Online research in philosophy

Abstract   Medical futility is commonly understood as treatment that would not provide for any meaningful benefit for the patient. While the medical facts will help to determine what is medically appropriate, it is often difficult for patients, families, surrogate decision-makers and healthcare providers to navigate these difficult situations. Often communication breaks down between those involved or reaches an impasse. This paper presents a set of practical strategies for dealing with cases of perceived medical futility at a major cancer center. Content Type Journal Article Pages 1-8 DOI 10.1007/s10730-011-9168-3 Authors Colleen M. Gallagher, Section for Integrated Ethics in Cancer Care, Unit 1430, The University of Texas MD Anderson Cancer Center, P.O. Box 301402, Houston, TX 77230-1402, USA Ryan F. Holmes, St. Louis University, St. Louis, MO, USA Journal HEC Forum Online ISSN 1572-8498 Print ISSN 0956-2737.

Administering futile medical treatment is tantamount to inflicting cruel and unusual punishment on a patient and an abridgement of his rights of self-determination. It is incumbent upon physicians to recognize that they should accept the imposition of an affirmative legal, professional, moral and ethical duty not to prescribe a modality of treatment that falls clearly within the scope of being considered futile, freakish, or tortious under the provisions of Eighth Amendment to the Constitution. When medical treatment is classified as "futile," it frees the physician from any duty to provide treatment. While most reasonable persons agree with this proposition, much disagreement exists as to the definition of futile treatment and who decides whether a given treatment is futile. This article begins with a discussion of various definitions of futility and distinguishes futility from other grounds for denying medical treatment. Next, this article examines the issue of who decides whether a given treatment is futile and what operational guidelines may be employed to reach this conclusion. A three-tiered decisional structure is then proposed for testing whether a given treatment falls within the scope of these guidelines. Under the first tier, the treating physician would have the primary responsibility of determining whether a particular treatment should be withheld on the grounds of futility. While the physician would be under a duty not to prescribe treatment deemed futile, he would be obliged to inform the patient and his family of this decision¿including the reasons for the decision. This would allow, under the second tier, for the patient or his family to appeal the decision to the hospital ethics committee. The third tier recognizes a right of limited appeal to the courts. The article concludes by suggesting that the management of death can be more humane when the principle of medical futility is refined and sharpened as proposed herein and thus seen as an efficacious construct for medico-legal decision making.

Sovereignty has long been the dominant lens through which we view both federalism and international law. From the perspective of sovereignty, both federalism and international law are primarily about drawing clear boundaries and demarcations between separate, autonomous power centers. Recently, however, a group of scholars have embraced a more pluralist approach to both American federalism and international law. They have touted the important virtues of jurisdictional redundancy and inter-systemic governance models in which multiple legal and regulatory authorities weigh in regarding the same acts and actors. And they argue that such jurisdictional redundancies are not just a necessary accommodation to the reality of a world of multiple authority; they may actually be beneficial. Such benefits include a greater possibility for error correction, a more robust field for norm articulation, and a larger space for creative innovation. Moreover, we might think that when decisionmakers are forced to consider the existence of other possible decisionmakers they will tend to adopt, over time, a more restrained view of their own power, seeing themselves as part of a larger tapestry of decisionmaking in which they are not the only potentially relevant voice. Indeed, pluralists recognize that what constitutes the appropriate spheres for “local,” “national,” and “international” regulation and adjudication changes over time and should not be essentialized. To illustrate how a pluralist approach might work, I discuss Medellín v. Texas, in which the United States Supreme Court intervened in a dispute among the International Court of Justice, the Bush administration, and the State of Texas regarding the appropriate role of the Vienna Convention on Consular Relations in a state capital murder case. Although the Supreme Court majority emphasized the need to delineate clear, non-overlapping spheres of international, national, and state authority, I draw on the insights of legal pluralism to proffer a more flexible approach to the interaction of multiple sources of law implicated by the case.

The debate over futility is driven, in part, by physicians' desire to recover some measure of decision-making authority from their patients. The standard approach begins by noting that certain interventions are futile for certain patients and then asserts that doctors have no obligation to provide futile treatment. The concept of futility is a complex one, and many commentators find it useful to distinguish ‘physiological futility’ from ‘qualitative futility’. The assertion that physicians can decide to withhold physiologically futile treatment generates little controversy. The claim that they can withhold qualitatively futile treatment runs afoul of standard objections to medical paternalism. There is reason to believe that the conceptual distinction will not be maintained in clinical practice. This paper contends that the scientific data which would support a physician's unilateral decision to withhold physiologically futile treatment also provide support for an institutional policy restricting access to the treatment. The data the doctor uses to take decision-making power out of the hands of the patient can be used by the administrator to take power out of the hands of the doctor. While this loss of power is unproblematic, there is reason to believe that the ambiguity in the term ‘futility’ will allow a much greater loss of physicians' power. Keywords: futility, physician authority CiteULike Connotea Del.icio.us What's this?

The legal basis of informed consent in Texas may on first examination suggest an unqualified affirmation of persons as the source of authority over themselves. This view of individuals in the practice of informed consent tends to present persons outside of any social context in general and outside of their families in particular. The actual functioning of law and medical practice in Texas, however, is far more complex. This study begins with a brief overview of the roots of Texas law and public policy regarding informed consent. This surface account is then contrasted with examples drawn from the actual functioning of Texas law: Texas legislation regarding out-of-hospital do-not-resuscitate (DNR) orders. As a default approach to medical decision-making when patients lose decisional capacity and have failed to appoint a formal proxy or establish their wishes, this law establishes a defeasible presumption in favor of what the law characterizes as “qualified relatives” who can function as decision-makers for those terminal family members who lose decisional capacity. The study shows how, in the face of a general affirmation of the autonomy of individuals as if they were morally and socially isolated agents, space is nevertheless made for families to choose on behalf of their own members. The result is a multi-tier public morality, one affirming individuals as morally authoritative and the other recognizing the decisional standing of families.

Informed consent is one of the most important ethical and legal principles in the United States, including Texas, and reflects a profound respect for individuals and their ability to make decisions in their own best interest. It is also a critical underpinning of medical practice, although how it is actually carried out has not been well studied. A survey was conducted in the private practices and a hospital in the Texas Medical Center in Houston, Texas to ascertain how physicians, patients and patient's family members perceive and demonstrate the elements of informed consent. In-depth interviews of twelve physicians, three patients and three family members were carried out. For physicians, consent was an explicit and implicit aspect of virtually all medical practice. Physicians would seek patient input concerning medical decisions whenever possible and might also discuss care choices with families. However, they often made decisions based upon what they perceived as the patient's best interests. Patients expected the physician to involve them in the decision process, but whether they turned to family members, or even others to assist them, varied considerably. Although Texas physicians respect the competent patient as the primary decision maker, they may bypass a formal surrogate decision maker to gain input from others, including their own view of what is in the patient's best interest.

Futility is not a purely medical concept. Its subjective nature requires a balanced procedural approach where competing views can be aired and in which disputes can be resolved with procedural fairness. Law should play an important role in this process. Pure medical models of futility are based on a false claim of medical sovereignty. Procedural approaches avoid the problems of such claims. This paper examines the arguments for and against the adoption of a procedural approach to futility determination.