by Thaddeus Pope JD Ph.D.

Intensive care clinicians and clinical ethicists have long known that the provision of interventions perceived to be “futile” is a major problem in U.S. hospitals. Medical futility is frequently reported to be a leading reason for ethics consultations. Last week, a new study in JAMA Internal Medicine further quantified the prevalence and cost of interventions perceived to be “futile.”

In the study, a “futile” intervention was defined as treatment administered in situations satisfying one or more of five conditions:

1. The burdens grossly outweigh the benefits.
2. The patient will never survive outside the ICU.
3. The patient is permanently unconscious.
4. The intervention cannot achieve the patient’s goals.
5. Death is imminent.

Using this definition, critical care specialists determined that 11% of 1136 study patients received “futile” interventions and another 8.6% received probably “futile” interventions. This is problematic not only (a) for the patients involved but also: (b) for other patients denied an ICU bed, (c) for the critical care staff (especially the nurses suffering moral distress), and (d) for society as a whole (depending on how ICU costs are calculated).

But the paradigm dispute resolution process for medical futility conflict is insufficient and wanting. It has remained largely unchanged for two decades. Most discussions and policies concerning medical futility or non-beneficial treatment conflicts frame the issues as when “may” clinicians stop life-sustaining treatment without surrogate consent. The decision making process is almost always optional and bottom-up. The process is triggered only if and when the clinician wants to challenge the surrogate demanding interventions satisfying one of the five conditions. On the other hand, if the clinician wants to accede to the surrogate’s request, that is fine. The dispute resolution process is there for the clinician to use, or not use, as she sees fit.

In an editorial accompanying the study on the prevalence of medical futility, Truog and White urge that clinicians “should not simply acquiesce to requests for treatment that they judge to be inappropriate and inconsistent with good medical practice.” But this is only precatory, not imperative or mandatory. There is almost never a legal obligation either to make or to persist in making such a challenge.

But this is changing. Increasingly, jurisdictions around the world have been imposing an affirmative duty on clinicians to refuse surrogate requests for “futile” treatments. For example, Spanish law (here too) provides penalties for engaging in “therapeutic obstinacy.” And in nearby France, a hospital was sanctioned for continuing resuscitation on a seriously compromised newborn for over 25 minutes. The court concluded that this excessive length was “unreasonable obstinacy.” Similarly, a 2013 Council of Europe working document (to be examined for approval by the Council of Europe Committee on Bioethics in November 2013) states that “doctors faced with such situations have a duty not to implement treatment or to withdraw it.”

Furthermore, this “avoid therapeutic obstinacy” rule applies even in the United States. Most notably, clinicians cannot accede to a surrogate’s demand for interventions not consistent with the patient’s own wishes or best interest. Clinicians not only may, but must, challenge surrogates who materially deviate from the decision making standards that they are supposed to apply.

The medical profession has long been mostly self-regulating. But society has increasingly recognized, and become frustrated with, medicine’s failure to adequately fulfill fundamental duties such as obtaining informed consent about end-of-life options. Accordingly, society has expressly imposed (here too, and here too) those duties onto the medical profession. The too-frequent failure of clinicians to challenge surrogates demanding “futile” interventions may trigger a similar external imposition of duties.