Clinical Ethics and Law: Case 1
Disagreement among surrogate decision-makers and with advance directive/end of life/futility:
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A 72 year old woman was admitted to the Neurological Intensive Care Unit following a cerebral hemorrhage which left her with severe brain damage and ventilator dependent. One year before this event, the patient and her husband had drawn up "living wills" with an attorney. She was diagnosed by her treating physician as being in a permanent unconscious condition. The patient's living will specified that the patient did not want ventilator support or other artificial life support in the event of a permanent unconscious condition or terminal condition. The patient's husband is her legal next of kin and the person with surrogate decision-making authority. When the living will was discussed with him, he insisted that the patient had not intended for the document to be used in a situation like the present one. Further discussion with him revealed that he understood that the patient would not be able to recover any meaningful brain function but he argued that the living will did not apply because her condition was not imminently terminal. He further indicated that he did not consider his wife to be in a permanent unconscious condition. The immediate family members (the couple’s adult children) disagreed with their father’s refusal to withdraw life support. The treatment team allowed a week to pass to allow the husband more time to be supported in his grief and to appreciate the gravity of his wife’s situation. Nevertheless, at the end of this time, the husband was unwilling to authorize withdrawal of life support measures consistent with the patient's wishes as expressed in her living will. What should be done? What are the ethical and legal parameters? |
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Disagreement among surrogate decision-makers and with advance directive/end of life/futility:
Case 1 Discussion
The ethical and legal parameters in Case 1 are informed consent, surrogate decision-making and the patient's ability to direct her care - expressed in law as a liberty or privacy right and in clinical ethics as respect for patient autonomy. While the details of each case will determine the advice provided, the difficult issues raised in Case 1 prompt consideration of a number clinical ethics and legal issues.
Specific clinical ethics and legal issues:
The patient is unable to provide informed consent for medical care. Informed consent means making a medical treatment choice and includes the choice of non-treatment. What is known about the patient's wishes for continued medical treatment under her current circumstances?
Her providers, referencing intuitional policy, thought ventilator support and CPR were medically futile. A provider’s determination of medical futility means that treatment is highly unlikely to provide overall benefit to the patient. Such determinations are case-specific, and should be thoroughly discussed with surrogate decision-makers. While providers may not be obligated to provide medically futile interventions, depending upon circumstances, the patient may be transferred to another facility. Institutional policies are crafted to provide guidance to providers within the context of clinical ethics and the relevant laws and should guide decision-making in this area. In Washington State for example, decisions to withdraw or withhold medical treatment are partially governed by the Washington Natural Death Act which currently requires that the patient be in a permanent unconscious or terminal condition. 21 There are other circumstances in which a surrogate will be able to make choices on behalf of the patient.
The patient's advance directive is strong evidence and significant in determining what the patient would want for substituted judgment. Since the patient's husband (her legal surrogate) only made vague statements as to why he thought she would want continued care under these circumstances and the husband's perspective was contradicted by their adult children, it appears the situation requires further communication efforts, e.g., patient care conference, clinical ethics consultation, potential consult with institutional risk manager and/or attorney. The services of a hospital chaplain may also be helpful since the husband had indicated that his religious beliefs played some role in his perspective of his wife’s situation.
If these additional communication efforts fail to resolve the impasse, one possible legal/risk management approach would be to consider pursuing withdrawal of life support after multiple steps and ongoing consultation. Possible actions might include the following.
The content of the patient's advance directive should be verified to be consistent with a decision to forego further life-sustaining measures. Those persons who were present when she prepared and signed the document should be contacted to gather further information about the patient's intentions.
The requisite clinical determination(s) ("terminal" or "permanent unconscious" conditions) to activate the patient's advance directive should be confirmed and documented in the patient's chart.
Consensus among the medical team should be confirmed regarding: the clinical determinations; the appropriateness of withdrawing life support as in the patient's best interests; and, that withdrawal is consistent with her advance directive. The applicability of the institutional futility or withholding and withdrawal policy should be reviewed and, if applicable, documented in the patient’s chart.
A patient care conference with the family members should be scheduled to review the patient's prognosis with the family once again. Assuming that the medical team is in consensus about withdrawal, they can communicate their decision to withdraw care at a specific future date and time. With this advance notice of planned future action, the patient's husband is provided an opportunity to seek judicial review or arrange for a transfer of care to another medical facility before the withdrawal of care. At any time throughout this process, it may be possible to break the stalemate of the patient's situation and allow a resolution.
It is anticipated that in such a complex medical and emotionally charged circumstance that there would be ongoing communications and multiple opportunities with hospital staff, care providers, and the patient's surrogate and immediate family members about what the patient would want and or what is in her best interest. This situation underscores the importance of communication with the surrogate the throughout the resolution process. A clinical ethicist or palliative care consultant can assist in this process.