Wednesday, October 18, 2006

Thanks for the recommendation, Doc., but I'll have the steak.

The New York Times has been running a now-and-then series on end-of-life decisionmaking, examining the tension and legal line-drawing between medical judgment and patient autonomy. The common thread throughout these stories seems to be that patients' rights trump professional standards of practice. Does that preference serve patients' best interests? Have physicians been relegated to mere treatment "recommenders," rather than treatment providers?

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.


Blogger Ben Eggleston said...

I like your post a lot - it really gives the necessary background and some persuasive analysis in a concise and lively way. I take it that your concluding remarks - "If we are serious about autonomy . . .", "if we want to give room for medical judgment . . ." - are essentially a plea for consistency and transparency, for an end to saying we value autonomy but then denying it when we disagree with the patient's decision, and an end to the charade of "slow codes" and other treatments done more to placate families than to help patients. I think I'm with you on that.

But I want to ask you about what you said about autonomy: "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 . . ." Suppose someone says, "I'm serious about autonomy, but I'm serious about helping patients have autonomy over their whole lives, not just doing what they say no matter the circumstances. A depressed patient facing painful treatments for a curable disease might wish to be allowed to die rather than endure that agony, even though objectively it might be expected that he will recover and have decades of good health and happy life remaining. In some such cases, it might be completely reasonable for a disinterested third party to believe that the patient will eventually be glad and grateful if a physician, maybe a psychiatrist, were allowed to disobey his or her wishes. Of course, special safeguards will be needed to ensure that interested parties (such as eager physicians or family members unwilling to let go) are not in charge of deciding when a patient's wishes can be overridden, but if that worry is allayed, then shouldn't the patient's wishes be overridden - again, when and only when there is good reason to think the patient will later approve? Isn't that how to most fully respect the patient's wishes? And if that is the case, don't considerations of autonomy require not that we eradicate the competent/incompetent distinction, but only that we draw it differently from the way we do now?"

So suppose someone says that. Are you okay with that, or is that just lip service to autonomy that tries to smuggle illicit paternalism in under that noble ideal?

10/18/2006 11:07 PM  
Blogger Elizabeth Weeks said...

You're absolutely right. And I don't, actually, think that autonomy is absolute. I'm okay with making decisions for kids and "truly" incompetent people (wherever that line can be drawn). And, although I do have a bad habit of not wearing a bicycle helmet around town, I am okay with seatbelt laws, outlawing prostitution, and civil committment. I signed my share of mentally ill people into the hospital against their will, but in their best interest, when I did social work.

My goal with the overbroad statement was to be provocative. And to dispute, specifically, the thesis that any patient wish that is inconsistent with best medical care is "irrational" and does not have to be honored. If courts can be trusted to gather evidence and decide whether unconscious patients like Nancy Cruzan would chose to die, perhaps it's not such a stretch to trust them likewise to decide whether a depressed or permanently disabled person would eventually chose to live.

10/19/2006 8:30 AM  
Anonymous Anonymous said...

Interesting article. There's a line of ambiguous and sometimes contradictory cases involving tort law and religious rights, e.g., Jehovah's Witnesses and blood transfusions. A possible way to analyze this is from contractarian principles.

10/19/2006 11:38 AM  

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