The legal doctrine of informed consent has overwhelmingly failed to assure that the medical treatment patients get is the treatment patients want. This Article describes and defends an ongoing shift toward shared decision making processes incorporating the use of certified patient decision aids.
Although death by neurologic criteria is legally recognized throughout the United States, state laws and clinical practice vary concerning three key issues: the medical standards used to determine death by neurologic criteria, management of family objections before determination of death by neurologic criteria, and management of religious objections to declaration of death by neurologic criteria. The American Academy of Neurology and other medical stakeholder organizations involved in the determination of death by neurologic criteria have undertaken concerted action to address variation (...) in clinical practice in order to ensure the integrity of brain death determination. To complement this effort, state policymakers must revise legislation on the use of neurologic criteria to declare death. We review the legal history and current laws regarding neurologic criteria to declare death and offer proposed revisions to the Uniform Determination of Death Act and the rationale for these recommendations. (shrink)
This issue’s “Legal Briefing” column continues coverage of recent legal developments involving medical decision making for unbefriended patients. These patients have neither decision-making capacity nor a reasonably available surrogate to make healthcare decisions on their behalf. This topic has been the subject of recent articles in JCE. It has been the subject of major policy reports. Indeed, caring for the unbefriended has even been described as the “single greatest category of problems” encountered in bioethics consultation. Moreover, the scope of the (...) problem continues to expand, especially with rapid growth in the elderly population and with an increased prevalence of dementia. Unfortunately, most U.S. jurisdictions have failed to adopt effective healthcare decision-making systems or procedures for the unbefriended. “Existing mechanisms to address the issue of decision making for the unbefriended are scant and not uniform.” Most providers are “muddling through on an ad hoc basis.” Still, over the past several months, a number of state legislatures have finally addressed the issue. These developments and a survey of the current landscape are grouped into the following 14 categories. The first two categories define the problem of medical decision making for the unbefriended. The remaining 12 describe different solutions to the problem. The first six categories were covered in Part 1 of this article; the last eight categories are covered in this issue . 1. Who are the unbefriended? 2. Risks and problems of the unbefriended 3. Prevention: advance care planning, diligent searching, and careful capacity assessment 4. Decision-making mechanisms and standards 5. Emergency exception to informed consent 6. Expanded default surrogate lists: close friends 7. Private guardians 8. Volunteer guardians 9. Public guardians 10. Temporary and emergency guardians 11. Attending physicians 12. Other clinicians, individuals, and entities 13. Institutional committees 14. External committees. (shrink)
Syltern and colleagues argue that we should give parents more time to make difficult decisions about life-sustaining treatment at the margins of viability (Syltern et al. 2022). This thesis is appe...
This issue’s “Legal Briefing” column covers recent legal developments involving POLST POLST has been the subject of recent articles in JCE. It has been the subject of major policy reports and a recent New York Times editorial. And POLST has been the subject of significant legislative, regulatory, and policy attention over the past several months. These developments and a survey of the current landscape are usefully grouped into the following 14 categories: 1. Terminology 2. Purpose, function, and success 3. Status (...) in the states 4. Four legal routes of implementation 5. Which professionals can authorize POLST? 6. Is the patient’s signature required? 7. Can surrogates consent to for incapacitated patients? 8. If a POLST conflicts with an advance directive, which prevails? 9. Is offering POLST mandatory? 10. What are the duties of healthcare providers? 11. What is the role of electronic registries? 12. What is the role of the federal government? 13. International adoption 14. Court cases. (shrink)
This issue’s “Legal Briefing” column continues coverage of recent legal developments involving medical decision making for unbefriended patients. These patients have neither decision-making capacity nor a reasonably available surrogate to make healthcare decisions on their behalf. This topic has been the subject of recent articles in JCE. It has been the subject of major policy reports. Indeed, caring for the unbefriended has even been described as the “single greatest category of problems” encountered in bioethics consultation. Moreover, the scope of the (...) problem continues to expand, especially with rapid growth in the elderly population and with an increased prevalence of dementia. Unfortunately, most U.S. jurisdictions have failed to adopt effective healthcare decision-making systems or procedures for the unbefriended. “Existing mechanisms to address the issue of decision making for the unbefriended are scant and not uniform.” Most providers are “muddling through on an ad hoc basis.” Still, over the past several months, a number of state legislatures have finally addressed the issue. These developments and a survey of the current landscape are grouped into the following 14 categories. The first two categories define the problem of medical decision making for the unbefriended. The remaining 12 describe different solutions to the problem. The first six categories were covered in Part 1 of this article; the last eight categories are covered in this issue . 1. Who are the unbefriended? 2. Risks and problems of the unbefriended 3. Prevention: advance care planning, diligent searching, and careful capacity assessment 4. Decision-making mechanisms and standards 5. Emergency exception to informed consent 6. Expanded default surrogate lists: close friends 7. Private guardians 8. Volunteer guardians 9. Public guardians 10. Temporary and emergency guardians 11. Attending physicians 12. Other clinicians, individuals, and entities 13. Institutional committees 14. External committees. (shrink)
Like the authors of some of the other responses to Schneiderman, Jecker, and Jonsen, I too was one of the group that produced “An Official ATS/AACN/ACCP/ESICM/SCCM Policy Statement: Responding to Requests for Futile and Potentially Inappropriate Treatments in Intensive Care Units”. Furthermore, ethical and legal issues surrounding futile and potentially inappropriate medical treatment have been a primary focus of my scholarship for more than a decade. Schneiderman, Jecker, and Jonsen offer a strong critique of the Multiorganization Statement, but they do (...) not describe it with sufficient precision. There are points of true normative disagreement between the... (shrink)
British courts have adjudicated dozens of medical futility disputes over the past 10 years. Many of these cases have involved pediatric patients. All these judgements are publicly available in searchable legal reporters. And most were covered by the print or broadcast media.1 Yet, as noted by Dressler, none of these earlier cases received even a fraction of the public or scholarly attention that Charlie Gard has received. One might assess the Gard case from two different perspectives. At one level, the (...) Gard case is not unique. It is merely the n+1 medical futility dispute decided by the British courts. Admittedly, the Gard case has a much higher profile than earlier cases. But it announced no new rules or principles. It merely focused a spotlight on an already well-established process for resolving medical futility disputes. However, from another perspective, the Gard case is distinctive in at least five ways from other medical futility cases decided by the British courts. Because these unique features illustrate the limits or weaknesses of current rules and principles, they allude to potential improvements in the dispute resolution process. The papers in this special issue offer many valuable suggestions. After identifying the five unique features of the Gard case, I focus on the most prevalent two questions. Are courts the best forum for resolving these disputes? Is the best interest standard the right test for determining the limits of surrogate decision-making authority? Because the British courts have so many publicly available judgements in medical futility cases, it is possible to identify five distinctive features in the Gard case. First, Charlie’s parents were not asking GOSH clinicians to continue treating Charlie against either their professional judgement or against their personal beliefs. Instead, Charlie’s parents wanted to transfer him to another hospital that was willing …. (shrink)
A major appellate court decision from the United States seriously questions the legal sufficiency of prevailing medical criteria for the determination of death by neurological criteria. There may be a mismatch between legal and medical standards for brain death, requiring the amendment of either or both. In South Australia, a Bill seeks to establish a legal right for a defined category of persons suffering unbearably to request voluntary euthanasia. However, an essential criterion of a voluntary decision is that it is (...) not tainted by undue influence, and this Bill falls short of providing adequate guidance to assess for undue influence. (shrink)
Terminally ill patients in 10 states plus Washington, D.C. have the right to take prescribed medications to end their lives. But otherwise-eligible patients with neuromuscula...
(2010). Restricting CPR to Patients Who Provide Informed Consent Will Not Permit Physicians to Unilaterally Refuse Requested CPR. The American Journal of Bioethics: Vol. 10, No. 1, pp. 82-83.
This issue’s “Legal Briefing” column covers recent legal developments involving home birth and midwifery in the United States. Specifically, we focus on new legislative, regulatory, and judicial acts that impact women’s access to direct entry midwives. We categorize these legal developments into the following 12 categories.1. Background and History2. Certified Nurse-Midwives3. Direct Entry Midwives4. Prohibition of Direct Entry Midwives5. Enforcement of Prohibition6. Challenges to Prohibition7. Forbearance without License8. Voluntary Licensure9. Unclear and Uncertain Status10. Growth of DEM Licensure11. Licensure Restrictions12. Medicaid (...) Coverage. (shrink)
Through the Louisiana Purchase in 1803, the United States expanded its size by over 800,000 square miles. But neither President Thomas Jefferson nor Congress knew exactly what they had bought until 1806, when Meriwether Lewis and William Clark returned from their famous expedition. One of the most significant contributions of the Expedition was a better perception of the geography of the Northwest. Lewis and Clark prepared approximately 140 maps and filled in the main outlines of the previously blank map of (...) the northwestern United States. Robert I. Field has done much the same for the vast territory of U.S. health care regulation.On the front cover of Fields new book, Health Care Regulation in America: Complexity, Confrontation, and Compromise, is a picture of a giant three-dimensional labyrinth. Rarely is cover art so perfectly appropriate. (shrink)
