The lastest story, published last week, concerned whether dying patients' or their family members'have the authority to insist that physicians attempt "heroic" life-saving measures, such as cardiopulmonary resuscitation (CPR). The physician may deem the intervention futile, at best, and injurious, at worst: Futile inasmuch as studies show that hospitalized patients receiving CPR have a long-term survival rates of 15 percent. Harmful inasmuch as patients may endure cracked ribs, burst blood vessel, and other trauma during CPR. The Times article suggests that families' insistence on heroic measures may be influenced, in part, by television medical dramas suggesting that CPR works 67 percent of the time, according to the same study, published in the New England Journal of Medicine.
Legal and ethical standards seem to require the physician to proceed, despite his or her medical judgment that the intervention is not in the patient's best interest. The physician may go though the motions of performing these so-called "slow codes," "light-blue codes," or "Hollywood codes" reluctantly or perfunctorily merely for the benefit of family members. The default rule, then, seems to be that patient autonomy -- expressed directly by a conscious patient through an advance directive, or by proxy through family decisionmakers -- trumps medical judgment, at times forcing "bad practice." The "slow code" pantomime may be the only outlet for physicians' to exercise medical judgment.
Does the same default rule apply equally in other end-of-life decisionmaking contexts, such as the much-discussed Teri Schiavo case? Where is the line drawn in cases involving termination or continuation of life support for patients? The Schiavo example was complicated because the dispute was not just between family and medical professionals but, rather, among the patient's feuding decisionmakers who disagreed on whether to continue or discontinue life-sustaining treatment and nutrition. But in the "easier" case, do patients' (or family members') wishes trump medical judgment regarding whether life-support should continue?
The Supreme Court, in Cruzan v. Director, Missouri Department of Health, said decidedly, "Yes." The lawsuit arose after Nancy Cruzan's treatment providers refused her family's request to terminate life-support. (As an aside, another recent story highlighted medical studies showing that patients such as Shiavo and Cruzan in persistent vegetative states (PVS) may retain more brain-function than previously believed, which raises new legal and ethical questions for terminating life-support for PVS patients.) The Cruzan Court recognized that patients (but not necessarily family members) have a liberty interest, protected by the Due Process clause, in medical decisionmaking and refusing life-sustaining treatment.
So, again, the default rule seems to be that patient autonomy trumps medical decisionmaking, at times forcing arguably "bad practice" or even assisted suicide. With one possible "out" for medical judgment: Cruzan limits the liberty interest in refusing unwanted medical treatment to "competent" patients. At what point may a patient be deemed "incompetent" or "irrational" such that medical judgment can override the patient's expressed or divined wishes? Is the "incompetent" patient in termination of life-support cases the analogue to the "slow code" in heroic life-saving cases? Does declaring a patient "incompetent" create a narrow outlet for medical judgment to operate contrary to patients' desires?
If a patient "chooses" a course of treatment, or refuses treatment, against medical advice regarding the patient's best interest, can that decision be disregarded as the mad ravings of a "incompetent" patient? Take the Million Dollar Baby example: Can a young, gifted, formerly active athlete who is permanently disabled and disfigured by a traumatic accident, but who nevertheless retains all mental functioning, "rationally" choose to terminate life-sustaining treatment? Even in the face of medical judgment that her condition may be sustained, endured, or even improved with time? If such a patient chooses a self-injurious course of treatment, or makes the ultimate decision to die, can medical professionals deem her inherently "incompetent"? Can we override her expressed wishes, much as we deem a suicidally depressed patient "incompetent" for purposes of civilly committing her to institutional care against her wishes? Medical ethicists participating in a monthly discussion group at the University of Kansas Medical Center suggested just that: Once a patient makes a decision contrary to her best medical care, she is no longer a "competent" decisionmaker and her expressed wishes can -- and, indeed, ethically, should -- be ignored.
To me, that suggestion is hard to swallow. And harder to swallow in light of the insistence on performing a futile "Hollywood code" on a dying patient. In other contexts we readily uphold patients' seemingly irrational, autonomous, yet self-injurious decisions. We allow lung-cancer patients to purchase and smoke cigarettes. We allow patients with heart disease who have had coronary bypass surgery to order steak dinners. We (at least in some states) allow bicyclists to ride without helmets. Even after they crash. And we allow families to insist that physicians perform potentially harmful chest compressions on their dying loved ones.
If we are serious about autonomy, then we should not draw the line paternalistically at competent versus incompetent patients. We should respect the wishes of all patients, even if medical professionals would make a different choice, just as courts and ethicists require physicians to perform pointless chest compressions to dying patients. And if we want to give room for medical judgment, for placing trust in the learned profession, we should do so directly by defining a subset of cases in which professional judgment can trump patient autonomy rather than obliquely by requiring heroic pantomimes of life-saving care when families insist or making tautological determinations of incompetency when patients' wishes contravene professional standards of care.