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Stop Therapeutic Obstinacy: Penalties for Administering Futile ICU Interventions

by Thaddeus Pope JD Ph.D.

Intensive care clinicians and clinical ethicists have long known that the provision of interventions perceived to be “futile” is a major problem in U.S. hospitals.  Medical futility is frequently reported to be a leading reason for ethics consultations.  Last week, a new study in JAMA Internal Medicine further quantified the prevalence and cost of interventions perceived to be “futile.”

In the study, a “futile” intervention was defined as treatment administered in situations satisfying one or more of five conditions:

  1. The burdens grossly outweigh the benefits.
  2. The patient will never survive outside the ICU.
  3. The patient is permanently unconscious.
  4. The intervention cannot achieve the patient’s goals.
  5. Death is imminent.

Using this definition, critical care specialists determined that 11% of 1136 study patients received “futile” interventions and another 8.6% received probably “futile” interventions.  This is problematic not only (a) for the patients involved but also: (b) for other patients denied an ICU bed, (c) for the critical care staff (especially the nurses suffering moral distress), and (d) for society as a whole (depending on how ICU costs are calculated).

But the paradigm dispute resolution process for medical futility conflict is insufficient and wanting.  It has remained largely unchanged for two decades.   Most discussions and policies concerning medical futility or non-beneficial treatment conflicts frame the issues as when “may” clinicians stop life-sustaining treatment without surrogate consent.  The decision making process is almost always optional and bottom-up.  The process is triggered only if and when the clinician wants to challenge the surrogate demanding interventions satisfying one of the five conditions.  On the other hand, if the clinician wants to accede to the surrogate’s request, that is fine.  The dispute resolution process is there for the clinician to use, or not use, as she sees fit.

In an editorial accompanying the study on the prevalence of medical futility, Truog and White urge that clinicians “should not simply acquiesce to requests for treatment that they judge to be inappropriate and inconsistent with good medical practice.”  But this is only precatory, not imperative or mandatory.  There is almost never a legal obligation either to make or to persist in making such a challenge.

But this is changing.  Increasingly, jurisdictions around the world have been imposing an affirmative duty on clinicians to refuse surrogate requests for “futile” treatments.  For example, Spanish law  (here too) provides penalties for engaging in “therapeutic obstinacy.”  And in nearby France, a hospital was sanctioned for continuing resuscitation on a seriously compromised newborn for over 25 minutes.  The court concluded that this excessive length was “unreasonable obstinacy.”  Similarly, a 2013 Council of Europe working document (to be examined for approval by the Council of Europe Committee on Bioethics in November 2013) states that “doctors faced with such situations have a duty not to implement treatment or to withdraw it.”

Furthermore, this “avoid therapeutic obstinacy” rule applies even in the United States.  Most notably, clinicians cannot accede to a surrogate’s demand for interventions not consistent with the patient’s own wishes or best interest.  Clinicians not only may, but must, challenge surrogates who materially deviate from the decision making standards that they are supposed to apply.

The medical profession has long been mostly self-regulating.  But society has increasingly recognized, and become frustrated with, medicine’s failure to adequately fulfill fundamental duties such as obtaining informed consent about end-of-life options.  Accordingly, society has expressly imposed (here too, and here too) those duties onto the medical profession.  The too-frequent failure of clinicians to challenge surrogates demanding “futile” interventions may trigger a similar external imposition of duties.

This entry was posted in End of Life Care, Featured Posts, Informed Consent and tagged . Posted by Thaddeus Mason Pope. Bookmark the permalink.

2 responses to “Stop Therapeutic Obstinacy: Penalties for Administering Futile ICU Interventions”

  1. Norman Cantor says:

    Professor Pope takes a salutary step in urging that clinicians have a duty to challenge surrogates’ who abuse their decision-making authority. However, a surrogate is not abusing authority if pursuing a course consistent with a now-incompetent patient’s actual or projected wishes. This is so even if the clinicians deem the course pursued to be medically inappropriate. (For example, maintenance of a permanently unconscious patient). As Truog & White point out in their cited commentary, the disputes between clinicians and surrogates can be complicated and the dispute resolution demands a careful process rather than unilateral physician action. This process includes communication to the surrogate, an opportunity to contest medical findings, and an opportunity to transfer the patient to any willing alternative provider. See N.L. Cantor, “No Ethical or Legal Imperative to Provide Life Support to a Permanently Unaware Patient,” AJOB (Spring 2009).

  2. Chantel Parets says:

    Chantel Parets END-OF-LIFE ETHICS –
    1163 HSC4658 201308

    I am a student, and taking a class called END-OF-LIFE ETHICS, prior to this class I did not really think about the subject. But I am realizing now that futility is a big problem. I think that hospitals, clinics etc. should be held accountable for making unethical decisions. I was astonished when I read this article, about the case in France. It is absurd to perform resuscitation on a seriously compromised newborn for over 25 minutes. This is a case were the courts should intervene and I am glad that they ruled that this was “unreasonable obstinacy.”

    On another note my grandfather passed away this February. He was in the
    hospital, I now realize he should have been at home, with in home hospice. But prior to taking this course, this was not an option I had even ever heard about. In his final days he was poked and probed, had ex-rays and ultrasounds and was truly uncomfortable. Why did the doctors keep insisting that he must stay in the hospital, and have test run. They knew he was dyeing. They should have discussed other options with us. The medical industry needs to relay these other choices to families in these futile cases.

    It is to late to do anything about my grandfather, but I have learned alot and
    will not allow anyone else that I love suffer or be subjected to treatments
    when there is no reason to torture them. I am glad that this article
    discusses this massive issue and that implementation for administering futile ICU interventions are being held accountable. Personally In the case of my grandfather I don’t blame anyone but my family for our ignorance.
    But hospitals and doctors need to do a better job communicating options with families and not partake in medical procedures when the patient will not
    have any beneficence .

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