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Futility and hospital policy.

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. If the patient's right to autonomy is limited by the rights of others, then limitations of patient choice made on behalf of protecting those other rights are not ethically objectionable. To assert that limiting choices regarding futile treatment is per se a violation of patients' rights of autonomy begs the question, unless the only precept in medicine is "The customer is always right."

There are several common objections leveled against giving physicians this authority over futile or harmful treatment. A review of them will help identify some valid concerns that may need to guide policy.

One of these is that since futility judgments make value-laden assumptions, they should be shaped only by the patient's values. When shaped by the values of the physician or profession, they are an illegitimate infringement of patient autonomy and represent a resurgence of unwarranted paternalism.

As an objection in principle against the exercise of futility judgments this argument is unsuccessful, for the reasons sketched above. In highlighting the value-laden character of these decisions, however, it reminds us that the value assumptions made in cases of futility will have to receive their warrant from somewhere. If the warrant is not found in the patient's right to self-determination, neither can it be found in the individual physician's values. When backed by institutional policy, the refusal to provide futile treatments is made on behalf of professional integrity, not merely individual conscience. Therefore, a futility policy will have to incorporate some means for articulating the professional values at stake and for certifying that they are indeed values for the profession, not values that are ethically optional for individual professionals.

The objection suggests another important concern: that the values employed in futility judgments will be insulated from the values of the wider society the profession is licensed to serve. The futility judgments that result will be at odds with widely understood public convictions about the proper social role of the medical enterprise. This is again a concern that is practical rather than theoretical. Futility policies designed successfully to avoid such a gap between professional and public values and goals will not be objectionable on this score.

Another common objection against physician authority over futile treatment is that it justifies the decision not to discuss resuscitation status with patients or families, and encourages the all-too-common avoidance of uncomfortable conversations about death, dying, and the limits of medicine. This argument is also unsuccessful as a criticism of the ethical justification for permitting futility judgments. There are a number of good reasons supporting an obligation to discuss decisions not to provide futile resuscitation with patients and families, short of reliance upon the patient's right of self-determination.[2] There is no incompatibility between rejecting the patient's right to select futile resuscitation and insisting on the physician's obligation to inform patients about their plan of care, a point apparently missed by some critics of futility judgments. The objection does, however, point to another concern that must be addressed by policy: how to grant authority to physicians to limit futile therapy while encouraging full, honest, and supportive communication.

A third objection made against futility judgments is that the resulting focus on the biomedical aspects of medical interventions will lead to neglect of the worthy social and psychological needs that might be served by biomedically futile interventions. To repeat, a judgment not to provide an intervention always makes implicit assumptions about the proper goals of medicine. The sheer fact that certain needs of patients or families might remain unmet because of a decision not to provide a medical intervention is not a decisive objection against authorizing futility judgments. The truth behind the objection .is that a comprehensive justification for not meeting a demand for treatment requires consideration of all the goals that might be served by the intervention, and not just the narrowly biomedical ones. Good futility policies will encourage that breadth of review.

Finally, the argument has been made that unilateral physician authority over futile resuscitation is unnecessary, because in virtually all cases when physicians would think resuscitation futile, patients and families would agree. Authority over futile treatment therefore offers nothing of benefit, only the opportunity for mischief An equally effective approach to reducing demands for futile treatment is to help physicians to lead better discussions with patients and families about treatment limitation choices.

The difficulty with the objection and the alternative it espouses is that it is extremely difficult for patients and families to make informed, autonomous choices about futile resuscitation. When the only way to authorize a DNR order under hospital policy is by the consent of patients or their representatives, discussions about futile resuscitation are inherently misleading offers of bogus choices, increasing the likelihood that a choice will be made in favor of futile treatment. Adamant demands for futile resuscitation are less likely when the goal of discussion is not to have the patient or family make a choice, but rather to gain their understanding and acceptance of the choice already made and presented by the physician against attempting resuscitation. But creating the context for that sort of discussion requires a policy that grants physicians the authority to make such a decision.

There is still a practical lesson here for futility policies: the policy should incorporate a process of negotiation by which patients and families are invited to accept the futility judgment, since indeed most of the time they will, and premature or unnecessary confrontation can be avoided.

This brief discussion of the ethical rationale for futility judgments has suggested several guidelines that should shape defensible futility policies:

* Policy should not empower the solitary judgment of an attending physician, but should require some level of peer review.

* Policy should require validation from a broad spectrum of opinion in cases that may turn on differences between professional and nonprofessional values.

* Policy should require disclosure and discussion of any DNR decisions, and should encourage rather than inhibit discussion around death, dying, and treatment limitations.

* Policy should not define futility in a narrow manner that discourages consideration of nonbiomedical goals for medical care.

* Policy should attempt to negotiate patient and family acceptance of futility judgments, without requiring or asking for their consent to a DNR order.

The Practical Context: More Lessons

In addition to the cautions that emerge from an analysis of the ethical arguments surrounding the use of futility judgments, there are also those confusions, difficulties, and unintended side-effects that any policy will generate. Consideration of our two-year experience with application of a futility policy will suggest some further rules of thumb for developing sound futility policy.

The first practical problem with futile CPR judgments is a tendency for caregivers to broaden the scope of futile to include interventions other than CPR, or to make inferences from a futility judgment that are not warranted. Once CPR is thought to be futile, physicians may be tempted to withhold scarce resources such as blood products, or expensive diagnostic or treatment interventions such as MRI scanning or renal dialysis, or "marginal" treatments such as admission to an intensive care unit or insertion of a PEG feeding tube. A futile CPR policy can in practice slop over into a futile treatment policy, without due regard for the relevant clinical differences between CPR and other treatment modalities.

A related difficulty with drawing boundaries between the futility of CPR and the potential appropriateness of other interventions is with communicating that distinction to patients or their surrogates. Success here frequently influences whether the futility judgment will be acceptable to the patient or surrogate decisionmaker. The problem here is similar to one that arises commonly in discussions of CPR, where a fear surfaces among patients and families that if they agree to forgo CPR, that means the medical staff will give up on the patient or not try as hard to ameliorate or stabilize the patient's condition. It becomes necessary to provide explicit reassurance that other interventions will be discussed and evaluated separately, on their own merits.

As we noted above, any policy that authorizes a futility judgment should also require that the attending physician inform the patient or the patient's surrogate that CPR is considered futile and will not be attempted, along with the rationale for that judgment. The objective here is to seek the patient's or family's acceptance of that plan, rather than seek their consent or permission for it.

But this vital theoretical distinction proves to be difficult to embody in practice. There are well-entrenched habits of communication, linked to the consent approach to DNR, that need to be overcome or broadened with a larger repertoire. Even in cases where the physician has made a sound prior determination of futility, when she gets face-to-face with the family, she will often revert to the language of consent by faithfully presenting the dismal facts of prognosis and then asking the family what they would like done. This is, after all, the habitual way in which nontreatment decisions are discussed. It may also seem to be less "threatening" or "confrontational" than directly asserting any claims of medical authority. Such an apparently more benign approach, however, is a trap that gets sprung when the family takes up the invitation to make the decision themselves, and makes "the wrong one" by opting for futile resuscitation. They are understandably angry and confused when the staff responds with aggressive efforts to persuade them to change their mind, which the family readily interprets as an attempt to take back the offer.

The aftermath frequently produces another of the practical difficulties we've found with the application of a futility policy. Frustrated by the family's persistence in making the wrong choice, physicians will turn to the futility policy and the authority it grants to physician judgments as a trump card that is played as an ultimatum. Rather than being used in a manner that facilitates family understanding and acceptance of the futility of CPR, the policy becomes just one more ratchet in an escalating confrontation. Any subsequent ethics consultation that arises becomes doubly difficult, less likely to succeed in winning the family's confidence in the original futility judgment.

Finally, our experience has shown that implementing a futility policy also involves recognizing that the delivery of medical care within a hospital is a public event, and the perception that it is wrong to take the "choice" of attempting futile CPR away from the patient or the surrogate is the equivalent of received moral opinion. Any shift of authority away from the family or patient may bring to the surface questions among hospital staff about whether the futility judgment will be used in an inconsistent and biased way. A direct expression of the concern we have encountered is the accusation that some vulnerable minority patients will have the futility judgment made unilaterally by a physician, but other more socially powerful or acceptable patients with the same medical condition will be given the choice of CPR.

The practical dangers of futility policies need to be recognized by addressing their causes through several different approaches. These will establish some further parameters for development of a defensible futility policy.

1. The implementation of a futility policy requires a systemwide plan for educating physicians as well as other careproviders involved in the clinical setting.

Education should involve not only formal presentations concerning the elements of the policy, but also workshops, simulated interviews, or other formats directed to reforming the consent-based habits of communication just discussed, and to providing effective and honest strategies for communication about death and dying, and not just about the futility judgment itself.

Another focus for these educational efforts must be to help nursing and other care providers understand the ethical rationale and the medical basis for futility judgments. Nurses, therapists, and social workers are often the first line of counselors sought by patients and families as they process their understanding of die medical facts as well as their feelings in circumstances of catastrophic and terminal illness. The staff's understanding of the policy and the basis for its application is important not only to avoid working at cross purposes with attending physicians. It is also necessary to winning the staffs confidence in the fairness of the policy's application to patients. This objective can be well served by the use of interdisciplinary educational activities that not only provide information about the rationale for futility judgments and the conditions under which the judgment may be made, but also offer continuing open dialogue with all who are intimately involved in the care of patients.

2. A futility policy should be embedded within a larger policy and process for making decisions about limitation of treatment, which will include some specific elements.

First, a policy must offer multiple avenues for decisions about limitations of care that do not unduly restrict the freedom of patients, families, and care providers to make such decisions based on considerations of both prior patient preferences and of the patient's best interest. The availability of these avenues will help take the pressure off using the futility policy as an all-purpose treatment limitation tool, and reduce the temptation to draw unwarranted inferences from the DNR decision to other limitations of treatment.

Second, a futility policy will function best in institutions with strong and broadly representative ethics. committees involved in providing clinical ethics consultation. Using the committee to affirm or reject support for futility judgments in contested cases can help win staff confidence in the process. For the same reason, ethics consultation or other forms of committee assistance should be available to all caregivers, patients, and families, and not only physicians.

In addition, clinically active members of an ethics committee can provide informal consultation to assist physicians in counseling patients or surrogates about the rationale for the futility judgment, to provide communication strategies for the treatment team, and to help distinguish cases of futile CPR from other circumstances when a DNR order might be justified by a patient's or surrogate's judgment about a particular quality of life.[3]

With these ethical and practical cautions in mind, we can work toward developing a sound futility policy.

Defining Futility

When setting out to develop a hospital policy regarding futile treatment, it is tempting to think that the first, essential task is to formulate an explicit operational definition of futility that will serve to identify unambiguously those patients to whom the policy should apply. We think that this impulse is mistaken, because it runs afoul of the principles just established.

There are several prominent examples of this approach. Lawrence Schneiderman, Nancy Jecker, and Albert Jonsen propose both a quantitative and a qualitative standard of futility, which set independent thresholds for identifying futile procedures. Quantitatively, a procedure like CPR is futile if it has less than a 1 percent probability of succeeding, p [less than or equal to] 0.05. Qualitatively, a procedure is futile if it "merely preserves permanent unconsciousness or ... fails to end total dependence on intensive medical care."[4]

Donald Murphy and Thomas Finucane define several categories of patients who should not be provided "futile" CPR.[5] The major rationale for their categories--which range from bedfast patients with metastatic cancer, to patients with dementia requiring longterm care, to patients with coma lasting longer than forty-eight hours--is cost control. Both the predicted likelihood of success and the quality of the supporting evidence offered vary significantly among categories.

Policies that define futile by reference to a benchmark probability of success fail our standards in several respects. First, they create the illusion of specificity where none is possible, and warrant superficial medical evaluations. If Mrs. Jones has a diagnosis associated with less than 1 percent chance of survival, then such a policy permits the physician to pigeonhole her case as one of "futile" CPR, without any consideration of her individual clinical circumstances and whether they provide reasons for thinking that she may be an exception to the necessarily crude profile that generated the statistic. It is not difficult, for example, to find studies suggesting that the success rate for CPR in patients with metastatic cancer is close to zero.[6] On the other hand, one can find other studies suggesting that a simple diagnostic category like "cancer" may hide numerous clinical complexities that are relevant to a thorough prognostic evaluation.[7] Accordingly, in our experience few thoughtful and experienced clinicians are satisfied with a medical judgment based simply on any one diagnostic or other medical category.

Of course, one might try to respond to this objection by requiring that the prognosis of a less than 1 percent chance be based on a thorough evaluation of each individual case. But then the judgment of futility will not be wholly based in any quantifiable set of prior cases, since one will not be able to identify the previous 100 cases "just like this one." "Failure to survive in the last 100 cases of metastatic cancer" is then only relevant to the judgment of futility of CPR, it is not definitive of it.

A second difficulty created by reliance on probabilistic definitions of futile is that the probability of success is pegged to a narrowly biomedical goal--the extension of biological life for the patient. Typically, no allowance is made for the possibility that other goals might be served in special, individual circumstances that could justify attempts at resuscitation. An example from our experience was a ninety-year-old man with renal failure, ventilator-dependent adult respiratory distress syndrome, hyperosmolar coma, and other conditions that justified the medical judgment that a CPR attempt would be futile; this patient would not survive to leave the hospital. It was more difficult to say whether a CPR attempt might briefly restore pulse and blood pressure. This limited possibility was a significant one for his family, given their hope that the patient's sister would be able to arrive from out of state before he died. They convinced us to honor their request to attempt resuscitation for the sake of that nonbiomedical goal, which would not be at stake in all medically similar cases.

Definitions of futile err too much in the other direction when the definition is tied to specific quality-of-life judgments. Such judgments make assumptions about the proper goals of medicine that have not been validated through broad and open public dialogue. Why is it "futile," for instance, to provide resuscitation or other life-prolonging intervention for someone who is permanently unconscious? Assuming the patient is not suffering from other medical conditions that would mitigate against it, resuscitation of such a patient could well be successful at extending the patient's life. Extending a patient's life, even one of such attenuated quality, is most certainly among the traditional goals of medicine. Without the backdrop of such a tradition, there would have been no need to make any ethical or legal arguments on behalf of terminally ill patients' rights to limit life-prolonging treatments. A policy that defines futile by reference to permanent unconsciousness, then, departs from this tradition and attempts to change it by fiat. It is a departure, however, that at this stage in our history does not have the clear warrant of broad social agreement. Witness both the Missouri and U.S. Supreme Court reasoning in the Cruzan case,[8] the state advance directive statutes that explicitly exclude PVS from among the conditions within the scope of the act,[9] and court rulings in the Helga Wanglie[10] and Baby K cases,[11] all of which assume that being permanently unconscious is not "as good as dead." These considerations are not philosophical ones, and are not intended as such. Perhaps a case can be made that extended life serves no genuine interest of PVS patients. But until those philosophical arguments have succeeded in expanding public consensus on the question, they are not relevant to the justification of a futility policy, which requires broad public warrant for the values that underly it In a democratic polity, the imperialism of moral philosophers is hardly less objectionable than the imperialism of physicians.

The other objection to quality-of-life definitions of futile is that they may rely on dangerous generalizations. What is it about "total dependence on intensive medical care" that makes resuscitation in all such cases futile? Of course, generally speaking, these patients will be moribund and have overwhelming medical problems, such as multiple organ failure, which will in turn make a successful resuscitation highly unlikely. But exceptions are possible. Sometimes, for example, patients are de facto dependent on intensive care because of the lack of alternative settings for the delivery of treatments such as ventilator support. This is once again the danger in definitions of which we complained earlier: reliance on any simple categories of "futile" care encourages superficial evaluations.

Policies such as Murphy's would justify quality-of-life expansions of the meaning of futile in the name of cost containment. But first of all, any policy that defines futile to mean "not costworthy" has distorted the plain meaning of futile beyond all recognition. Of course, any intervention that is futile for achieving any worthy goals whatever is not costworthy by definition. But the inference does not run in the other direction. Many interventions are not costworthy because they consume too many resources relative to their benefit, not because they offer no benefits at all. Linking futility with cost containment also fundamentally alters the moral basis for the caregivers' claims of authority over "futile" interventions. That authority would no longer be exercised solely on behalf of professional moral integrity, focused on the obligation to the patient's welfare, but will instead be an exercise of social agency, focused on the welfare of the aggregate of patients. This would in turn poison any efforts at gaining patient or family acceptance of the "futility" judgment. So long as the physician is acting out of professional integrity, she has no apparent motive for misrepresenting the real chances for success. When she's acting as a social agent, she's lost that credibility. A sound futility policy should encourage, rather than obstruct, trust and mutual agreement about the wisdom of forgoing CPR.

Patient-Centered Definitions

Some policy proposals attempt to avoid conflict with patient or family wishes by defining futile subjectively, including some reference to the patient's expressed goals. On this approach, futility should in some part be judged relative to the patient's values: "Resuscitative efforts should be considered futile if they cannot be expected either to restore cardiac or respiratory function to the patient or to achieve the expressed goals of the informed patient" (AMA Council on Ethical and Judicial Affairs,[12] following John Lantos and colleagues.[13]) Nevertheless, "In the unusual circumstance when efforts to resuscitate are judged by the treating physician to be futile, even if previously requested by the patient, CPR may be withheld" (emphasis theirs).

These definitions can't have it both ways. One can't give the patient all the power to determine the goals of treatment, and leave the physician any power to refuse a requested intervention. If the intervention is being demanded by the patient, then it necessarily serves one of his goal--satisfaction of his demand. The physician might reason that the patient's demand is motivated by unrealistic expectations, but then he will be making judgments about the patient's values, namely, that because the patient's demand is unrealistic, it is not the duty of the physician to satisfy it. Despite the hope of such definitions, the possibility of conflict with the patient's values is always there when the physician judges what level of probability determines that CPR "cannot be expected" to restore function, or when she judges whether the use of a ventilator counts as "restoring" respiratory function. Faith in any value-free "physiological" concept of futility is misplaced.

A related, widely quoted example comes from the Santa Monica Hospital Medical Center, which defines "futile care" as "any clinical circumstance in which the doctor and his consultants, consistent with the available medical literature, conclude that further treatment (except comfort care) cannot, within a reasonable possibility, cure, ameliorate, improve, or restore a quality of life that would be satisfactory to the patient." The following examples are then given: irreversible coma or persistent vegetative state; terminal illness when the application of life-sustaining procedure would serve only to prolong the moment of death artificially; permanent dependence on ICU care.[14] A disjointed policy like this can provide no unambivalent guidance regarding what will count as "futile" care. On the one hand, the doctor is given the authority to make notoriously value-laden judgments regarding what will count as "reasonable," "cure," "ameliorate," "terminal," and so on; and on the other, the patient is left with complete authority over what quality of life is worth serving. Is life-sustaining care "futile" for those patients who might maintain PVS to be a satisfactory quality of life? Policies like Santa Monica's give us two different answers at once.

All of the considerations we've been urging in this section argue against any attempt to base a futility policy on some concrete definition of futility. Any such definition by itself is bound to fail as the basis for defensible judgments of when a physician or hospital can refuse to provide demanded treatment. The defensibility of such judgments must ultimately rest on the existence of a consensus within the profession and between the profession and the public about the proper goals and acceptable means for the moral practice of medicine. A consensus can only be developed, it can't be dictated. Moreover, the test of any consensus on a definition of futility is whether the consensus survives the interpretation and application of the definition to contested cases. Is it agreed that CPR is "futile" in all cases of advanced metastatic cancer? We can only see how we respond to the application of this principle to the real people who, one by one, make up those cases to which our policy on futility is to apply.

A workable futility policy, therefore, cannot be a policy that imposes a definition on practice. It must instead be a policy that creates a process for negotiating and developing, case by case, a consensus on the rightful limits of patients' demands for treatment.

Proposal for a Model Policy

We would like to conclude with an outline of a model policy, which addresses the principles and problems we have identified as significant aspects of a defensible futility policy.

I. Resuscitation will be attempted for all patients in cardiopulmonary arrest unless:

A. The patient is brain-dead and declared legally dead, as documented in the progress notes in accordance with approved hospital protocol;

This element is important because it sets out the paradigm case of futile resuscitation and offers the basis for analogies to some other situations for example, other cases of irreversible unconsciousness combined with imminent cardiac death. Of course, some hospitals may have some such principle already incorporated in a brain death policy; but there is an advantage to reiterating it within the context of a futility policy, so that it serves as one clinical anchor for interpreting the meaning of futility.

or B. The patient or the patient's qualified representative has requested a Do-Not-Resuscitate order, documented in the progress notes in accordance with approved hospital procedures;

This option assumes that the futility policy is part of a broader policy concerning the right to refuse CPR or other medical treatment, and recognizing the authority of surrogate decisionmakers. It is especially important that this larger policy encourage communication between physicians and patients or surrogates concerning the overall disease process, treatment and nontreatment alternatives, and prognosis for survival or for an acceptable quality of life. As we've discussed, there must be multiple avenues available for limiting treatment besides appeal to a futility policy, in order to reduce the temptation to expand the concept into an all-purpose justification, as well as to recognize that the patient's authority over refusals of treatment is based solely on his or her own values and purposes.

or C. There has been a determination, following the process described in Section II, that attempted resuscitation would be futile or harmful.

II. Futile or harmful attempted resuscitation.

A. Attempted resuscitation is futile when it provides no meaningful possibility of extended life or other benefit for the patient. Attempted resuscitation is harmful when the additional suffering or other harm injected on the patient is grossly disproportionate to any possibility of benefit.

For reasons that we have explained, no attempt should be made to further specify what futile or harmful resuscitation refers to. That specification is given within the context of a particular patient's clinical circumstances, and from the perspective of the attending physician's evaluation of the patient's diagnosis and prognosis and the physician's individualized understanding of the patient's values, needs, and preferences. For purposes of policy, any significant possibility of extending life counts as a benefit, for reasons discussed earlier. Thus, the PVS patient is not per se a case of futile resuscitation. Moreover, possible benefits to the patient other than extended life require consideration--one of the chief reasons that judgments of futility must be individualized rather than defined a priori.

B. The preliminary judgment of whether attempted resuscitation would be either futile or harmful is made by the attending physician, and confirmed in the progress notes by consultation with an appropriate specialist.

This helps to guard against hasty or controversial medical judgments, and confirms some minimal level of professional consensus about futility of care. It also provides public notice to the community of caregivers, so that they become aware of the determination and its justification in a timely way. This offers an opportunity to ask questions, express disagreement, or seek ethics committee consultation or advice. The authority to initiate the judgment of futility rests entirely with the attending physician, the person with primary ethical and legal responsibility for the patient's welfare.

1. The attending physician will inform

the competent patient, or the incompetent

patient's representative, that

he or she will not attempt resuscitation,

and will explain the reasons for the

physician's judgment that attempted

resuscitation would be either futile or

harmful. The physician will seek the

patient's or representative's acceptance

of this course of action.

The first step is to pursue communication and accommodation, not confrontation. For the reasons mentioned earlier policy must require that patients or families be informed of the plan of care. In our experience, almost all cases are resolved at this stage. Either everyone comes to agree that resuscitation should not be attempted, or the physician will learn of social, psychological, or medical considerations that lead to a revised judgment.

2. If the patient is incompetent and no

legal or natural representative can be

identified, the case will be brought to

the ethics committee consultation team

for disposition under Section D.

Unwarranted or controversial expansions of the futility judgment are most likely for patients who have no family or other concerned persons who might protest. Ethics consultation review is necessary both to protect these vulnerable patients and to maintain institutional control over the way in which the futility concept is being interpreted in practice.

C. If the patient or representative agrees that a futile or harmful resuscitation should not be attempted, then the physician should document the substance of the discussion and its resolution in the medical record. A DNR order may then be put into effect without any formal, signed consent from patient or family.

Other decisions about limitations of treatment will normally require more extensive documentation, including a signed consent from the patient or representative. Relaxing this requirement in cases where there is agreement about the futility of CPR serves to emphasize the difference between seeking acceptance and seeking permission. This in turn reduces the temptation to fall into the habitual language of consent, with its attendant dangers and confusions. As we have mentioned, it will also be necessary to reform habits of communicating by means of education and training, and not just policy.

D. If the patient or family does not agree with the physician's judgment, or if the incompetent patient has no representative, then the attending physician will seek the assistance of the ethics committee consultation team. The Purposes of the consultation are: (1) to evaluate the physician's judgment of futility to determine whether it is within the scope of the institution's policy; and (2) when necessary, to assist with continuing efforts to enhance communication and negotiate mutual understanding.

Required ethics consultation here helps to maintain a relatively narrow conception of futility that is in keeping with the policy's intentions, putting a check on the tendency to expand the notion in unwarranted directions, particularly for vulnerable patients. It can also help to resolve those cases where patient or family disagreement with the physician's futility judgment is the product of misunderstanding or botched communication, rather than fundamental value differences.

E. If ethics consultation confirms the physician's judgment, and family or patient disagreement persists, the medical director will attempt to identify another physician within the hospital willing to assume care, including provision of resuscitation, and will transfer care to that physician. If no such physician can be identified within the hospital, and if transfer would not jeopardize the patient medically, the medical director will attempt to identify another health care facility willing to assume care of the patient, and arrange for transfer

This step protects the professional and ethical integrity of the attending physician or institution, while accommodating the demands of the patient or family. Push shouldn't come to shove when it can be avoided. It also in effect imposes a requirement to consult with a broader community of professional judgment and values in cases of conflict, rather than overriding patient or family demands merely on the basis of individual or local idiosyncrasies. That broader community will either nullify the original futility judgment or ratify it.

F. If no alternative care provider can be identified, or if the patient or representative refuses to accept the transfer of care, then the case will be presented to the ethics committee, which, in consultation with legal counsel and hospital administration, will determine the course of action to be taken on behalf of the hospital

This is the second level at which the physician's determination that resuscitation should not be attempted is put to the test of wider community opinion, although here the emphasis will most likely be on the inherently value-laden judgments concerning the "reasonableness" of the chance of success, and the selection of worthy goals of medicine, rather than on the factual basis of the medical prognosis. Since these judgments may be used to justify overriding the demands of families or patients, they require the validation of community discussion and consensus, not the exercise of any one individual's expertise. Obviously, the credibility of the ethics committee's judgment will depend on its makeup, in particular on how well the lay patient population is represented. Moreover, the institutional representatives will help assure that a respectful eye is kept on the potential judgment of wider legal and public opinion.

Options to be considered include:

1. To ratify the physician's and consultation

team's judgment that resuscitation

should not be attempted because

it is futile or harmful, and coordinate

further attempts to persuade the

patient or representative to agree width

the judgment.

2. To ratify the physician's and consultation

team's judgment that resuscitation

should not be attempted because

it is futile or harmful, and enter

a DNR order in the progress notes,

cosigned by the attending physician,

the chairperson of the ethics committee,

and appropriate institutional authority,

such as a director of medical affairs.

3. To ratify the physician's and consultation

team's judgment that resuscitation

should not be attempted because

it is futile or harmful and seek

custody of the patient through the probate

court for the purpose of entering a

DNR order:

Which option is chosen will depend on the circumstances; for example, for the incompetent patient with no identifiable representative, option 2 makes sense. For the incompetent patient whose court-appointed guardian is insisting on resuscitation, option 3 may be necessary (one reason the hospital's legal counsel would need to be involved at this stage). These don't exhaust the possibilities, of course. At least one remains:

4. To reject the physician's and consultation

team's judgment that resuscitation

should not be attempted because

it is futile or harmful.

If the attending physician remained adamant in his or her original conviction, this outcome might require the physician to sign off the case. Obviously, in that circumstance, the institution would need to have some provision for transferring care, probably to a physician within the medical administration of the institution.

III. Attending physicians, house staff, or nursing staff who follow a DNR order that has been properly entered in the progress notes in accordance width the above provision are acting in conformity with hospital policy.

This provides some possible legal protection to physicians and nurses who do not resuscitate a patient under the provisions of the hospital policy. Withholding such protection also puts pressure on the physician whose judgment has not been accepted by the community, and discourages physicians from trying to act in secrecy, or unilaterally beyond the bounds of policy.

Good DNR Decisions

A hospital futility policy cannot simply endorse the principle that physicians retain authority over futile resuscitation, or be content with a simple operational definition. Consideration of the ethical limits and dangers of futility determinations and of the professional and institutional contexts in which those determinations are made will demand much more than that. Careful procedural safeguards, supplementary policies regarding other limitations of treatment, provision of education and training to caregivers, the availability of effective ethics consultation, and a well-functioning ethics committee are all essential ingredients for an effective and trustworthy policy.

A policy that meets these demands, like the model we have proposed, will be conservative and cautious in conflicts, but liberal and permissive in reviewing agreed-upon plans of care. The best test of the policy's effectiveness will not be in how forcefully it can impose the individual physician's will on patients and families. More important will be how effectively it has reduced these recalcirant conflicts, by realigning the ethics of resuscitation decisions and infusing more honesty into DNR discussions.

References

[1.] Tom Tomlinson and Howard Brody, "Futility and the Ethics of Resuscitation," JAMA 264 (1990): 1276-80. [2.] Stuart J. Youngner, "Who Defines Futility?" JAMA 260 (1988): 2094-95. [3.] Tom Tomlinson and Howard Brody, "Ethics and Communication in DNR Orders," NEJM 318 (1988): 43-46. [4.] Lawrence J. Schneiderman, Nancy S. Jecker, and Albert R. Jonsen, "Medical Futility: Its Meaning and Ethical Implications," Annals of Internal Medicine 112 (1990): 949-54, at 952. [5.] Donald J. Murphy and Thomas E. Finucane, 'New Do-Not-Resuscitate Policies: A First Step in Cost Control,' Archives of Internal Medicine 153 (1993): 164148. [6.] Mark H. Ebell, "Prearrest Predictors of Survival Following In-Hospital Cardio-pulmonary Resuscitation: A Meta-Analysis," Journal of Family Practice 34 (1992): 551-58. [7.] Mark Rosenberg et al., "Results of Cardiopulmonary Resuscitation: Failure to Predict Survival in Two Community Hospitals," Archives of Internal Medicine 153 (1993): 1370-75. [8.] See George J. Annas, "Nancy Cruzan and the Right to Die," NEJM 323 (1990): 670-73; Ronald Dworkin, "The Right to Death," The New York Review of Books, 31 january 1991, pp. 14-17. [9.] See David Orentlicher, "Advance Medical Directives," JAMA 263 (1990): 2365-67. [10.] Steven H. Miles, "Informed Demand for `Non-Neneficial' Medical Treatment," NEJM 325 (1991): 512-15. [11.] George J. Annas, "Asking the Courts to Set the Standard of Emergency Care: The Case of Baby K," NEJM 330 (1994):1542-45. [12.] Council on Ethical and Judicial Affairs, "Guidelines for the Appropriate Use of Do-Not-Resuscitate Orders," JAMA 265 (1991):1868-71. [13.] John D. Lantos et al., "The Illusion of Futility in Clinical Practice," American Journal of Medicine 87 (1989): 81-84. [14.] Santa Monica Hospital Medical Center, "Futile Care Guidelines," supplement, Medical Ethics Advisor, October 1993, p.9.

Tom Tomlinson is an associate professor at the Center for Ethics and Humanities in the Life Sciences, Michigan State University, East Lansing Diane Czlonka is a clinical East specialist at Sinai Hospital of Detroit.

Tom Tomlinson and Diane Czlonka, "Futility and Hospital Policy," Hastings Center Report 25, no. 3 (1995):28-35.
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Author:Tomlinson, Tom; Czlonka, Diane
Publication:The Hastings Center Report
Date:May 1, 1995
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