“It’s Medically Indicated” vs. “It’s the Patient’s Choice” Dan O’Brien, PhD, Senior Vice President Ethics, Discernment and Church Relations September 21, 2012

2 2 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

3 3 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

4 4 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

5 5 Present Context Disagreement between physician & patient  Physician wants to continue treatment  Patient/family wants treatment discontinued  What constitutes medical necessity?  What constitutes medical futility?

6 6 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

7 7 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

8 8 Medical Futility Formal Similarities  An identified goal  A particular Rx aimed at that goal  Virtual certainty that the Rx will not be successful in attaining that goal  The difference is in the nature of the goals & their corresponding forms of judgment

9 9 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

10 Medical Futility Preferable Definition Virtual 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

11 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

12 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

13 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

14 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

15 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

16 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

17 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

18 References  Brody, BA and Halevy, A. Is Futility a Futile Concept? Journal of Medicine & Philosophy 1995: 20;  Griener GG. The Physician’s Authority to Withhold Futile Treatment. The Journal of Medicine & Philosophy 1995; 20:  Trotter G. Response to “Bringing Clarity to the Futility Debate.” Cambridge Quarterly of Healthcare Ethics 1999; 8:  Schneiderman LJ, Jecker NS, and Jonsen AR. Medical Futility: Its Meaning and Ethical Implications. Ann. of Int. Med. 1990; 112:  Slosar, John Paul. “Medical Futility in the Post-Modern Context,” Hospital Ethics Committee (HEC) Forum 19, 1 (2007):  Veatch RM and Spicer CM. Futile Care: Physicians Should Not be Allowed to Refuse Treatment. Health Progress 1993; 74 (10):  Tomlinson T and Brody H. Futility and the Ethics of Resuscitation. JAMA 1990; 264: