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The Futility Debate
 

In hindsight, it is unfortunate that physicians who thought it inappropriate to continue requested treatment for seriously ill patients chose to characterize their concerns as one about “futility.” That makes it sound like a new issue, though it is not really so new as it may seem, and it has mired the field in disagreement over the definition of futility.

In truth, these are usually just cases in which the doctors, rather than the patients, think that treatment no longer serves the interests of the patients. Viewed that way, the initial question should be “who is assigned the responsibility to make this determination when a patient is incompetent ” and then “will courts overrule [the guardian, for example] if the physician’s view is more convincing?” The first question is a familiar one. The second question we have not covered, but the answer is that courts vary in how much they defer to the legally authorized surrogate and how often they prefer to make their own determination of the patient’s best interests (assuming that this is a state that allows “best interests” determinations for patients whose wishes are unknown). When a court concludes that the guardian’s request for continued treatment is not an abuse of discretion (as it did in the Wanglie case, p. 598 n. 4), then the physician could ask for permission to withdraw from the case due to moral objections. This is analogous to the “conscience clauses” that allow physicians to opt out when a family wants to stop treatment.

However, several facts about these cases have obscured the fact that most of them can be handled using existing methods and rules. One complicating factor is that a claim of “futility” suggests that the treatment is completely worthless/ineffective.

When that is literally true, there really is very little basis for insisting that the doctor continue treating (although the casebook authors intriguingly ask whether the family should be allowed to pay for continued treatment if they can find a willing provider and the treatment is not painful to the patient). On that basis, the courts don’t order physicians to continue treating when the patient is brain dead and the family wants to keep the ventilator running. Another example would be a quack cure. A third would be a “treatment” now shown to have no beneficial effect on survival rates. These cases are not difficult unless the parties dispute whether its odds are too long to let the family demand it (e.g. what if worked once in 100,000 uses?)

However, most “futility” disputes involve treatments that are successfully keeping the patient alive (like the ventilator treatments in Baby K). In that sense, at least, they are not completely “futile.” Instead, it would be more accurate to say that the physician thinks that they don’t offer the patient sufficient benefits because they cannot return the patient to consciousness or get them out of the hospital, especially if the treatment is burdensome to the patient. Whether the physician’s conclusion is correct or not depends on whether you agree with her about the benefits of being alive in the patient’s catastrophically ill state, perhaps one in which the patient has no awareness of his existence.¹  This claim is controversial because it assumes that some people have a quality of life so poor or so pointless that they receive no material benefit from continued life support. Recall that the Missouri Supreme Court did not want third-parties making this decision, but that the Julia Warren case seems to have reached the opposite conclusion (albeit with some confusing language about futility as well). Thus, these cases are the ones that can be handled using the rules set up for the withholding of life-support. Unfortunately, the courts rarely see the analogy. Thus, in cases like Causey, they look for other standards by which to decide the case. In that case, the court let physicians stop care when it is the “standard of care” to do so. Wouldn’t it be better to treat this dispute as a conflict over end-of-life values, resolved by letting the doctor opt out and the family find a willing provider, if they can?²

A final category of cases are those in which the treatment is beneficial to the patient on balance but its benefits don’t justify its social costs. Assume for example that you conclude that keeping vegetative patients alive for two decades is beneficial to them (a hotly contested conclusion). Even so, you might conclude that the money necessary to provide this benefit would be better spend on mental health care for conscious and suffering patients or better research on prematurely born infants. Our society has not yet been willing to tackle these “rationing” questions openly and honestly, but it is widely assumed that some futility disputes have concerns about poorly spent resources beneath the surface. What should a court do when this is the strongest argument against ordering continued treatment? (In an ER, would EMTALA dictate a conclusion? See Baby K).

One final difference materially differentiates the futility cases from the withholding of treatment cases. Parental decisions to stop life-sustaining treatment are not restricted by the ADA, but physician and hospital decisions are (except perhaps in state hospitals). Go back to your notes on the duty to treat and review why courts have been stumped in applying the ADA to cases where the treatment that the physician does not want to administer is “related to” the patient’s disability.


To recap, you need to be able to differentiate three types of futility disputes in order to choose the applicable governing rules:

1. Treatments that don’t work.
2. Treatments that won’t provide a net benefit to the patient (burdens to patient exceed benefits).
3. Treatments whose modest benefits don’t warrant the social cost.

Also, consider whether the ADA or EMTALA mandate compliance with the family’s request for treatment.

Problem: Consider the Causey court’s comments about radiation treatment at page 596. Does the 3-tiered approach help you to explain why a court might require ventilation (if it concludes that life is always beneficial) but not an invasive treatment like radiation or chemotherapy (because the burden may exceed the benefit)? Also, consider the question posed in Note 6, p 600, about the distinction between ventilation and feeding tubes.. Does that raise another issue altogether (i.e., the special status of food and water)?

Brain death: The irreversible cessation of the functioning of the entire brain.
Persistent Vegetative State: Only the brains stem still works (not the cerebrum). “Awake, but unaware.” No consciousness; no experience of pleasure or pain.
Coma: Like PVS, but damage to brain stem makes the patient “asleep” and unaware.

Assisted Suicide–some final thoughts

You heard discussions about whether decriminalization of assisted suicide would be good policy. An interesting question raised by the debate over assisted suicide is whether restrictions like those imposed in Oregon (e.g., waiting period; psych consult) ought also be imposed when competent patients refuse life-extending care.

A question that we did not reach is whether, regardless of popular preference, the constitutional right to privacy preserves the right to assisted suicide for those of use who want it, at least when the state’s interest in our life is weakest (short life expectancy, for example). The cases in our book inform you that the Supreme Court declined to endorse a right to assisted suicide. ³  How did the Court sidestep the broad language in Casey about the individual’s right to define “one’s own existence” and make “the most intimate and personal choices” in our lives?

Be sure that you can distinguish: (1) withholding or withdrawing of treatment; (2) assisted suicide (juries acquit doctors); (3) voluntary euthanasia of a currently competent patient or a no-longer competent patient who left instructions (juries sometimes convict doctors or family members); and (4) nonvoluntary euthanasia (clearly homicide).

¹ Many families and doctors believe that continued treatment of permanently vegetative patients is futile. They don’t suffer a burden because they are unaware, but they don’t enjoy a benefit for the same reason. From this perspective, treatment is pointless. In fact, some commentators have suggested that we should expand the definition of “brain death” to include PVS because we seem to be moving in the direction of treating them as a special case anyway and because many people associate “humanness” or “personhood” with human consciousness. No state has done so, thus far.

² In addition, the court naively assumed that a single “consensus” standard of care can be found for tough ethical decisions like these. Not so. Furthermore, the court’s approach would only protect the conscience of physicians whose views accord with that consensus. As a result, it was probably a mistake, albeit a reasonable one, to use the malpractice standard of care as the rule of decision.

³ However, four Justices hinted that it might exist in the most dramatic cases.
 

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