The Society of Critical Care Medicine Ethics Committee recommendations:
“Policies to limit inadvisable treatment should have the following characteristics: a) be disclosed in the public record; b) reflect moral values acceptable to the community; c) not be based exclusively on prognostic scoring systems; d) articulate appellate mechanisms; and e) be recognized by the courts. Healthcare organizations that control payment have a profound influence on treatment decisions and should formally address criteria for determining when treatments are inadvisable and should share accountability for those decisions” (“Consensus Statement” 887).
Referring to these recommendations, one author suggests that, “An additional desirable feature is uniformity: futility policies should require standardized definitions of futility” (Bernat 203).
The Council on Ethical and Judicial Affairs (CEJA) recommendations:
The CEJA realizes that objectivity is unattainable in medical futility cases, and therefore recommends performing case-by-case evaluations using a fair process approach which “acknowledges both the impossibility of attaining objective assurance and the necessity of proceeding fairly” (CEJA 939).
The CEJA recommends that all health care institutions, no matter the size, adopt a policy on medical futility. They suggest that policies on medical futility follow a due process approach, following seven steps:
Four steps aimed at deliberation and resolution:
- “Earnest attempts should be made to deliberate over and negotiate a prior understanding between patient, proxy, and physician about what constitutes futile care for the patient and what falls within acceptable limits for the physician, family, and possibly also the institution. . . If serious disagreement is unresolvable, provisions can be made for sensitive and orderly transfer of care at such a time that it can preempt later conflicts.”
- “Joint decision making should also be made at bedside between patient or proxy and physician. This joint decision making should make use of outcomes data whenever possible, should incorporate the physician and patient and/or proxy intent or goals for treatment, and should abide by established standards of deliberation and informed consent.”
- If there is still irresolvable disagreement, “The assistance of an individual consultant and/or patient representative is a further step that is often helpful.”
- If there is still irresolvable disagreement, “An institutional committee such as an ethics committee may be involved.”
Two steps aimed at securing alternatives in case of irresolvable differences:
- If the outcome of the institutional process coincides with the patient’s desires but the physician does not agree, “arrangement can be made for transfer to another physician within the institution.”
- If the outcome of the institutional process coincides with the physician’s position but the patient does not agree, “arrangements for transfer to another institution may be sought.”
And a final step aimed at closure when all alternatives have been exhausted:
- “If transfer is not possible because no physician or institution can be found that will follow the patient’s and/or proxy’s wishes it may be because the request is considered offensive to medical ethics and professional standards in the eyes of a majority in of the health care profession. In this case, by ethics standards, the intervention in question need not be provided, although the legal ramifications of this course of action are uncertain
The CEJA goes on to say, “An important advantage to having a fair process approach is that arbitration can occur in a setting that is usually more convenient, more knowledgeable in medicine, more rapidly responsive, and less expensive in financial and emotional terms than court action... The fair process approach also provides a system for addressing the ethical dilemmas regarding end-of-life care without need for recourse to the court system. The Council, therefore, recommends that health care institutions, whether large or small, adopt a policy on medical futility, and that policies on medical futility follow a fair process approach such as that presented above” (CEJA 939-940).
An Example: Texas Advanced Directives Act of 1999 (Fine)
“Advance directives in Texas clearly recognize that patients may use a directive to reject or request treatment in the face of terminal or irreversible illness. Surrogates acting on behalf of incompetent patients may do the same. However, not all requests are necessarily granted. If there is a request for treatment that the treatment team feels is medically futile, an ethics consultation may be requested. Under the new law, the following process must occur if the treatment team and institution wish to take full advantage of the provisions of the law creating a legal safe harbor for them. These provisions are as follows:
- The family must be given written information concerning hospital policy on the ethics consultation process.
- The family must be given 48 hours’ notice and be invited to participate in the ethics consultation process.
- The ethics consultation process must provide a written report to the family of the findings of the ethics review process.
- If the ethics consultation process fails to resolve the dispute, the hospital, working with the family, must try to arrange transfer to another provider physician and institution who are willing to give the treatment requested by the family and refused by the current treatment team.
- If after 10 days, no such provider can be found, the hospital and physician may unilaterally withhold or withdraw the therapy that has been determined to be futile.
- The party who disagrees may appeal to the relevant state court and ask the judge to grant an extension of time before treatment is withdrawn. This extension is to be granted only if the judge determines that there is a reasonable likelihood of finding a willing provider of the disputed treatment if more time is granted.
- If either the family does not seek an extension or the judge fails to grant one, futile treatment may be unilaterally withdrawn by the treatment team with immunity from civil or criminal prosecution. (This is the “legal safe harbor” for physicians, institutions, and ethics committees, the first of its kind in the country)” (Fine 145-146).