No to Ad Hoc Death Panels

JAMA has editorialized concerning Futile Care Theory, aka medical futility. The idea is that when a doctor or bioethics committee believes that wanted life-sustaining treatment isn’t worth the suffering or cost, they should be able to veto a family or patient’s decision to stay alive and limit treatment to comfort care. 

The journal is reacting to a study finding that ICU doctors believe that 20% of ICU care is “futile.” JAMA cogently notes that the study is of limited value, since it only records the perceptions of one doctor per patient, and does not include the views of nurses, families, etc.

It then makes some editorial recommendations that I think are worth considering. From, “Futile Treatments in Intensive Care Units:”

First, we believe that clinicians should generally avoid using the term futile to describe such treatment and instead use the term potentially inappropriate. It is exceedingly rare for surrogates in ICUs to request treatments that are strictly futile (ie, stand no chance of achieving their intended goal). Instead, disputes generally arise from requests for treatments that stand at least some chance of accomplishing the patient’s goal but for which the clinician believes that there are competing ethical considerations that may justify treatment refusal, such as the low likelihood of benefit or the high cost.

Whatever you call it, to use a widely deployed polemic, that amounts to an ad hoc death panel. 

Second, from an ethical and legal standpoint, these disputes are often more complicated than they seem. Although in some cases clinicians may believe strongly that it would be wrong to administer the requested treatments, there is ongoing debate about the boundaries of acceptable practice near the end of life. Short of brain death, there are no criteria or rules to which clinicians can appeal to justify decisions to refuse life support, at least when those treatments hold even a small chance of achieving the patient’s goals.


Third, clinicians’ initial response to requests for treatments that they believe are wrong should be to increase communication with the patient or the patient’s surrogate rather than simply to refuse the request.

No question.

Fourth, if the conflict becomes intractable despite intensive communication, clinicians should pursue a fair process of dispute resolution rather than refusing unilaterally to provide treatment…Important components of a fair process include seeking a second opinion from a qualified physician, case review by the hospital ethics committee, attempts to transfer the patient to another institution when such a transfer might be appropriate, and informing surrogates of their right to seek judicial intervention.

No. I am all in favor of dispute resolution processes. But they must be mediating as distinguished from quasi-judicial. The committee cannot have the final say.

I have attended these meetings, and they can be very intimidating. Everyone in the room tends to know each other–and usually interact often with the doctor, who may be a hospital employee known as a hospitalist–leading to a real (if unintended) stacked deck favoring the institutional culture.

I do agree  that intractable disputes belong in open court, with a right to discovery, deposition, cross examination, appeal–and press coverage. But the hospital should have the burden of proof and the duty to take the matter to court, not the family.

So let us say no to ad hoc death panels. Allowing imposed withdrawal of life-sustaining treatment at the bedside–whatever it is called–would further undermine the people’s already waning faith in the health care system.

Wesley J. Smith — Wesley J. Smith is a senior fellow at the Discovery Institute’s Center on Human Exceptionalism.

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