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'Futile' treatment for incompetent patients

Dr. Bard-Parker has a thoughtful post about a 79-year-old patient with a terminal illness whom doctors at the Massachusetts General Hospital want to remove from life support against the wishes of her family.

Dr. Rangel has an equally thoughtful post about an infant in Texas born with a birth defect that requires prolonged ventilator support, leads to severe mental retardation, and is uniformly fatal before adulthood. Doctors at Texas Children's Hospital in Houston want to disconnect the infant from the ventilator against the wishes of his mother.

When it comes to the question of making treatment decisions for incompetent and terminally ill patients, Bard-Parker draws the reasonable distinction between initiating new treatment and withdrawing treatment in progress: "I have no problem with the withholding of aggressive or invasive therapies to patients that would not benefit from them or change the eventual outcome, despite family wishes[.] I also believe that families can and should make decisions about the withdrawal of care." This position corresponds with our intuition that families ought not to be able to compel physicians to provide futile treatment. It also acknowledges that the family is probably the best proxy for the patient when the decision concerns something that looks like "refusal" of treatment that doctors are already providing.

But does this make too much of the distinction? The patient at Mass. General has been in a hospital bed and on a ventilator since 1997. Her condition is incurable. Assuming that the patient is in fact not conscious and has no hope of ever regaining consciousness, the family's insistence that the patient be kept on the ventilator looks more like they are compelling the hospital to provide futile treatment. The physicians in the ICU must perform affirmative acts that they regard as futile -- something that the family could not require of surgeons if they insisted that a futile procedure be performed on the same patient.

Dr. Rangel points out that the physicians in both Massachusetts and in Texas have good reason to believe that continued treatment will only cause the patients to suffer. Should a doctor be compelled by the family to prolong suffering, if they cannot be compelled to 'initiate' suffering?

Dr. Rangel asks:

Is the system broken? Too often I hear about court decisions that dismiss the opinions of medical professionals and allow terminal patients to continue to suffer. Probate courts appear to be far less responsive to the continued suffering of terminal patients with incurable conditions than they are to the demands of patient families no matter how irrational or disconnected they are from considering what is best for the patient. Why is this the case?
Dr. Rangel identifies one reason: fear of euthanasia. Judges might feel (reasonably) that they are not in the best position to have an intimate knowledge of the situation, and might decide (again, reasonably) to "play it safe" by requiring that treatments continue.

But Rangel is surely right that this approach can lead to patient suffering. That's why legislatures have good reason to provide protocols that relieve the judge of the need to make case-by-case decisions about withdrawing medical treatment. The Texas Advance Directives Act (link to pdf file here) seems like the right approach. The law requires hospitals who want to withdraw treatment against the wishes of the family to obtain an ethics committee consult, undergo a waiting period, and attempt to transfer the patient to another facility who will abide by the wishes of the family. In this case, a judge will most often only have to decide whether there is a reasonable expectation that an extension of the waiting period will make it possible to identify a facility that will accept the transfer of the patient.

I don't think Dr. Bard-Parker needs to fear an American version of the Groningen Protocol, but I also think Dr. Rangel exaggerates the "faux standard of care" imposed by the courts. Fortunately, I think most families and physicians will be able to come to some kind of consensus regarding futile treatment. When they cannot, legislatures and courts together can fashion sensible rules to deal with the dispute. This doesn't mean they always will, only that they are capable of it if the rest of us hold them to high enough standards.

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