Medical Futility On the March
For years I have been warning that bioethicists are getting their ducks in a row to permit them to refuse wanted life sustaining treatment that is removed because it keeps the patient alive, not because it doesn't provide medical benefit. These are value judgments, not medical determinations.
And now they are beginning to come. I commented about a futile care case in Michigan a few days ago, and here's another. I don't know enough about the facts of this case to opine completely, but this sure seems to be a futile care case in action. St. Luke's Hospital in Houston is going to unilaterally remove a woman from life support, even though her family wants her to continue to receive care. (It is as if Michael Schiavo and the Schindlers wanted Terri's care continued but the hospital said no.)
Note that the treatment is apparently being removed because it works, not because it doesn't--which means, in effect, that the hospital ethics committee has declared the patient's life to be futile.
Texas has a terrible law that permits an unelected, self-appointed, anonymous ethics committee to forcibly remove care. Once that happens, the patient has 10 days to find another hospital. These are closed proceedings. I am unaware of any records kept of the evidence presented at the hearings or the deliberations.
These are life and death decisions and it seems to me that there may be a significant constitutional issue here of immense importance. A law permits private decision-making that will result in death without even the right to a public hearing, to cross examine witnesses, or a formal appeal. Someday, someone is going to attack this statute and its constitutional implementation frontally in federal court. I have already urged some attorneys in private that they do just that. Let us hope that fairness and simple justice prevail.
posted by Wesley J. Smith @ 8:53 PM
7 Comments
7 Comments:
Regarding the Texas law, the text can be found here: http://www.capitol.state.tx.us/statutes/docs/HS/content/htm/hs.002.00.000166.00.htm.
The law explicitly states that "the physician [who initiated the futility review] shall make a reasonable effort to transfer the patient to a physician who is willing to comply with the directive". This physician does not have to be in a different care facility. In other words, all the family has to do to continue care of this patient is find one qualified doctor at that hospital to take over care as her attending physician. Apparently there is not one doctor there who regards her ongoing treatment as medically "appropriate", which suggests something about how beneficial it really is.
As for record-keeping, the law requires that the reasons for the determination that care is "inappropriate" must be provided in writing to the patient's guardian, and entered into the patient's record.
The law also provides that a court can extend the 10-day period for transferring the patient to another facility, but "only if the court finds, by a preponderance of the evidence, that there is a reasonable expectation that a physician or health care facility that will honor the patient's directive will be found if the time extension is granted."
We have not been given any information about this patient's status, treatment, or prognosis in this case (beyond the family's somewhat wild descriptions). But on the basis of the terms of the law itself, we know this much: the patient's treating physician has determined that further treatment would be inappropriate; the hospital's ethics committee has reviewed that decision and agreed; no other physician in the facility has been found who disagrees; and the family has been given assistance in finding another facility and caregiver who will undertake care under these circumstances, and there is apparently no one else available who feels that further treatment is appropriate. The family has the right to a court-ordered time extension if they believe they can demonstrate a "reasonable expectation" that someone who agrees this care is appropriate can be found - and they apparently have not availed themselves of the opportunity.
Perhaps, as the family insinuates, the entire hospital staff are engaged in a conspiracy to kill this patient, while keeping her drugged to the point that she cannot express her own wishes. The facts adduced above do not suggest that is likely.
You are right that the question of "appropriateness" of care is value-laden. A strict definition of "futility", given in functional terms, would be more desirable. But the extensive opportunities for intervention in the implementation of this law practically guarantee that it can only be invoked in the most obvious cases. If you can't find a single doctor in a religious hospital in a conservative Southern state who agrees that this patient, who has apparently expressed previous desires for continued treatment, is getting appropriate care in receiving that treatment, I am willing to accept that as a stand-in for true "futility".
Your claim that the futility statute is being invoked "because the treatment is working" is hard to make sense of. If the treatment weren't working - i.e., if she was actively dying - there would be no need for a futility determination. The futility clause can be invoked only when the treatments at issue are working - and futile. That's the whole point.
The real issues are two: should there be such a thing as a futility clause, and if so is it being correctly employed in this case? As I have said, we don't have enough facts to know for certain, but there is strong circumstantial evidence that i is being correctly employed. But should it be?
You seem to object to the notion of "futility" entirely. But the only alternative is to allow patients, or their families, or their guardians, or, apparently, the birth relatives of Terri Schiavo, on their nation-wide tour of every hospital that makes treatment decisions they don't agree with, to demand continued treatment for any patient no matter what the circumstances of the case or the effects of that treatment. That seems obviously unworkable, for any number of reasons - and bad medicine besides.
The above poster's link on his name explains it all.
I would take ANY "bioethicist" with a huge grain of salt.
The 10 day period is found at Health and Safety Code 166.046(e)
"The physician and the health care facility are not obligated to provide life-sustaining treatment after the 10th day after the written decision required under Subsection (b) is provided to the patient or the person responsible for the health care decisions of the patient unless ordered to do so under Subsection (g)."
The point is that the hospital (and bioethicists who support medical futility) are imposing THEIR values on the family and patient, proving that these issues are increasingly less about "choice" and more about certain patients having no right to live based on a "quality of life" ethics.
The point is that the hospital (and bioethicists who support medical futility) are imposing THEIR values on the family and patient, proving that these issues are increasingly less about "choice" and more about certain patients having no right to live based on a "quality of life" ethics.
Are you then suggesting that any patient can demand open-ended treatment under any circumstances, whether or not that treatment can make a material difference to the patient's experience or the outcome of the case, and whether or not they can pay for that treatment, and whether or not provision of that treatment intrudes on the need for the same resources of another patient who could benefit materially from them?
If so, then you are advocating history's first-ever positive right to hospital treatment irrespective of any consideration of circumstances whatsoever. Just about nobody is going to agree to that.
If not, then you agree that there must be some limits to patients' rights to demand treatment resources. Now, how would we set those limits in cases where families make impossible demands or have unrealistic expectations? I suggest we should set them with reference to the actual efficacy of the treatment in materially contributing to the patient's conscious experience of her own life. There's no point in providing anything that won't make an actual difference in the patient's status, and there's no point in providing "benefits" that the patient will never experience. What's your suggestion?
From a physician's point of view there are a lot of medical questions about this case. However, an important point is they are talking about withdrawing treatment versus instituting new treatment. The family claims Andrea Clark is not brain damaged, not comatose, and interacts with others by moving her lips and blinking her eyes. They state she very clearly communicated "I want to live. I don't want to die." If that is true, then Ms. Clark and her family are content with maintaining this quality of life as long as possible. It seems very strange to impose an ethics committee determination that the status quo is unacceptable when the patient has indicated it is. Because of confidentiality issues we are only getting one side of the story and another side needs to be heard. However, as I have written here the hospital that has a very significant financial interest in seeing this patient dead should not be the one making these decisions.
re: #2
I wouldn't necessarily dismiss all bioethicists out of hand. Just ones that, like Kevin, find a political movement to grant chimps the same legal status as humans "interesting" rather than "abhorrent," "repulsive," "grotesque," "infuriating"...
It would be amusing to watch the Kevin Keiths and Pete Singers of the world wrangle with the utterly intractable philosophical conundrums that strict reductionism exhibits as a matter of course, were their proposals not so outrageous and dehumanizing. Watch near the end of the article, where Keith presents his a priori and arbitrary commitment to "reproductive freedom," while careful not to tread to closely to a definition of "personhood" that might grant aid and comfort to the pro-life position.
Is it too much to presume that the most favorable outcome in Keith's mind would be a philosophical/legal framework where chimps and gorillas enjoy legal "personhood," but where it's open season on unborn babies in any trimester, and medical "specialists" and hospital boards decide who deserves to live and die?
The problem here is not "naturalistic fallacies" or "is/ought" dichotomies. It's the morally-truncated Cartesian reductionist project that got us here in the first place. Unless and until society starts questioning the metaphysical underpinnings of the modern scientific project, the outrageous intellectual positions like that of Pete Singer and his intellectual progeny such as Kevin here will still be taken seriously. Lord help us.
re: #2
I wouldn't necessarily dismiss all bioethicists out of hand. Just ones that, like Kevin, find a political movement to grant chimps the same legal status as humans "interesting" rather than "abhorrent," "repulsive," "grotesque," "infuriating"...
It would be amusing to watch the Kevin Keiths and Pete Singers of the world wrangle with the utterly intractable philosophical conundrums that strict reductionism exhibits as a matter of course, were their proposals not so outrageous and dehumanizing. Watch near the end of the article, where Keith presents his a priori and arbitrary commitment to "reproductive freedom," while careful not to tread to closely to a definition of "personhood" that might grant aid and comfort to the pro-life position.
Is it too much to presume that the most favorable outcome in Keith's mind would be a philosophical/legal framework where chimps and gorillas enjoy legal "personhood," but where it's open season on unborn babies in any trimester, and medical "specialists" and hospital boards decide who deserves to live and die?
The problem here is not "naturalistic fallacies" or "is/ought" dichotomies. It's the morally-truncated Cartesian reductionist project that got us here in the first place. Unless and until society starts questioning the metaphysical underpinnings of the modern scientific project, the outrageous intellectual positions like that of Pete Singer and his lesser intellectual progeny such as Kevin here will still be taken seriously. Lord help us.
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