Should physicians make value judgments regarding medical futility?

- Atsushi Asai, M.D.
Honorary Visiting Research Fellow, Centre for Human Bioethics, Monash University, Australia
Email: Atsushi.Asai@arts.monash.edu.au (until Dec 1998)
Department of General Medicine and Clinical Epidemiology, Kyoto University School of Medicine, Japan

Eubios Journal of Asian and International Bioethics 8 (1998), 141-43.


Abstract

Medical futility is one of the most controversial concepts in biomedical ethics. Different people have proposed diverse definitions. Nevertheless, decisions about medical futility have tremendous impacts on clinical practice and physician-patient relationships. The most fundamental dispute about medical futility is whether or not value-laden judgments regarding medical futility are acceptable.

In this essay, I argue that value-laden judgments of medical futility are necessary in clinical settings because a majority of "futility " debates have focused on medical problems requiring value-laden judgments. Value judgments made by physicians can be used in the form of recommendation given in the process of informed consent. Physicians' value judgments might be well informed and calm.

I believe that imposing one's value on others is one thing and having a certain position about value is the other. Physicians should establish their ethical attitudes in physician-patient relationships, but I strongly object to physicians' imposing their value judgments on patients and their family in any situation. In most "futility" cases, physicians must not withhold information about medical interventions that they believe are futile. It is essential for physicians to openly discuss their beliefs regarding what makes a human life valuable and what constitutes benefits with their patients and patients' families. There are many barriers to a physicians making sound value judgments. Therefore, it is mandatory for physicians to be aware that they are making value judgments about medical interventions and recognize that value judgments could be biased by self-interest. It is also important for them to admit that physicians have no expertise in value judgments about individual cases.

1. Medical futility and its implications

The word futility comes from the Latin word meaning leaky (futilis). According to the Oxford English Dictionary, a futile action is "leaky, hence untrustworthy, vain, failing of the desired end through intrinsic defect." A futile action is one that cannot achieve the goal of the action, no matter how often repeated. The likelihood of failure may be predictable because it is inherent in the nature of the action proposed, and it may become immediately obvious or may become apparent only after many failed attempts (1) In clinical settings, medical futility is a term to refer to medical treatments that are unlikely to achieve their desired aims. Medical futility is, however, one of the most controversial concepts in biomedical ethics. Different people have proposed diverse definitions. All of the following have been referred to as futile treatment so far: whatever is highly unlikely to be efficacious, a low-grade outcome that is virtually certain, and whatever is highly likely to be more burdensome than beneficial. Thus, the term futility is now used to cover both situations of predicted impossibility and situations in which there are competing interpretations of probabilities and competing value judgments such as a balance of probable benefits and burdens (2).

The concept of medical futility has significant ethical implications in clinical practice. This is because whether or not a certain intervention is futile could determine physicians' obligation to offer medical interventions and even the information about it when informed consent is obtained. Many physicians and medical communities have declared that the duty to present an intervention as an option to a patient or the patient's family is mitigated or eliminated if the intervention is regarded as futile. Physicians may reject patient's or surrogate's requests for it and may be spared invasive procedures that offer no benefit, and resources may not be wasted (3). In terms of informed consent, information about futile treatments may not be provided to the patient in the first place. Some physicians have claimed that physicians can permissibly judge a treatment to be futile and are entitled to withhold a procedure, and that, in that case, they should act in accordance with other health care professionals, without obtaining consent from patients or family member (1). For instance, use of a mechanical ventilator could be judged futile for a conscious patient suffering respiratory failure with end-stage lung cancer. In this case, some would claim that physicians in charge of the patient's care could withhold the information about mechanical ventilation when they discuss treatment plan with the patient and/or the patient's family. Even if the family demands the physicians to use artificial respiratory support for the patient, they could reject the demand based on the judgment that such an intervention is futile, claiming that the judgment of futility is a matter of professional expertise. Thus, decisions about medical futility have tremendous impacts on clinical practice and physician-patient relationship.

In the past decade, bioethicists and physicians disagree about how to define medical futility. I believe that the most fundamental dispute among them is whether or not value-laden judgments regarding medical futility are acceptable. Value judgments may be included in interpretation of the likelihood of success of medical treatment, quality of patient's situation, and cost-benefit ratio. In the next sections, I will review several definitions of medical futility including so-called physiological futility and value-laden futility in detail and discuss problems of these definitions. Does physiological futility really work in clinical settings? Is it preferable to value-laden futility? Are even physicians entitled to make value judgments about a patient's quality of life and medical benefits? Can physicians make sound value judgments?

I would argue that value-laden judgments of medical futility is necessary in clinical settings. Value judgments made by physicians can be used in the form of recommendation given in the process of informed consent. Physicians' value judgments may be well informed and calm. I would also argue that physicians should openly discuss their beliefs regarding what makes a human life valuable and what constitutes benefits with their patients and patients' families.

2. Uselessness of physiological futility

Bernard Lo, who is one of leading physician-ethicists in the US, argues that medical futility justifies unilateral decisions by physicians to withhold or withdraw interventions in four strictly defined senses (3). They include that medical intervention has no physiologic rationale, maximal treatment is failing; an intervention has already failed in the patient; and, the intervention will not achieve the goal of care that the patient explicitly expresses. Childress also suggests that physicians could claim medical treatment is futile only when it cannot be performed or will not produce physiological effects, whatever ends or objects are sought (4).

The term futility is also used in several looser senses that involve value judgments. Four definitions are commonly mentioned (3). They include that the likelihood of success is very small; no worthwhile goal of care can be achieved; the patient's quality of life is unacceptable; and prospective benefit is not worth the resources required. For instance, Schneiderman and coauthors have proposed that physicians should conclude that interventions are futile when they observe no success in 100 attempts of the intervention, and that if a treatment merely preserves permanent unconsciousness or cannot end dependence on intensive medical care, the treatment should be considered futile (1, 5).

Proponents of physiological futility attack value-laden definitions of medical futility as arbitrary or inconsistent. Physicians, patients, and their family would disagree over the threshold of probability that suggests that an intervention is futile. The statistical cut-off point for futility could be1%, 5%, or 10% likelihood of success. Deciding what is a worthwhile goal of care and what level of quality of life is acceptable is also a matter of significant dispute. Critics of value-laden futility argue that it is an attempt to increase the power of physicians over patients and family and disregard patient autonomy. Their arguments against value-laden futility are, I believe, all true and ethically problematic (3,4).

However, I would argue that physiological futility also has various problems in clinical settings. First, as Schneiderman and coauthors criticize, the assertion that physiological futility is value-free entails a value choice (5). It assumes that the goals of medicine are to preserve organ function, body parts, and physiological activity and it could depart from the patient-centered goals of medicine. Second, no one knows the exact prognosis in an individual case with 100% certainty even if some statistical likelihood has been reported. In many cases, there is no data available suggesting that a certain intervention will never achieve an aimed goal. Third, physiological futility would also require personal and value-laden interpretation. This is because what constitutes the highest limit of interventions depends partly on a personal choice although general clinical guidelines exist; decision about how many times an intervention deserves to try may also be determined mainly based on physicians' experiences. It should be noted that a physician and family rarely know the goals of care that a patient desires. It is doubted that more than half of the general public in Australia, the UK, or Japan have written advance directives or explicitly discussed what the goals of medicine are for them with their family or physicians. There are also many people who cannot decide what they want from medicine.

It seems that only one strict sense of medical futility (a: an intervention has no physiological rationale) can be plausibly regarded as value-free. It means that medical intervention is futile when it has no physiological effect on a patient's condition. Provision of antibiotics to a patient with a common cold is virtually futile. Immunization for chicken pox is futile for those who want to avoid measles. However, claims for medical futility with this strictest definition are, I believe, rarely useful. It is not necessary because few patients or family members insist on interventions that have no reason to improve a patient's condition after they are given explanation. For example, an attempt to resuscitate a patient (CPR) who has been dead for 24 hours is futile. No family would insist that CPR be performed. It is actually no use because a majority of "futility " debates have focused on medical problems requiring value-laden judgments. People sharply disagree over whether to prolong mere biological life, or whether to sustain the life of patient who is endlessly dependent on intensive care. The problem to be discussed here is whether or not effects provided by medical interventions are beneficial, but not whether or not there exists any effect. Many "futility" cases have been concerned about what effects are beneficial or cost-effective. Therefore, "value-free," physiological definitions of medical futility are unnecessary in clinical settings.

3. Are physicians entitled to make value-laden futility judgments?

Who should decide when medical treatment is futile? Can we expect the general public or public officials to decide when interventions are futile in emergent situations or in every individual case? This would be a very difficult task. These people would probably disagree on what is valuable and how to decide the quality of life. Society as a whole ideally is the best decision-maker about the value of life, but it would take too much time for the society to reach conclusions in this regard. In clinical settings, decisions have to be made immediately. Therefore, value judgments regarding medical futility have to be made within a limited time frame by a limited number of individuals involved in most cases. Involvement of court decisions in the US may be exceptional and courts in many other countries might not work as well as in the US.

Virtually all kinds of values figure in biomedical practice. Personal values qualify organic values. Health care must also have moral as well as physiological dimensions (6). Someone has to decide when medical treatments are futile. The question is whether physicians are qualified as people able to make sound judgments about the potential futility of medical interventions. I believe that they can be effective judges in value under certain conditions. In this section, I will elaborate on this idea.

First, physicians constitute a unique population because they have had substantial exposure to patients who are comatose, terminally ill, demented, or very elderly. They also have direct experiences caring for patients receiving hemodialysis, CPR, and the other intervention (7). In this sense, their value judgments are well informed and based on a certain tendency of fact. Physicians' training and experiences would tell them that a miracle is just a miracle in almost all cases. Of course, physicians may not know very much about a patient's personal value or their desired goals of medicine. Nevertheless, they know what patients in a similar situation are like in general. They know a group of patients in similar circumstances. The beliefs on which physicians base their value judgments are more realistic than those of patients or their family, although there might be some exceptions. In addition, they are less involved emotionally in cases than a patient's family. Therefore, if sufficient information and psychological calmness can make value judgments more appropriate, physicians' value judgments about general states of patients in a certain situation can be as good as those of the patient, family, and other people.

Second, as Morreim argues, the practical problem regarding medical futility is not disagreement over value or goals, but it concerns coercion and the threat of it. When the value clash is essentially intractable, a person can only prevail in a dispute by forcing unwilling others to go along with his plan (8). Suppose a physician is in charge of the care of a PVS patient and he cannot help but believe that the life of the patient has no value because the patient is no longer a person. On the other hand, family members of the PVS patient believe that a mere biological life is valuable. The family members are well informed and appreciate the fact that the patient is just some kind of a vegetative body. They have acknowledged that the patient would never regain his consciousness; that he has not received any benefits from current medical interventions; and that he cannot be regarded as a person in any normal sense. They have also acknowledged that use of medical resources to care for the patient might be a waste of money. Nevertheless, the family sincerely thinks that it is worthwhile to keep him alive because they believe that mere biological human life itself is valuable. I believe that most family members of PVS patients who desire to keep the patients alive share this view. Can the physician refute the moral judgment of the family rationally? In this case, he and the family seem to share all the facts about present situations and outlook of the patient. The disagreement between the physician and the family happen at a most fundamental level. When the question of value is extremely basic, then defending and refuting such a value judgment rationally could sometimes become impossible. The physician could not use any arguments to support his conclusions when the family has already known his reasoning and judged them morally irrelevant. The same may be true of futility judgments and a person can only prevail in a dispute by forcing unwilling others.

I believe that imposing one's value on others is one thing and having a certain position about value is the other. Physicians should establish their ethical attitudes in physician-patient relationships, but I strongly object to physicians' imposing their value judgments on patients and their family in any situation. In most "futility" cases, physicians must not withhold information about medical interventions that they believe are futile. It is essential for physicians to obtain informed consent about their value judgments from patients and their family. Only intervention that has no physiological rationale can be omitted from information given to obtain informed consent. Physicians, patients, and family have to determine what medical effect is beneficial together. What physicians have to do in the discussion is to make recommendations based on their value judgments. They should not tell patient's family that artificial feeding is not medically indicated for patients in PVS. They must tell them that they believe that quality of such life is extremely low and continuing the life is not worthwhile. The family may agree or disagree over physicians' value judgments.

Third, value judgments made by physicians can be sound when physicians are aware that they are making value judgments, not medical judgments. Many physicians unknowingly put their value judgments into their medical decisions in order to determine medical indication of an intervention. They would not discuss medical indication with patients or their family because medical indication is purely based on physiological rationale. Determination of medical indication has nothing to do with value. Antibiotics has no medical indication for viral infection. This is absolutely true. However, physician cannot say that hemodialysis has no medical indication for renal failure of irreversibly unconscious patients. When the intervention is effective to exclude toxic materials and excessive water from the patients, it has medical indication.

Fourth, there are many barriers to a physicians making sound value judgments. In the era of managed care, physicians have financial incentives not to use expensive treatments. Their motivation of care could be biased by their own research interest. Some physicians could determine futility based on arbitrary age standard. Therefore, it is essential for physicians to be aware that they are making value judgments about medical interventions and recognize that value judgments could be biased by self-interest. It is also important for them to admit that physicians have no expertise in value judgments about individual cases. Such awareness could prevent physician from being arrogant and from one engaging idiosyncratic behaviors. Advocates of value-laden futility should be always reminded of objections that the opponents claim against it.

In conclusion, despite its shortcomings, the concept of medical futility is useful to express physicians' value judgments regarding patient's life and medical effects. It should be used in the form of recommendation in the process of informed consent. I believe that experienced physicians' value judgments can be well informed and based on appropriate interpretation of facts. As far as physicians can be aware that they make judgments based on values, not medical expertise, they could overcome various barriers to fair and sound value judgments.


References

1. Schneiderman LJ, Jecker NS, Jonsen AR. Medical futility: Its meaning and ethical implications. Ann Intern Med 1990; 112: 949 -54.
2. Beauchamp T, Childress J. Principles of biomedical ethics (4rd edition). New York: Oxford University Press: 1994. 212-215.
3. Lo B. Resolving ethical dilemmas: A guide for clinicians. Baltimore: Williams and Wilkins. 1995. 73 - 81.
4. Childress J. Practical reasoning in bioethics. Bloomington and Indianapolis. Indiana University Press. 1997. 163 - 166.
5. Schneiderman LJ, Jecker NS, Jonsen AR. Medical futility: Response to critiques. Ann Intern Med 1996; 125: 669 -74.
6. Ogletree T. Value and valuation. Encyclopedia of bioethics. Vol 5. 2515 - 2520.
7. Gillick MR et. al. Medical technology at the end of life. Arch Intern Med. 1993; 153: 2542 - 2547.
8. Morreim EH. Profoundly diminished life: The casualties of coercion. Hasting Center Report. January-February 1994. 33 - 42.


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