The Messiha and Schiavo Cases: Third-Party Ethical and Legal Interventions in Futile Care Disputes

Abstract

In the United Kingdom, termination of artificial feeding and hydration for patients in a persistent vegetative state generally requires the prior sanction of a High Court judge.UK clinicians also routinely seek judicial resolution of protracted disputes with relatives about ceasing 'futile' active treatment on incompetent intensive care patients lacking a formal advance directive. The same has generally been true in the United States. Until recently, however, Australian intensivists appear to have lacked either the training or the support to initiate or participate in these types of cases, and the discussion about what Australian courts would do has been largely confined to legal academia. In this article, we examine the recent case of Messiha vs. South East Health (the Messiha case), and the various judicial and political interventions in what has become known as the Schiavo case in the US, for their practical lessons about the role of ethical, legal and legislative interventions in physician approaches to resolving disputes about the technical 'futility' of treatment. Relatives may increasingly demand that an incompetent patient’s treatment be continued indefinitely, despite clinical advice that it is technically 'futile' (offering no reasonable prospect of return to a meaningful quality of life). Third-party interventions may become a more frequent part of attempts to resolve such disputes where there is no formal advance directive. In the Messiha case, the Supreme Court of New South Wales upheld clinical judgement regarding the patient’s best interests as most important. In the Schiavo case in the United States, clinicians’ decisions on futility of treatment had received unwavering judicial support in more than 20 proceedings. Consulting a clinical ethics committee in such scenarios is both legally recommended and clinically warranted as an important device for diffusing tensions between relatives and clinicians, as well as clarifying their respective ethical and legal responsibilities. In protracted or apparently irresolvable disputes with relatives, applying for a judicial declaration on futility of treatment has become a practical option for intensivists in Australia and should be a recognised part of their training.