Jocelyn Downie on Medical Futility at the AABHL

The AABHL conference on medical futility kicked off last night with a lecture by Jocelyn Downie titled "Cutting the Gordian Knot of Futility: Responding to the Unilateral Withholding and Withdrawing of Potentially Life-Sustaining Treatment."  

After reviewing relevant court decisions from New Zealand and Australia, Professor Downie outlined the standard problems with having end-of-life policy developed through the judiciary (e.g. insufficient time, complex issues).  More importantly, she argued that there are a number of concerns with the current status quo in New Zealand and Australia which generally permits physicians to unilaterally withhold and withdraw life-sustaining treatment that they deem inappropriate.  Indeed, she called the cases permitting this "ethically indefensible."  Among other concerns, deferring to physicians is dangerous, Downie explained, because they have known biases such as devaluing life in some disabled conditions.

Professor Downie argued that we must focus on legislative reform after engaging in both values clarification (e.g. autonomy, equality, distributive justice, humility, pragmatism, access to justice, conscience) and conceptual clarification (e.g. "futility," "necessaries of life").  She argued that physicians have a lawful excuse to withdraw in only six circumstances:

1.     Informed consent

2.     Physical impossibility

3.     Ability to transfer

4.     Valid resource allocation policy

5.     Statutory authorization or obligation

6.     Order from court or tribunal

Given her pessimism about the ability of courts to appropriately handle these cases, Professor Downie was especially supportive of specialized tribunals like the CCB.  She encouraged more research about their strengths and weaknesses compared to courts.

Sydney Harbour Bridge Climb

I am on my way to the AABHL Conference on Medical Futility in the Gold Coast.  But I had to stop to climb the Sydney Harbour Bridge.

Along with running with the bulls in Spain and rock climbing in Yosemite Valley in the USA, BridgeClimb Sydney has been rated in the Lonely Planet's top ten biggest adrenaline rush experiences.  Indeed, there are moments where one stops to think, "What am I doing out on the arch of this bridge?"  But it was a rewarding adventure.

Rasouli v. Sunnybrook - Case Analysis

In Rasouli v. Sunnybrook Health Sciences Center, the Court of Appeal of Ontario held that intractable surrogate-physician disputes over the appropriateness of continuing life-sustaining treatment must go to the Consent and Capacity Board.  That is generally a fine dispute resolution mechanism.  Physicians, including physicians from Sunnybrook, are often successful there. 

But in cases in which the surrogate is acting on the basis of the patient’s known wish (e.g, Golubchuk, S.S., and arguably Rasouli), the CCB must support the surrogate.  As the Court of Appeal observed, “its hands are tied.”  Indeed, as I argued in a recent article in the St. Louis University Journal of Health Law and Policy, a surrogate selection approach to futility disputes has some material limitations for providers.

Notably, the Court of Appeal’s decision is significantly narrowed in two ways.  Indeed, one might even say that the Court of Appeals has actually announced a ruling affirmatively permitting providers (at least as far as the HCCA is concerned) to unilaterally stop non-beneficial treatment with just two exceptions.

STATUTORY INTERPRETATION

The trial court concluded that since both mechanical ventilation and artificial nutrition and hydration are “treatment,” and since withdrawing treatment is also defined as “treatment,” then provider’s proposal here constituted “treatment” under the HCCA.  Therefore, consent was required.  The appellate court agreed with the providers that while those interventions were typically treatment, they were not treatment for Rasouli, since they provided him no therapeutic value.  Nevertheless, the appellate court concluded that the proposal constituted “treatment” under the HCCA because the withdrawal (not treatment in and of itself) was inextricably intertwined with the provision of palliative care (which was treatment requiring consent). 

The 25 Documents You Need Before You Die

This Wall Street Journal article reminds you about planning that you should have already done.

"Consider the Conversation" - New Documentary

PBS stations across the country are starting to broadcast "Consider the Conversation."  It is also available on DVD from Amazon.  This documentary sheds light on how 21st-century Americans struggle to communicate about and prepare for the end of their lives.  It evolved from the experiences of two Wisconsin men with losing loved ones and clients.  The film features interviews with terminally-ill patients, their families, their medical practitioners, and with a wide range of experts on medical, spiritual, legal, and social-service issues surrounding when and how to die.

New Palliative Care System for England

Yesterday, an independent review for the UK Secretary of State for Health issued a 100-page report, "Finding the Right Care and Support for Everyone."  The report finds that nearly 100,000 are not getting good palliative care.  The report addresses how the state funds a good, safe death, and it proposes a per-patient funding mechanism for palliative care.  The report's recommendations promise not only to deliver better outcomes for patients but also to provide better value for the NHS.

Emergency medicine and futile care

New in Emergency Medicine Australasia:  "Emergency Medicine and Futile Care: Taking the Road Less Traveled."  Authors Alan O'Connor et al. summarize their article:  Debate around medical futility has produced a vast literature that continues to grow. Largely absent from the broader literature is the role of emergency medicine in either starting measures that prove to be futile, withholding treatment or starting the end of life communication process with patients and families. In this discussion we review the status of the futility debate in general, identify some of the perceived barriers in managing futile care in the ED including the ethical and legal issues, and establish the contribution of emergency medicine in this important debate. We conclude that emergency physicians have the clinical ability and the legal and moral standing to resist providing futile treatment. In these situations they can take a different path that focuses on comfort care thereby initiating the process of the much sought after ‘good death’.

New Case: Jordan Allen v. Texas Childrens

Fourteen-year-old Jordan Allen has an inoperable brain tumor.  After a cardiopulmonary arrest, his providers at Texas Children's Hospital determined that there was no chance of recovery or cure.  They followed the formal section 166.046 procedure and planned to withdraw life support on Sunday.  Jordan's family was, however, to find a LTC transfer facility for Jordan, after their insurance company reversed its earlier coverage denial decision. (KHOU TV and Houston Chronicle)