Reviews
| DOI | http://doi.org/10.1111/1468-2230.t01-1-00219 |
| Date | 01 May 1999 |
| Published date | 01 May 1999 |
REVIEWS
Marjorie B. Zucker and Howard D. Zucker (eds), Medical Futility and the
Evaluation of Life-Sustaining Interventions, Cambridge: Cambridge University
Press, 1997, 201pp, hb £45.00, pb £16.95.
Questions concerning the use of end of life technology continue to dominate both the
political and ethical landscape. In the UK, a recent consultation document issued by
Lord Chancellor’s Department on decision-making for the mentally incapacitated,
charged with looking at the issue of advance directives afresh, states: ‘Advances in
health care mean not only that people are likely to live longer, but also in
circumstances and with illnesses and disabilities which previously would have led to
the person’s death’. The implications of this are profound. As a greater proportion of
the population survives into old age, society must ask whether it is right to use
medical technology to maintain frail lives at all costs, and policy-makers must devise
the legal and ethical foundations upon which decisions may be made for patients who
can no longer consent to, or refuse, invasive life-prolonging interventions. Harder
still, we can no longer shirk from addressing the unpalatable issue of whether it is
morally justifiable to use a significant proportion of scarce resources to provide
expensive end-of-life therapies for a relatively small number of patients, particularly
where those interventions offer little or no medical benefit to the patient.
Medical Futility expertly addresses all of these matters, as well as surveying the
clinical, ethical, legal, religious and personal dimensions involved in end-of-life
decision-making. Defining what is meant by ‘futility’ is clearly a central theme
throughout the various chapters, although a consensus remains elusive. What
emerges, though, is that futility is rarely defined in absolute terms; rather, its meaning
has shifted to include treatments the burdens of which do not justify the benefits,
particularly those interventions which are capable only of maintaining a patient’s
exceedingly poor quality of life. Decisions to withhold life-sustaining therapies may,
nonetheless, appear to conflict with health practitioners’ ethical and legal duty to
preserve life. This book considers the extent to which withholding treatment is
strictly a technical medical decision, and challenges previously held notions that
physicians should be the sole or primary decision-makers in such situations.
A strength of this eminently readable book is that the contributors are drawn
from a wide range of disciplines. To highlight the personal ramifications of the
subject matter, the editors have included a most moving personal testament, ‘Death
with Dignity?’, by the widow of the late Paul Brophy, subject of a landmark US
end-of-life legal case. Furthermore, it examines the question of futility from a
number of different angles, including chapters on futility from the perspective of
paediatrics, the nursing home environment, and general practice, as well as the
more frequently discussed critical care setting. Thus, for example, Frader and
Watchko point out that in a paediatric context, the futility debate is shaped both by
the deep-seated cultural belief that children should not die before some imaginary
natural life-span, and the inherent medical uncertainty in predicting eventual
medical outcomes in this area.
The contributors are all based in the United States and the issues are represented
primarily from a US perspective. For the main part, the ethical arguments are equally
relevant to the situation in the UK, although there are a number of differences which
ßThe Modern Law Review Limited 1999 (MLR 62:3, May). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA.
468
colour the American experience. One contrast is the way in which health care is
funded. In the US, the principle of managed care embraces a requirement to reduce
health care expenditure by eliminating non-beneficial interventions, and this is
clearly influential in the futility debate. It would be naı¨ve, however, to pretend that
resource implications do not have some part to play in futility discussions in our own
cash-constrained NHS. However, in terms of treatment-limiting protocols, both here
and in the US, there is an unwillingness to address the resource issue head on. Rather,
the front is maintained that each individual end-of-life decision is a clinical decision
to be taken by physicians on the individual facts of the case. Another interesting
difference is the reliance in the US on clinical ethical committees to assist in end-of-
life decisions. This raises the issues of institutional self-interest, for as Frader and
Watchko point out, one single paediatric case may represent a significant economic
burden for a particular hospital.
Advance directives have been seen as a useful device to limit unwanted
interventions, made by people whist still competent, to apply at some future point
when they become mentally incapacitated. As Bartoldus points out in her chapter
on the nursing home perspective, in the US, the 1991 Patient Self-Determination
Act makes it a legal requirement for nursing homes (and indeed all federally
funded institutions) to discuss advance directives with residents upon admission.
Were such a policy to be implemented here, clinicians might at least be able to
identify those patients who did not want to receive unwanted life-sustaining
interventions, but of course this still requires policies to be devised for the
remainder of patients who have not indicated a preference.
The scope and validity of advance directives has been addressed by courts both
here and in the US. But is recourse to law a helpful way of solving the futility
debate? Particularly, can the law determine whether treatment should be given
which the patient or the patient’s family wish to be initiated or continued, but
which the doctor considers futile? Prip and Moretti’s chapter highlights the
difficulty in attempting to derive from the principle of respect for autonomy not
only a legal right to refuse treatment but also a legal right to receive treatment.
Particularly in the US, the negative right of freedom from interference has a long
legal tradition and is rooted in the constitutional right to liberty, and the common
law right to be left alone. In the US, as in the UK, courts have been reluctant to
confer individual rights of access to health resources. In Gilgunn vMassachusetts
General Hospital (1995), a jury held that doctors were not negligent in their
decision to withdraw ventilation and issue a Do Not Resuscitate (DNR) order
despite the patient’s daughter’s objections, on the rationale that the intervention
was futile. The judiciary, Prip and Moretti conclude, offer poor tools for reaching
consensus in this area.
The cost of providing futile treatments is a recurrent issue. In his introduction to
the book, the renowned US ethicist, Alexander Morgan Capron, points to the
current re-examination of the principle of autonomy and asks whether there are not
times when the claims of the community outweigh individual preferences. This
sentiment is picked up by Murphy in his chapter on the economics of futile
interventions. He argues that although truly futile interventions are rare, ‘[w]e need
to make the transition – painfully and slowly – from the rugged individualism that
formed our country to a more communitarian ethic that will help us survive (and
perhaps thrive) in the next century’. Arguing persuasively about the ‘death of
common sense’, he suggests that although the cost-savings in this area may be
small, if society cannot deal responsibly with futile interventions – by which he
connotes the merging of good ethics, good patient care and good economics – then
May 1999] Reviews
ßThe Modern Law Review Limited 1999 469
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