Futility and Hospital Policy

Abstract

Our purpose in this paper is to identify issues relevant to the development of effective and defensible hospital policies supporting physician judgments not to provide futile resuscitation. As we are convinced that such judgments are ethically defensible in principle, our question will be whether that which is defensible in theory can be implemented ethically in practice. We won't, therefore, take the time to provide a comprehensive theoretical defense of futility judgments (we think a successful defense has already been articulated),[1] or to review all of the large number of articles that have been published on this aspect of the debate. Nevertheless, we still need to highlight the most significant elements of the argument over futility, since these will help set some of the criteria by which a hospital futility policy should be judged. In what follows, we will focus chiefly on issues and policies surrounding futile resuscitation and say little about other treatment interventions, except by implication. Futile resuscitation deserves this special attention because it is the only intervention that requires consent for an order to withhold it; other futile interventions are typically not offered or discussed. Thus, decisions about resuscitation raise the most acute and perhaps the most frequent conflicts between patient or family demands and physician judgments. Certainly, however, there can be similar conflicts regarding other interventions, particularly regarding the withdrawal of an intervention that the physician has come to believe is futile. Much of what we say about problems for futile resuscitation policies may apply as well to policies aimed at futile treatments more generally, but discussion of the particulars will have to wait for another occasion. The Futility Debate: Lessons for Policy There are two fundamental considerations that support hospital authority over futile or grossly harmful interventions: the moral integrity of the health professions, and the obligation to enable autonomous choices by patients. Physicians and nurses have an obligation to help rather than hurt their patients by what they do. If health professionals could never say no to patient or family demands for interventions, they could not have control over the consequences of the procedures they perform. Without this control, physicians and nurses could not fulfill their moral obligation to promote the patient's welfare, an obligation that is fundamental to ethical practice. We in fact recognize the exercise of this moral authority every day, across the whole range of medical interventions. Patients with (or without) angina don't have a right to demand that a surgeon perform a bypass operation despite the risks of death or the likelihood of benefit; why should they have such a right with respect to CPR? By necessity, judgments by health professionals not to provide particular treatments are value laden. They require assumptions about what counts as a reasonable chance of success, as well as judgments about the proper goals of medicine. The surgeon, and not just the patient, gets to decide whether an 80 percent chance of death is too high, and whether a patient's fascination with surgical suites defines an acceptable goal of surgical practice. The second consideration arguing for physician authority over futile treatment only has the appearance of paradox. The appearance is that limiting the patient's power to demand futile treatments must undermine his autonomy rather than enable it. The appearance is deceiving for two reasons. The first is that autonomy is enabled or enhanced only when there is a real choice being offered between significantly different options. In cases where resuscitation is genuinely futile, the choice between attempting resuscitation or not is a bogus choice, and the offer of it is a deception. Second, the denial of choices is an infringement of the patient's right to autonomy only if the patient has the right to demand the option in question. …