Human Exceptionalism

Futile Care Arrogance

The Texas Advance Directive Act (TADA) allows a hospital bioethics committee and doctors to veto wanted life-sustaining treatment if they believe the suffering thereby caused is unwarranted–with the cost of care always in the unspoken background.

It is a form of ad hoc health care rationing–death panels, if you will–that place the moral values and opinions of strangers over those of the patient and family. 

Futile care theory would even allow strangers to veto the contents of a patient’s written and expressly-stated advance directive.

Texas Right to Life (among others) has been an adamant opponent of the law, attempting to get it repealed.

This effort has been impeded repeatedly by the Texas Catholic Conference (see my article here) perhaps because the state’s Catholic hospital association likes the law. (Texas Alliance for Life often carries the Catholic Conference’s water on this matter, in agreement on this issue, ironically, with the utilitarian bioethics movement.)

Why? It’s a bit of a puzzlement.

I don’t doubt, they think it is the right thing. But it should also be noted that hospitals benefit financially be refusing wanted but expensive treatment. Perhaps their social justice inclinations see limited resources as best spent on other patients. 

In the wake of the Chris Dunn case, in which the patient–conscience and aware–clearly wanted life-sustaining treatment to continue, TAL defenders of futile care expose the “doctor knows best” arrogance of the futile care movement. From, “Balancing the Rights of Patients and Doctors,” in Public Discourse (my emphasis)

A person in possession of his mental faculties is not morally bound to choose treatments whose negative effects are disproportionate to any good that could come from them.

By the law of transitivity, it would seem to follow that neither his doctor nor his surrogates are either.

Some may say that patients are the only ones able to judge the proportionality of suffering due to life-sustaining treatments. In this case, those treatments decreased the ability of the patient to judge.

I have heard such excuses and rationalizations in futile care controversies again and again: The patient doesn’t really know what is best; the family is acting on guilt; misplaced religious belief is forcing a wrong choice; they should leave such decisions to the “experts.” Bah!

Besides, Catholic moral teaching–at least, as I understand it–allows the patient to decide when suffering being experienced supersedes the benefit, being received. It does not give that decision to doctors or bioethicists.  

Thus St. John Paul II decided not to try and stay alive by any means necessary, he was not prevented from doing so by others as is done in futile care cases. 

The article also exhibits some mendacity by omission when it discusses the refusal by other hospitals to take Dunn, by leaving out important facts:

It is telling that, even with the assistance of the hospital over several weeks to find another care provider, none would accept Chris’s transfer, indicating that other doctors agreed with the attending physician’s prognosis.

But patients caught up in futile care cases usually lose money for hospitals in our capitated funding system.

Moreover, this whole Texas controversy began when Houston hospitals created a futile care policy and agreed to honor such determinations made by other institutions. Heads we win, tails you lose.

If continuing wanted treatment is the wrong thing to do–it should not be decided by a Star Chamber bioethics committee made up of colleagues who reflect corporate or institutional values, meeting in secret with no real transparency or accountability.

Rather, if maintaining life when that is wanted is so egregious as to be inhumane, the controversy belongs in open court, with cross examination, an official record, and a right to appeal.

Bioethics committees have a very important role to play as mediating bodies in the event of treatment disputes.

But they should never be empowered to become institutionally-authorized, quasi-judicial death panels.

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