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HEALTH ETHICS TODAY
When Patients Demand Too Much Alister Browne, PhD The Sawatsky case leaves us with the question: When, if at all, can health care providers refuse requests for treatment? In Sawatsky, the question applied to resuscitation. But it equally applies to requests for alternative/complementary treatments, exotic treatments (such as extra corporeal membrane oxygenation), and ordinary treatments requested in extraordinary circumstances (such as tube feeding for a patient in a persistent vegetative state). Futility The most common way of refusing requests for treatment is by saying that the treatment is futile3. To say "The treatment is futile" sounds like a hard, cold, scientific fact, and is an effective way of turning aside requests for treatment. But it is also a dishonest way. To say that treatment is futile is to say either that it is impossible or unlikely to achieve its therapeutic goal, or that there is something problematic about the goal. But judging treatment futile in any of these ways is never, by itself, a justification for saying "No." Treatment which is futile in any of the above senses may have psychological benefits for the patient or family, or (if the treatment is merely unlikely to succeed) may actually succeed. Why should such treatments be denied? We only have a justification for refusing treatment, if the judgement of futility is conjoined either with the judgement that it is either excessively costly or puts the patient at risk. It thus emerges that to refuse treatment on the ground of futility is either not to justify the refusal at all, or to pass off a value-laden judgement (the treatment is not worth the cost, or not worthwhile for the patient) as a value-free one. It thus seems preferable to abandon the concept of futility in favour of the concepts that actually do the work of justification: cost and harm to the patient4. Cost It is generally agreed that patients can be refused treatment for reasons of cost. What treatments may be denied under this head is a nice question, but that some may be is undeniable in principle2. There is, however, an unresolved problem about who can do the refusing. Conventional wisdom has it that clinicians cannot. Clinicians owe patients their undivided loyalty. Cost cutting at the bedside would also guarantee an inequitable distribution of resources, as some will deliver what others would withhold. The standard recommendation is that clinicians should ask for everything that is potentially beneficial for their patients and it is up to others to say "No." In particular, since it is society's money, society should, in Oregon-like fashion, undertake a priority setting exercise to develop rules of rationing which would be binding on health care providers. This would do something to ensure an equitable distribution of treatment. It will also enable health care providers to look their patients in the eye and say that, within the bounds allowed them, they are doing everything they can. The problem is what to do until we have societally sanctioned rules of rationing. If costs are to be contained, someone must act as gatekeepers. If clinicians cannot, who can? No answer comes to mind, and costs escalate. Harm to PatientTreatment may be requested by the family or the patient. The family may request it because they have some reason to think that the patient would have wanted the treatment (which is called a "substituted judgement"). Or they may request it because they hold that any reasonable person in that position would want it (which is called a "best interest judgement"). Or the family may request the treatment just because they think it best, where there is no pretense of this being a substituted judgement or meeting the best interest standard. If the family requests treatment just because they think it best, but the health care professionals deem this, on balance, harmful to the patient, health care providers should say "No." Health care providers have a prima facie obligation to do what they consider to be in the best interest of the patient, and this obligation cannot be cancelled by the wishes of a family, unbacked by a substituted judgement or a contrary best interest judgement. If the family requests the treatment in question on the basis of a best interest judgement, that must be taken more seriously. Families can judge what the reasonable person in the patient's position would want as well as can health care professionals. But health care providers need reasons to agree with best interest judgements before they act on them. Thus, again they should say "No," but this should be followed rapidly by a review in the form of a second opinion or ethics consultation. There are two schools of thought on what to do if the family requests the treatment on the basis of a substituted judgement, or if it is the patient that makes the request. One has it that health care providers have a strict obligation not to harm their patients, and thus should systematically refuse1. The second holds that once health care providers inform patients about the medical aspects as well as they can, treatment decisions should be made by patients. When the dispute is about what risks are worth what benefits, patients are the experts, and hence health care providers should systematically subordinate their judgements to those of their patients5. Both schools are mistaken. It is implausible to hold that health care providers should never subordinate their on balance judgements to those of their patients. It is important for individuals to lay out their existences as they see fit, and sometimes they need the help of health care providers to do this. We expect investment brokers, divorce lawyers, tailors, and climbing guides to sometimes subordinate their judgement to those of their clients. Health care providers should not hold themselves to a higher standard. It is equally implausible, however, to say that health care providers should always put themselves at the disposal of their patients. Whenever health care providers act against their better judgement, they must be prepared to justify their complicity if things turn out badly for the patient, and this will be difficult to do if the harm is certain and substantial. Excluding the "never" or "always" positions leaves health care providers in the difficult position of exercising judgement when faced with requests for treatment they deem on balance harmful. This is an uncomfortable situation, but once health care providers cannot rely on habitual action or rules, there is no escaping it. Conclusion The problem of refusing requests for treatment will be with us for the foreseeable future. We are not entirely directionless when faced with it, but situations will occur where one's moral compass must spin on its gimbals. Whether better can be done remains to be seen, and the challenge of the court in Sawatsky. ? References
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Updated September 7, 2010
Health Ethics Today
