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Is consent useful when resuscitation isn't?

Our increasing awareness that limitations of human knowledge, resources, and ingenuity impose finite horizons on medicine's ability to ward off disease, disability, and death has forced us to acknowledge that we must either limit medical interventions on a societal and individual basis or bankrupt ourselves. [1] Attaining a consensus about limiting treatment requires educating patients and society to understand that expectations once held about medicine no longer apply, or do so less categorically. Given our faith in medicine and its impact on personal well-being, adjusting ourselves to the realities of limited medical options will generate anxiety and a crisis in confidence, which will make shifting expectations even harder. How well we make this adjustment depends on how we make these decisions. If they occur or are perceived to occur in ways that generate suspicion and distrust, the ultimate decisions, no matter how fair or necessary they are, will prove unacceptable, and the process become paralyzed, protracted, fragmented, and counter-productive. We cannot avoid the effort reorientation involves or the disappointment unmet expectations create, but we can manage these difficulties and enhance the prospects for responsible deliberation by carefully framing the decisionmaking dialogue.

How we structure that dialogue depends on how we define consent, since that will determine both the character of the deliberation and the kind and quality of consensus we ultimately obtain. We need the model of consent most likely to insure that meaningful communication occurs, yet it must also be closely connected to our most fundamental social values as decisions to withhold treatment become more commonplace. [2]

In truth, decisions to withhold treatment are and always have been ubiquitous and frequent. They occur whenever a physician weighs and ultimately decides against offering or recommending that a patient be admitted, tested, treated, or referred. Such decisions are not necessarily invidious and often represent prudent restraint. Doctors are expected to use the professional expertise derived from their education, training, and experience to make judgments about what they believe should or should not be done in a given situation.

What is troublesome about a decision to withhold treatment is how it occurs. Because it is low-profile in nature, it does not have the inherent visibility that triggers consent when intervening or withdrawing are at issue. Thus, the fact that it has occurred may be known only to the doctor and those colleagues involved in the patient's care. Although affected by it, the patient may not know how, why, or even that the decision was made. Whether the proper criteria were correctly applied to a particular decision is unlikely to be examined beyond professional circles, which makes withholding especially problematic in terms of the values consent is supposed to serve.

Given the special nature of decisions to withhold treatment, we should not assume that the model of consent developed to provide accountability in an era of therapeutic relentlessness will do the job as medicine begins to rein itself in. Because greater justification is required to withhold than to withdraw treatment, [3] finding the right way to make these decisions becomes especially critical as we adjust individual and social expectations to the new realities setting limits creates. Theoretically, the order not to resuscitate a patient (DNR order) defies withholding's usual pattern. This decision requires express authorization and documentation reflecting the consent of the patient or the patient's surrogate, or, as in the case of emergency medical services, a physician's permission to withhold resuscitation. Because resuscitation, commonly known as CPR, is the expected response to sudden death, if it is not provided someone has to account for why.

Articles discussing consent to DNR orders have exposed thought processes usually confined to professional enclaves. This provides an opportunity to consider how such decisions ought to be made in light of the values consent serves. Due to CPR's ubiquitous, symbolic, and momentous nature--each of us may well face a decision about being resuscitated or allowed to die--how we decide to limit resuscitation is critical to developing a model of consent suited to making other decisions about limiting treatment.

CPR: In Like a Lion, Out Like a Lamb?

It is difficult now to imagine the enormous impact of the introduction of CPR. Catastrophic trauma, life-threatening surgery, and failed hearts no longer meant certain death. Medicine could reverse death's surest sign--the heart that had stopped beating. With its promise of life after death, CPR transformed medicine, society, and our expectations about mortality.

Society affirmed CPR's significance by declaring it an emergency procedure, which exempted it from consent prior to use. Public perceptions about CPR came largely from the media, which usually portrayed it and medicine in glowing, heroic terms. CPR rapidly proliferated into ICUs, general wards, and even the public domain, as emergency medical teams, police officers, firefighters, lifeguards, and concerned citizens learned to provide basic life support in the event of a cardiac arrest.

The emergency exception eventually evolved into presumed consent to CPR, making it society's standing order against death. This shielded CPR from patient and public scrutiny, hid its realities from all but those involved in administering or receiving it, fostered its indiscriminate use, and excused physicians from seeking anything other than grateful ratification when it worked or heartfelt solace when it did not.

Presumed consent freed physicians from disclosing that CPR's success, however defined, depends on a number of factors. The patient's condition and the presence of pathology are important determinants. Other noteworthy factors include: where the arrest occurs (in an ICU or elsewhere, for example); the nature of the arrest; whether the arrest is witnessed or not; the time elapsed between arrest and the commencement of resuscitative measures; the availability of the equipment and drugs needed to provide advanced life-support' whether the equipment works; how long resuscitative measures are employed; and the training, skill, experience, and collaborative ability of the code team. [4] Although some patients would have found such information germane to a decision about submitting to CPR and its sequelae, presumed consent obviated the need to secure real consent. Even where an arrest was "not unexpected," physicians who were unwilling or unable to talk to patients about resuscitation needed only to wait for an "emergency" to materialize in order to act. Presumed consent to CPR was medicine's license to intervene at will.

As time and experience brought balanced insight into CPR's benefits and limitations, perceptions about its life-saving powers yielded to the awareness that its effectiveness could no longer be categorically presumed nor its burdensomeness denied. Discussions about limiting CPR through DNR orders found their way into the literature and the courts.

Yet fast upon recognizing the need to make decisions about forgoing this not always beneficial treatment came attempts to exempt physicians from obtaining consent to a DNR order. Some contended that because consent prevents uninvited contact, there was no duty to secure consent not to commit a battery, a view that has been rejected. [5] Recent discussions concede that DNR orders require consent, but argue that there is no duty to secure a patient's consent when CPR is medically futile; when it would be futile to attempt resuscitation, consent to a DNR order may be presumed.

One need only translate presumed consent into its oxymoronic synonym--unilateral consent--to appreciate how radically it departs from the goal of collaborative decisionmaking. Although a DNR order is about doing nothing, it's not about nothing; nor is it about not doing something that no sensible physician would ever do. It reflects a physician's considered judgment that a patient is going to die and reverses society's standing order to preserve life against death. It has profound social, personal, and professional ramifications. To determine whether consent is useless when resuscitation is futile, we need to examine consent and futility more closely.

An Exercise in Futility

The argument that when CPR is futile consent is pointless rests on two prongs. [6] The first starts with the premise that what distinguishes physicians is the professional expertise that gives them the exclusive ability to make medical judgments. A physician's professional integrity lies in the ability to recognize and integrate what is known about a patient's medical condition with what medicine has to offer, and to exercise his or her best judgment about how or whether to proceed with treatment. That integrity and the value we place on such judgment are meaningless if patients may freely ignore or override it out of fear, irrationality, or ignorance. Because only physicians can evaluate whether an intervention is medically futile, they must have unilateral authority to make and act on judgments about matters that fall exclusively within the domain of their expertise.

The second prong analyzes futility according to the patient's autonomy interest. Without discounting autonomy's value, it argues that this interest is not unlimited. Patients may not demand treatment, especially treatment that would accomplish nothing. Similarly, physicians have no duty to provide and a patient may not successfully sue for the failure to provide futile treatment. Patient autonomy and consent are irrelevant to a decision about CPR when it offers no potential benefit.

Moreover, involving patients in deliberations about useless treatment confuses and upsets them. Some, believing that a discussion about CPR implies that it must be of some benefit (otherwise, why mention it?) will ask or insist that it be administered. Others will find such discussions disturbing because their hopeless condition has left them emotionally drained and vulnerable; they will think that seeking consent is cruel or demand CPR out of desperate fear. Instead of elevating form over substance, we should acknowledge that a patient's right to choose ends where futility begins.

These arguments seem so sensible, internally consistent, and authoritatively supported that their conclusion appears ineluctable. They seem to strike a reasonable balance between patient and physician autonomy and accommodate society's legitimate interest in not wasting resources. To suggest that decisions about futile treatment require consent sounds ludicrous; doctors have better things to do than discuss pointless therapy. Patient autonomy needs sensible limits, and authorizing doctors to enter DNR orders unilaterally when CPR is futile seems legally and ethically sound.

The apparent soundness of this conclusion evaporates upon close examination. In reality the futility exception is a dishonest solution to the tragic choice that decisions to limit treatment represent. It purports to respect, but in fact departs from the fundamental values consent is intended to serve. It will not generate the conversation we need if we are to attain a consensus about limiting treatment; nor will it make physicians sensitive in their dealings with patients, especially dying patients. It promotes a model of consent that is antithetical to setting limits in a democratic, caring manner.

The argument that physician expertise at judging futility justifies unilaterally entered DNR orders rests on several assumptions: agreement on what resuscitation means; a definition of what constitutes "futile" (and successful) treatment; concurrence that physicians can make such judgments accurately, reliably, and consistently; and agreement on what a DNR order means. Before empowering physicians to decide these matters unilaterally, we should analyze each of these assumptions.

The global pronouncement that resuscitation won't work obscures its subtle realities. Many people who stereotypically imagine resuscitation as a chest-thumping, bone-crushing, electrifying experience would be shocked to learn that depending on the clinical situation it defines a range of interventions. [7] Less invasive measures include drug support and fluid resuscitation. Thus, when a physician says that resuscitation is futile we cannot know what is meant, and will remain ignorant if nothing more is said. Even were we to agree that compression and defibrillation would be futile, pharmacological support with proper monitoring might be useful.

Implicit in the judgment that CPR is medically futile is a definition of medical success. Even assuming that physicians can predict whose CPR will succeed and whose won't, how they define success and whether their definition comports with the patient's, the family's, or the larger society's are legitimate questions. Presumed consent presupposes that only the physician's perspective matters.

Even if a physician's judgment that CPR won't work is sound and comports with the patient's perspective (difficult to accomplish if the patient is not involved in the decision), why it won't is significant, especially because CPR's success can depend on factors other than the patient's physiology or pathology. It's one thing to conclude that nothing more can be done, and something else to believe that we can do nothing more for you here. If patients might be better off elsewhere, presumed consent hides knowledge about that option from them.

The belief that physicians know futility when they see it is an illusion. [8] There is no set definition of medical futility, only suggested parameters that vary widely. Even if medicine could define medical futility, trusting physicians to make unilateral judgments assumes that they know what the definition is and can apply it accurately, consistently, and reliably. Medical judgment involves recognizing and integrating relevant data correctly, an uncertain process that inevitably involves false positives and negatives, erroneous judgments, and differing interpretations. The same doctor may view data about prognostically indistinguishable patients differently, and different doctors, depending on their specialty and experience, may assess the same patient's chances differently. [9] Presumed consent assumes a world of medical certainty that does not exist.

Moreover, futility is not some objective, value-free fact that jumps up and announces "Here I am." It is a concept, that is, a way of judging facts. We are concerned about futility precisely because we value not wasting resources. Whether it is futile "in fact" to attempt to keep someone alive may depend on whether that person is a potential organ donor, a potentially viable fetus, or worth salving for some socially or otherwise informed reason. Presumed consent assumes that in making medical decisions we can separate observer from observed, facts from values, and individuals from context, an assumption that is doubtful at best. [10] Among themselves physicians do not uniformly understand what a DNR order connotes, [11] putting aside whether their understanding agrees with the patient's. Some physicians equate a DNR order with a decision to withhold or withdraw other and sometimes all means of life support. A DNR order does not and was never meant to concern itself with anything other than resuscitative measures, but the fact that not all physicians know this, or that some who do nonetheless regard or treat a DNR order as authority to forgo other treatment argues against one-sided consent.

Finally, even if physicians could exercise judgment with the certainty they claim, that would not mean that they should make such decisions unilaterally. After all, if physicians cannot avoid the consent process where a treatment is "clearly" beneficial, why should they do so when it is "clearly" futile? And although a physician may not be held liable for failing to provide futile care, whether he or she actually exercised proper judgment in a given case is a question a court may decide. [12] A physician whose futility defense might ultimately prevail against the claim that CPR was wrongfully withheld must nonetheless defend against it, which should make even the most confident physician uneasy about presumed consent.

The second prong of the argument fares no better than the first. Its essential assumption--that because autonomy triggers the duty to secure consent, the absence of an autonomy interest excuses it--puts the ethical cart before the horse. Autonomy is important, but it is neither the sole nor the primary principle of medical ethics. It is derivative of and subordinate to the overarching obligation that we show respect for persons. [13] Respecting autonomy is simply one way of respecting persons. The futility exception ends its analysis where it ought to begin. By not asking whether excluding patients from deliberations about their fate demonstrates respect for them, presumed consent mistakenly equates ignoring persons with respecting them.

Presumed consent gives autonomy undue prominence because it erroneously assumes that autonomy is all there is to consent. Yet consent concerns itself with matters beyond autonomy. Among them: respecting human dignity; promoting rational decisionmaking; encouraging professional self-scrutiny; avoiding deceit and coercion; and educating the public. [14] Under this view of consent, futility looks different.

Given the variability, uncertainty, and biases that influence the physician, talking with patients forces a doctor to get clear on what lies beneath the judgment that resuscitation would be futile before giving this news to the person to whom it means the most. This fosters professional self-scrutiny and helps assure that the determination that CPR is medically futile does not become a sterilized way of unilaterally classifying patients as "pointless to treat," that is, not worth treating.

Presumed consent thwarts the legitimate goal of avoiding deceit and coercion. Unless physicians explain futility to patients we cannot determine if they do so accurately, deceptively, or manipulatively. [15] Imposing on patients consequences they have not assumed is a form of coercion. When what the patient believes and what the chart denotes do not reflect one another and the staff must act out the charade of hiding from the patient how close death is, deceit occurs.

Rational decisionmaking is a process of shared understanding and collaborative planning. It is not irrational to give patients the opportunity to agree with the assessment that CPR is futile; if anything, it is irrational not to afford them that chance. Decisions about CPR can open the door to other matters, assure the patient that "no code" does not mean "no treatment," and clarify to all concerned what DNR means, including that it can be reassessed. Rational decisionmaking cannot occur absent patient involvement, unless, of course, all decisions are to be made unilaterally.

Educating the public is an integral function of consent; as we educate patients we can educate and reorient society. Most patients and their families are unaware of medicine's recent change of heart about CPR. The best way to debunk the myths, fears, and misperceptions they may harbor from whatever source is by being candid with them in the course of making treatment decisions. Word will get around, and discussing beforehand why CPR won't work minimizes the chances for hurt feelings and possible recriminations if relatives later wonder why a loved one died without heroic efforts.

Respect for human dignity requires truth-telling. Most patients know something is wrong with them. They do not know how bad that something is and what, if anything, can be done about it. They are entitled to know that; presumably that is one reason they went to the doctor. Not acquainting patients with what is known and believed about their prospects and disenfranchising them from deliberations about their fate denigrates them.

Presumed consent'd disrespect for personhood is reflected in its meager concept of autonomy, which it defines as a "negative right"--to be let alone. This simply repackages the already rejected view that consent to a DNR order is never required. It also suggests that patints need information only when medical choices need to be made. Nothing could be further from the truth.

Patients need medical information to make choices that have nothing to do with medicine, especially when no medical options exist. However commonplace DNR orders are to physicians, most patient cross this Rubicon only once, and need to know--in order to plan a funeral, say farewell to friends, try to hold on for the arrival of a new grandchild, or simply look out the window with the knowledge--that time is drawing to a close. Patients are value systems, not organ systems, and consent serves a personal purpose even when it is medically useless. [16]

The futility exception's final arguments--that because patients will demand resuscitation or be so confused and upset by discussions about it they are best served by being excluded from such decisions--do not bear weight. Patients do not behave irrationally as frequently as some people fear, and the patient's first reaction may not last or be the last. Also, the idiosyncratic demands some patients may make do not justify a rule that excuses not talking with all patients. Finally, a doctor is always free to refrain from continuing to care for a patient whose demands for resuscitation violate his or her professional conscience, though separating from a patient at so critical a juncture should prod any physician to deep reflection. Similarly, the commonly invoked adage that candor hurts patients lacks the evidence to support the therapeutic privilege it creates. The truth is, many patients welcome and are relieved by the opportunity to be involved in such deliberations (which also gives those who want the chance to opt out). [17] The recommendation that physicians forgo consent when CPR is futile is usually based on studies in which patients were not adequately informed, or is made despite evidence that properly informed patients overwhelmingly agree with their doctor's recommendation. What these studies do establish is that physicians have trouble talking with patients. More silence is not the solution to that problem.

If a conversation intended to bring patients to a realistic understanding of their situation and of medicine's limited ability to postpone death confuses or hurts them (more so than silence bewilders or angers them), we should determine the cause and address it. Some patients will be upset because no one has ever been candid with them about their condition and prognosis; others because discussing death tongue-ties their doctor. The cure is not less, but more talk. Physicians need to converse more often, thoroughly, and carefully with their patients.

For such conversations to occur, physicians must regard them as integral to practicing good medicine. If they view consent as a form that patients must sign, instead of the ongoing process the form is supposed to substantiate, resuscitation decisions will elevate form over substance in a way that is insensitive and hurtful to patients. Physicians cannot pass patients along or avoid the responsibility for defusing situations their or their colleagues' silence creates. They need education, training, and support to ensure that these conversations occur appropriately and sensitively; which means learning how to converse candidly, comfortably, and sympathetically with patients about death and dying. [18]

Not conversing with patients about such matters should be the exception, not the rule. Indeed, if the expertise physicians gain from their knowledge and experience reveals anything, it is that there is rarely a good reason to wait until a crisis erupts or resuscitation is futile to determine what ought to be done. How often have physicians found their hands tied because they or one of their colleagues were too tongue-tied to plan ahead? If taking a patient's values history were a integral to clinical practice as the medical history is, physicians could establish early on in the relationship the foundation of knowledge and trust needed to discuss decisions concerning the sort of care and treatment patients want at the end of life.

Heads I Win, Tails You Lose

When viewed concretely, the futility exception loses much of the luster it generates in the abstract. It neither encourages advance planning nor discourages not talking with patients. It is unlikely to promote honest, shared decisionmaking or to demonstrate respect for persons and is antithetical to the values consent is supposed to serve. To appreciate the futility exception fully, however, we need to dig further.

The futility exception's latent significance appears when we compare it to its counterpart, the emergency exception. Whereas the futility exception arises partly out of solicitude for a patient's physical integrity, the emergency exception circumvents that integrity in theory and practice. What reconciles these contradictory exceptions is the doctrine of presumed consent, which each promotes. Presumed consent enables physicians "legally and ethically" to exclude patients from participating in decisions affecting them and to decide unilaterally whether to use or withhold resuscitation. What it protects is not a patient's physical integrity, but medicine's professional integrity. Lurking within the futility exception is the medical profession's desire to protect its autonomy against the threats posed by death and health care rationing.

Medicine's professional autonomy--its right to be let alone--rests on a belief in professional expertise that causes individuals and society to surrender to medical authority judgments about private and public health matters. [10] Among the most powerful sources of our faith in medicine is the belief that it can "do something" about death. Resuscitation, which transformed our view of medicine and death, symbolizes medicine's power and lies at the crux of its authority. [20]

For that authority to remain secure, medicine must maximize its control over how resuscitation is perceived and over decisions about when, where, how, and whether it will be used. Disclosing resuscitation's realities and permitting patients to participate in decisions about it diminishes that control and the professional power that comes with it. Because resuscitation decisions are about death, they are personally and professionally challenging. It is more attractive to gloss over or avoid conversations about death than to invite situations where physician or medical impotence is revealed through the overt confession, "There is nothing I (or we) can do."

The futility exception and presumed consent try to solve this problem in a way that does not seem to offend the values consent serves, thereby enabling medicine to retreat intact, as unaccountably as the emergency exception enabled it to advance. By completing the circle the emergency exception starts, the futility exception surrounds resuscitation with a model of consent that maximizes medicine's control over decisions about its use. With consent in favor of resuscitation already presumed, a physician who is unwilling or unable to talk to a patient about such matters need only delay determining a patient's DNR status until resuscitation is futile for the presumption to flip the other way. The decision gets made without the patient's ever knowing when, how, why or even that it did. Between the emergency and futility exceptions, presumed consent gets patients coming and going.

The futility exception also enables medicine to control how resuscitation is perceived, and especially why it does not always work. Emphasizing the perception that some patients are simply "too far gone" for resuscitation to do any good helps hide the other truths about why and how often resuscitation fails. This preserves the heroic aura the emergency exception promotes. It also keeps the public from asking what all this suggests about whether pre-hospital use of CPR ought to remain unlimited; and whether cases such as Nancy Cruzan's raise as profound questions about CPR as they do about feeding tubes. For now, a conversation about an intervention that affects the public excludes it.

Additionally, the futility exception promotes the perception that physicians can (and therefore ought to) be trusted to limit medical resources unilaterally, especially to keep the health care system from being run into the ground by the demands of rapacious, irrational, idiosyncratic patients. Not only do doctors save lives, they save resources too. Setting limits, therefore, involves letting medicine set them for us.

The futility exception's suggestion of presumed consent will likely swallow the rule of actual consent in decisions to limit resuscitation, thereby enabling the medical profession to rein itself in unilaterally and unaccountably. It is medicine's license to withhold at will. It vests the profession whose accountability is at issue with the authority to determine when and whether that authority is properly exercised. It establishes a model of decisionmaking that purports to respect patients, when it actually rationalizes physician avoidance of death and legitimates medical authority.

If physicians are given the authority to enter DNR orders unilaterally when they believe resuscitation would be futile, nothing prevents their using the same reasoning to enter DNT (do-not-treat), DNH (do-not-hospitalize), or any other order denying treatment unilaterally when they believe it would be futile--whether 'futile' means not medically effective, not cost effective, or not worth it for this patient. The futility exception sets limits to everything and everyone except the medical profession's authonomy.

The decisionmaking model it promotes is undemocratic and uncaring. By vesting the medical profession with the authority to make decisions that should be the product of open discussion and shared deliberation, it forecloses the conversation we must have if we are to arrive at a genuine consensus about setting limits. [21] The legal fiction of presumed consent is no substitute for the solid work we all must do if we are to adjust ourselves to the new realities these limits impose. There is no such thing as presumed consensus.

The futility exception is uncaring because it legitimates and perpetuates the practice of isolating dying patients from their physicians. By placing a wall of silence between them, presumed consent severs the dying from the human community before death actually takes them from the world. It offers social death and exclusion at the one moment when we most need the consolation of our fellow men and women. [22] It limits respecting persons to the tissue-thin perspective conveyed by the right to be let alone (a pretty pathetic way of respecting patients we have no intention of touching) and ignores the deeper human values that make us who we are. The morally barren and impoverished ethics of indifference promoted by isolating, disenfranchising, and abandoning patients is no way to treat them as persons. [23]

Is Consent Futile?

Given the unacceptable consequences that result if we adopt the futility exception and presumed consent, we must ask what kind of consent will enable us to make decisions we need to make in a way that preserves our fundamental social values. To do that we must acknowledge what the decision not to resuscitate represents in the debate about how we set limits as the clinical and societal levels. It asks us, individually and collectively, to arrive at a consensus on how to integrate death and decisions about it into the legitimating values of our moral universe. Deciding what kind of life we want involves deciding what kind of death we can face.

To a society whose faith in medicine and whose commitment to the fundamental values of life and liberty has led it to declare that death, once a matter of fate, is now a matter of choice, how we want to allocate death represents the quintessential tragic choice. [24] It strikes at the heart of our strongest values--the Rule of Rescue, the presumption in favor of life--and at our deepest fears. Just when we most need to rely on our basic values to resolve this tragic choice, we find that death and decisions about it overwhelm medicine, life, and liberty. It is a choice we need, but do not want to make; it concerns values we want to hold onto absolutely, but cannot; and it forces us either to admit a truth that seems unbearable or hide it beneath illusions that preserve the moral foundations of social collaboration.

The futility exception is one such illusion. It preserves our faith in medicine, harmoniously reconciles a fundamentally irreconcilable clash of values, and cloaks a decision about allocating death behind a decision about resuscitation. As we have seen, it is a dishonest solution and unless those basic values change it is only a matter of time before it is exposed for illusion. When that happens, the tragic choice resurfaces, as it did in the Wanglie case, and we grope for other subterfuges we hope will do the trick, of which denying the personhood of the unconscious is one and leaving these decisions entirely to "patient selfdetermination" is another.

Because we cannot make death go away, we cannot keep the tragic choice from resurfacing. This means that we must either adopt subterfuge after dishonest subterfuge--and accept the moral erosion each illusion's failure causes--or decide to make these decisions openly and honestly. If we wish to remain true to the values served by consent and respect for persons, we must opt in favor of candor. Once we opt in favor of candor the answer to our question becomes ironically clear: consent is useful because resuscitation is futile.

Difficult though saying no to patients is, the dangers that flow from saying nothing at all are far worse. Obscuring the basis of decisionmaking will generate fear and misunderstanding and lead to abuse, especially of those groups within society traditionally subjected to neglect and mistreatment. Deciding to withhold or limit resuscitation asks us to accept the self-limiting condition of our mortality; deciding to forgo consent asks us to deny the basic values that define us as a society.

Forging a consensus about matters of clinical and social importance requires trust and honesty, and the current posture of the debate suggests that no one trusts anyone to make these decisions. The truth is, however, that we must trust ourselves to make them together, setting aside our fear and mistrust, and conversing openly and respectfully with each other.

For that conversation to occur, we will have to talk in ways we are unaccustomed to. Patients can no more marginalize the legitimate concerns physicians have about their integrity and the need to set reasonable limits than physicians can dismiss patients through the futility exception. Each must give up some authonomy to overcome the barriers that currently serve only to separate us from each other and prevent us from making decisions we need to make together. We must integrate a relational perspective into how we see ourselves and each other. [25] Thus, we must talk about rights in a different way. Instead of trumping them out as conversation-stoppers, we must use them--and the values they express--as the starting point for a conversation about how we can best reconcile our individual wants with our collective needs.

We might well turn a conversation about futility to a useful purpose, by deciding to place less emphasis on death-defying interventions and to put more effort into life-enhancing ones, such as preventive and public health measures, chronic and rehabilitative care, and improved access to care. Not only would this be attentive to patient well-being and autonomy, it might also generate renewed and more heartfelt respect for medicine and physicians.

The question is not whether we can, should, or must make caring and conversation integral to how we decide matters of clinical and social importance, but whether we will. If we do, the hour of our death need no longer be anguished, angry, or lonely. [26]


[1] Robert H. Block, Rationing Medicine (New York: Columbia University Press, 1988); Daniel Callahan, Setting Limits (New York: Simon & Schuster, 1987); Larry R. Churchill, Rationing Health Care in America (Notre Dame, Ind.: University of Notre Dame, 1987).

[2] Howard Brody, "Transparency: Informed Consent in Primary Care," Hastings Center Report 19, no. 5 (1989): 5-9; Marion Danis and Larry R. Churchill, "Autonomy and the Common Weal," Hastings Center Report 21, no. 1 (1991): 25-29.

[3] Bernard Lo and Albert R. Jonsen, "Clinical Decisions to Limit Treatment," Annals of Internal Medicine 93, no. 5 (1980): 764-68; President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Deciding to Forego Life-Sustaining Treatment (Washington, D.C.: U.S. Government Printing Office, 1983), pp. 73-77.

[4] George E. Taffet, Thomas A. Teasdale, and Robert J. Luchi, "In-Hospital Cardiopulmonary Resuscitation," JAMA 260, no. 14 (1988): 2069-72; Peter Safar, "Resuscitation from Clinical Death: Pathophysiologic Limits and Therapeutic Potentials," Critical Care Medicine 16, no. 10 (1988): 923-41; Richard O. Cummins, Kaye Chesemore, Roger D. White et al., "DefibrillatorFailures," JAMA 264, no. 8 (1990): 1019-25.

[5] President's Commission, Deciding to Forego LifeSustaining Treatment, pp. 231-58.

[6] Donald J. Murphy, "Do-not-Resuscitate Orders: Time for Reappraisal in Long-Term-Care Institutions," JAMA 260, no. 14 (1988): 2098-2101; Leslie J. Blackhall, "Must We Always Use CPR?" NEJM 317, no. 20 (1987): 1281-84; Tom Tomlinson and Howard Brody, "Ethics and Communication in Do-Not-Resuscitate Orders," NEJM 318, no. 1 (1988): 43-46; Tom Tomlinson and Howard Brody, "Futility and the Ethics of Communication," JAMA 264, no. 10 (1990): 1276-80; J. Chris Hackler and Charles Hiller, "Family Consent to Orders Not to Resuscitate," JAMA 264, no. 10 (1990): 1281-83; Lawrence J. Schneiderman, Nancy S. Jecker, and Albert R. Jonsen, "Medical Futility: Its Meaning and Implications," Annals of Internal Medicine 112, no. 12 (1990): 949-54.

[7] Peter Safar and Nicholas G. Bircher, Cardiopulmonary Cerebral Resuscitation (Philadelphia: Saunders, 1988); Jeffrey Hammond and C. Gillon Ward, "Decision Not to Treat: 'Do Not Resuscitate' Order for the Burn Patient in the Acute Setting," Critical Care Medicine 17, no. 2 (1989): 136-38.

[8] John D. Lantos, Peter A. Singer, Robert M. Walker et al., "The Illusion of Futility in Clinical Practice," American Journal of Medicine 87, no. 1 (1989): 81-84; Lawrence J. Nelson, "Primum Utilis Esse: The Primacy of Usefulness in Medicine," Yale Journal of Biology and Medicine 51, no. 6 (1978): 655-67; Donald J. Murphy and David B. Matchar, "Life-Sustaining Therapy: A Model for Appropriate Use," JAMA 264, no. 16 (1990): 2103-8; AMA Council no Ethical and Judicial Affairs, "Guidelines for the Appropriate Use of Do-Not-Resuscitate Orders," JAMA 265, no. 14 (1991): 1869-71.

[9] Robert M. Wachter, John M. Luce, Norman Hearst et al., "Decisions about Resuscitations: Inequities among Patients with Different Diseases but Similar Prognoses," Annals of Internal Medicine 111, no. 6 (1989): 525-32.

[10] Daniel Callahan, "Values, Facts and Decisionmaking," Hastings Center Report 1 no. 1 (June 1971): 1.

[11] John La Puma, Marc D. Silverstein, Carol B. Stocking et al. "Life-Sustaining Treatment: A Prospective Study of Patients with DNR Orders in a Teaching Hospital," Archives of Internal Medicine 148, no. 10 (1988): 2193-98.

[12] Paynev. Marion General Hospital, 549 N.E.2d 1043 (Ind. Ct.App. 1990).

[13] The National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research, The Belmont Report (Washington D.C.: U.S. Government Printing Office, 1978), pp. 4-6.

[14] Jay Katz and Alexander M. Capron, Catastrophic Diseases: Who Decides What? (New Brunswick, N.J.: Transaction Books, 1982), pp. 82-90.

[15] Theodore J. Schneyer, "Informed Consent and the Danger of Bias in the Formation of Medical Disclosure Practices," Wisconsin Law Reivew (1976): 124-70; Dennis H. Novack, Barbara J. Detering, Robert Arnold et al., "Physicians' Attitudes Toward Using Deception to Resolve Difficult Ethical Problems," JAMA 261, no. 20 (1989): 2980-85.

[16] Stuart J. Youngner, "Who Defines Futility," JAMA 260, no. 14 (1988): 2094-95; Stuart J. Younger, "Futility in Context," JAMA 264, no. 10 (1990): 1295-96; Susan M. Wolf, "Conflict between Doctor and Patient," Law, Medicine & Health Care 16, nos. 3-4 (1988): 197-203.

[17] Ronald S. Schonwetter, Thomas A. Teasdale, George Taffet et al., :Educating the Elderly: Cardiopulmonary Resuscitation Discussions before and after Intervention," Journal of the American Geriatrics Society 39, no. 4 (1991): 372-77.

[18] Bernard Lo, "Unanswered Questions about DNR Orders," JAMA 265, no. 14 (1991): 1874-75; Raanan Gillon, "Deciding Not to Resuscitate," Journal of Medical Ethics 15, no. 4 (1989): 171-72; Giles R. Scofield, "Terminal Care and the Continuing Need for Professional Education," Journal of Palliative Care 5, no. 3 (1989): 32-36.

[19] Paul Starr, The Social Transformation of American Medicine (New York: Basic Books, 1982), pp. 3-29; Eliot Freidson, Professional Dominance: The Social Structure of Medical Care (New York: Atherton, 1970).

[20] Kathleen Nolan, "In Death's Shadow: The Meanings of Withholding Resuscitation," Hastings Center Report 17, no. 6 (1987): 9-14; Jay Katz, The Silent World of Doctor and Patient (New York: Free Press, 1984), pp. 213-25.

[21] Eliot Freidson, Profession of Medicine (New York: Harper & Row, 1970), pp. 335-52; Michael Walzer, Spheres of Justice (New York: Basic Books, 1983), pp. 155-60, 284-90.

[22] Michael Ignatieff, The Needs of Strangers (New York: Penguin Books, 1986), pp. 76-79.

[23] Elizabeth V. Spelman, "On Treating Persons as Persons," Ethics 88, no. 2 (1978): 150-61.

[24] Guido Calabresi and Philip Bobbit, Tragic Choices (New York: W.W. Norton & Co., 1978), pp. 17-28; Guido Calabresi, Ideals, Beliefs, Attitudes and the Law (Syracuse, N.Y.: Syracuse University Press, 1985), pp. 87-117; Peter L. Berger and Thomas Luckman, The Social Construction of Reality (New York: Doubleday, 1966), 101-2.

[25] Daniel Callahan, "Autonomy: A Moral Good, Not an Obsession," Hastings Center Report 14, no. 5 (1984): 40-42; Martha Minow, Making All the Difference (Ithaca: Cornell University Press, 1990); Robert N. Bellah, Richard Madsen, William Sullivan et al., Habits of the Heart (Berkeley and Los Angeles: University of California Press, 1985).

[26] William F. May, "On Not Facing Death Alone," Hastings Center Report 18, no. 1 (1971): 2-3; Philip Aries, The Hour of Our Death (New YOrk: Alfred A. Knopf, 1981), pp. 611-14.

Giles R. Scofield is a fellow in the Department of Psychology, Craig Hospital, Englewood, Co.
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Title Annotation:cardiopulmonary resuscitation
Author:Scofield, Giles R.
Publication:The Hastings Center Report
Date:Nov 1, 1991
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