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CMAJ
CMAJ - March 23, 1999JAMC - le 23 mars 1999

Why I am not a futilitarian

CMAJ 1999;160:869-70

© 1999 Canadian Medical Association

Only a few years ago, patients and their families were battling in courts with physicians and hospitals for the right to have unwanted life support withdrawn. While patients argued that no medical intervention could be administered (or continued) without consent, physicians were reluctant to withdraw life-prolonging treatment on the grounds that this would run counter to their commitment to the preservation of life. The struggle extended beyond courtroom walls as society at large attempted to define the authority given to physicians and patients to make treatment decisions. In cases whose plaintiffs became household names — Karen Quinlan, Nancy Cruzan and Canada's own Nancy B. —the right to refuse medical interventions, whether by the patient or a surrogate, was unequivocally established.

The issue has now been turned on its head, and the thoroughly brilliant analysis found in Susan B. Rubin's When Doctors Say No couldn't be more timely. In Canada today, physicians sometimes refuse to provide or threaten to withdraw life-sustaining treatment against the wishes of patients and their families. One such case has recently attracted national media attention. Andrew Sawatsky, a 79-year-old man with Parkinson's disease, was admitted to a long-term care facility after suffering a series of strokes. Because he was no longer able to speak for himself, his wife of 43 years urged physicians to "use all ... means to keep him alive if his medical condition deteriorates."1 Physicians and the hospital unleashed a two-punch response. Helene Sawatsky was, as the Globe and Mail reported, deemed "not competent to act for him since she disagrees with the medical experts," and the Public Trustee assumed legal supervision of the case. A do-not-resuscitate (DNR) order was unilaterally written on the patient's chart on the grounds that cardiopulmonary resuscitation (CPR) would be medically futile.1 The case has yet to be decided by the courts.

As the Sawatsky case illustrates, futilitarianism — the belief that physicians may unilaterally refuse to provide treatment they believe to be useless — has gained considerable support among Canadian physicians. Bioethicists George Webster and Pat Murphy recently observed: "On any number of occasions ... clinicians have said to us that they no longer have to have the permission of patients to write a DNR order, if they think [CPR] would be 'futile.'"3 Rubin correctly ascribes a complex etiology to this state of affairs: the shifting boundaries of the physician­patient relationship, reaction against the growing emphasis on patient autonomy and ever-increasing pressures on physicians to restrict resource utilization. These factors have given rise to two articulations of medical futility: "strong" and "weak." Both understandings of futility, Rubin rightly observes, are morally flawed.

The "strong" version of futility, first described in 19904 and mirrored in the CMA's joint statement on resuscitative interventions,5 makes a distinction between quantitative and qualitative futility. A treatment is qualitatively futile if it "merely preserves permanent unconsiousness or ... fails to end total dependence on intensive medical care."4 Rubin points out, as have others,6 that judgements about qualitative futility are not about probabilities but about values. Allowing the values of physicians to trump those of patients gives undue emphasis to the evaluations of physicians. "Nothing in the therapeutic relationship between physicians and patients supports the deliberate imposition of physicians' own idiosyncratic value judgments (or their professional values) on patients in this fashion" (p. 85). Indeed, it is the patients who are in a "privileged epistemic position and hence their wishes should be given primary consideration" (p. 88).

A "weak" version of futility has garnered considerably more support in the bioethics literature. Roughly corresponding to "quantitative futility," it allows physicians to unilaterally override a patient's wishes when there is good evidence that an intervention cannot produce the intended effect.7 This position claims validity on the basis that such unilateral decisions are based on facts rather than values. Rubin uses a social constructivist critique to challenge the fact­value distinction. Social constructivism sees scientific knowledge as unavoidably value laden. "[S]cience is understood to be, most fundamentally, a social practice, with its own specific rules and orientations to problems, its own biases about the kinds of knowledge worth pursuing, and its own particular relation to the world around it" (p. 97). Empirical study unavoidably involves value-laden choices as to the importance of possible questions to be studied, what constitutes a clinically relevant outcome and acceptable probabilities of error. The notion that facts are "value free" is a fiction, and, since we have rejected unilateral physician decision-making based on values, neither can the "weak" version of futility be sustained.

When Doctors Say No is the most thorough philosophical rebuttal I have found of medical futility as the basis for unilateral decision-making by physicians. Rubin acknowledges that such decision-making may be legitimate, but only in cases in which broad social discourse —not mere intraprofessional discourse —has given physicians the right to engage in it. Our society has not yet had the needed debate as to whether, for example, people in a persistent vegetative state ought to receive life-sustaining treatment. Even given such a consensus, exemptions for those with strongly held religious beliefs would likely be invoked.8

Canadian physicians must retreat from appeals to futility and engage in open dialogue with patients in which the values of both parties are open to scrutiny. When physicians believe that a particular choice is favoured (or disfavoured, for that matter), they should use moral suasion — but not coercion — to attempt to convince the patient of their view. In the most difficult cases, physicians should use other available resources, including bioethicists and hospital ethics committees, to facilitate compromise. Rubin's superb book reminds us that only in this way can trust, the cornerstone of the physician­patient relationship, be preserved.

Charles Weijer, MD, PhD
Assistant Professor of Medicine
Bioethics Education and Research
Dalhousie University

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When doctors say no: the battleground of medical futility
Susan B. Rubin
Indiana University Press, Bloomington; 1998
204 pp. US$24.95. ISBN 0-253-33463-2
References
  1. Roberts D. Wife battles Winnipeg hospital to keep husband alive. Globe and Mail [Toronto] 1998 Nov 10;Sect A:3.
  2. Roberts D. Hospital gives no guarantee to chronically ill patients. Globe and Mail [Toronto] 1998 Nov 11;Sect A:3.
  3. Webster GC, Murphy P. Frank medical discussion a must: patient, family must be informed of and understand a DNR order. Winnipeg Free Press 1998 Nov 18;Sect A.
  4. Schneiderman LJ, Jecker NS, Jonsen AR. Medical futility: its meaning and ethical implications. Ann Intern Med 1990;112:949-54.
  5. Joint statement on resuscitative interventions (update 1995). CMAJ 1995;153:1652A-C.
  6. Weijer C, Elliott C. Pulling the plug on medical futility. BMJ 1995;310:683-4.
  7. Truog RD, Brett AS, Frader J. The problem with futility. N Engl J Med 1992;326:1560-4.
  8. Weijer C. Cardiopulmonary resuscitation for patients in a persistent vegetative state: Futile or acceptable? CMAJ 1998;158:491-3.