For many years a debate has raged over what constitutes futile medical care, if patients have a right to demand what doctors label as futile, and whether physicians should be obliged to provide treatments that they think are inappropriate. More recently, the argument has shifted away from the difficult project of definitions, to outlining institutional policies and procedures that take a measured and patient-by-patient approach to deciding if an existing or desired intervention is futile. The prototype is the Texas Advance (...) Directives Act, but similar procedures have been widely implemented both with and without the protection of the law. While this method has much to recommend it, there are inherent moral flaws that have not received as much discussion as warranted. Because these strategies adopt a semblance of procedural justice, it is assumed that the outcomes of such proceedings will be both correct and fair. In this paper, I argue that there are three main irremediable defects in the policy approach: there is the potential for arbitrary decision-making about futility in specific cases; there are structural, pre-ordained consequences for ethnic minorities who would be disproportionately affected by the use of these procedures; and the use of rationing justifications to support the use of these policies. These flaws detract so much from any benefit that could be derived that they make such strategies more harmful than helpful. (shrink)

In this issue of JCE, Douglas Diekema argues that the best interest standard (BIS) has been misemployed to serve two materially different functions. On the one hand, clinicians and parents use the BIS to recommend and to make treatment decisions on behalf of children. On the other hand, clinicians and state authorities use the BIS to determine when the government should interfere with parental decision-making authority. Diekema concedes that the BIS is appropriately used to “guide” parents in making medical treatment (...) decisions for their children. But he argues that the BIS is inappropriately used as a “limiting” standard to determine when to override those decisions. Specifically, Diekema contends that the BIS “does not represent the best means for determining when one must turn to the state to limit parental action.” He argues that this limiting function should be served by the harm principle instead of by the BIS.I contend that we should not reassign the BIS’s limiting function to the harm principle. In this article I make two arguments to support my position. First, the BIS has effectively served, and can serve, both guiding and limiting functions. Second, the harm principle would be an inadequate substitute. It cannot serve the limiting function as well as the more robust BIS. (shrink)

Partly because physicians can “never say never,” partly because of the seduction of modern technology, and partly out of misplaced fear of litigation, physicians have increasingly shown a tendency to undertake treatments that have no realistic expectation of success. For this reason, we have articulated common sense criteria for medical futility. If a treatment can be shown not to have worked in the last 100 cases, we propose that it be regarded as medically futile. Also, if the treatment fails to (...) restore consciousness or alleviate total dependence on intensive care, we propose such treatment be judged futile. This definition provides clear end points and encourages the profession to review data from the past and perform, prospective clinical studies that not only report treatments that work but also treatments that do not work. We have also argued that, in a variety of settings, physicians have no ordinary ethical obligation to offer futile interventions. Although physicians should inform, and discuss all decisions to withhold or withdraw medical treatments with patients, they need not obtain the patient's permission to desist from futile interventions. (shrink)

In situations where experience shows that a particular intervention will not benefit a patient, common sense seems to suggest that the intervention should not be used. Yet it is precisely in these situations that a peculiar ethic begins to operate, an ethic that Eddy calls “the criterion of potential benefit.” According to this ethic, “a treatment is appropriate if it might have some benefit.” Thus, the various maxims learned in medical school instruct physicians that “‘an error of commission is to (...) be preferred to an error of omission,’ or ‘when in doubt, cut it out’ or ‘if but one patient is helped, then the treatment is worthwhile.’”. (shrink)

The Texas Advance Directive Act allows physicians and hospitals to overrule patient or family requests for futile care. Purposefully not defining futility, the law leaves its determination in specific cases to an institutional process. While the law has received several criticisms, it does seem to work constructively in the cases that come to the review process. We introduce a new criticism: While the law has been justified by an appeal to professional values such as avoiding harm to patients, avoiding the (...) provision of unseemly care, and good stewardship of medical resources, it is applied incompletely. It allows physicians and institutional committees to refuse “futile” treatments desired by patients and families while at the same time providing no way of regulating physicians who recommend or even push “futile” treatments in similar cases. In this sense, the TADA is incomplete on its own terms. (shrink)

Baconian science, a tool for plundering nature, has impelled physicians to insist on medical treatment even when it is futile. The Hippocratic tradition of medicine teaches us instead to acknowledge nature's limits.