. Clinical Reasoning No Generalization of Expertise

1010

Medical Futility

Preferable DefinitionVirtual certainty that the treatment in question

either will not be successful in attaining the mutually agreed upon goals of treatment

or will not be successful in achieving the treatment’s somatic effect

Normative

Physiologic

1111

Application

Implications Whether a particular treatment is futile or beneficial is always

in reference to a particular goal

“Care” is never futile, only particular Rx

Foregoing a beneficial Rx does not necessarily imply withdrawing care

Simply because a Rx is beneficial does not automatically imply that it is morally obligatory

Futility cases almost always entail a conflict over the value of a particular effect, but not over the probability of the effect

Need to distinguish between & acknowledge normative & clinical realms of reasoning

1212

Application

Unilateral Physician decisions to discontinue Rx should be limited to physiologically ineffective Rx supported by clinical experience & research discussed with pt/family early, in context of goals

Physician decisions to initiate or continue Rx should be made when there is presumed consent (emergency) or only with informed consent of patient/surrogate discussed with pt/family early, in context of goals

1313

Application

Neither “futility” nor “medical necessity” should be used to end conversation Not respectful of pt. autonomy Ignores the need to address root cause

of disagreement

1414

Application

Need to explore reason for phys-pt conflict Misperception of what is being proposed

“Can’t bear responsibility”

Failure to accept reality of medical condition

The “Immovable Script” (waiting for a miracle)

True value disagreement

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Communicating with Integrity

Tips for Communicating Begin communicating early & often

Focus on Goals of Treatment

Be consistent – keep team engaged

Choose language carefully

Be sensitive to cultural differences

Be aware of and acknowledge own biases

1616

Ethical and Religious Directives

“A person in need of health care and the professional health care provider who accepts that person as a patient enter into a relationship that requires, among other things, mutual respect, trust, honesty, and appropriate confidentiality. The resulting free exchange of information must avoid manipulation, intimidation, or condescension…Neither the health care professional nor the patient acts independently of the other; both participate in the healing process.”

- ERDs, Part Three, Introduction

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Conclusion

In cases of conflict re value of goals Ethics consultation may help clarify issues,

raise alternatives/compromises, provide institutional perspective and support

Dr. has right to withdraw, if competent and willing substitute will accept transfer

If no substitute, appeal to society through appropriate legal means

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References

Brody, BA and Halevy, A. Is Futility a Futile Concept? Journal of Medicine & Philosophy 1995: 20; 123-44.

Griener GG. The Physician’s Authority to Withhold Futile Treatment. The Journal of Medicine & Philosophy 1995; 20: 207-24.

Trotter G. Response to “Bringing Clarity to the Futility Debate.” Cambridge Quarterly of Healthcare Ethics 1999; 8: 527-37.

Schneiderman LJ, Jecker NS, and Jonsen AR. Medical Futility: Its Meaning and Ethical Implications. Ann. of Int. Med. 1990; 112: 949-54.

Slosar, John Paul. “Medical Futility in the Post-Modern Context,” Hospital Ethics Committee (HEC) Forum 19, 1 (2007): 67-82.

Veatch RM and Spicer CM. Futile Care: Physicians Should Not be Allowed to Refuse Treatment. Health Progress 1993; 74 (10): 22-27.

Tomlinson T and Brody H. Futility and the Ethics of Resuscitation. JAMA 1990; 264: 1276-80.