Executive Summary

Withdrawal of futile treatment often results in conflicts between providers and family members, necessitating an ethics consultation. Some expert strategies for bioethicists include:

• Redirect the conversation toward achievement of goals of care.

• Determine if hesitancy stems from lack of trust in the medical opinion.

• Ask open-ended questions such as “Why?”

 

Conflict surrounding withdrawal of futile treatments is one of the most common reasons for ethics consults being called. “Reported frequency of ethics consultations involving futile care range from 10 to 65%. But futility isn’t a modern construct,” says Blair Henry, BSc, MTS, an ethicist at Sunnybrook Health Sciences Centre in Toronto. In fact, he notes, Hippocrates stated that physicians should “refuse to treat those who are overmastered by their disease, realizing that in such cases medicine is powerless.”1

Nonetheless, discontinuation of futile treatments is a continuing source of conflict and controversy in both bioethics and acute care medicine. “One issue involves the use of the word ‘futile’ and how this is defined by the healthcare team and the family,” says Henry. “Sometimes it’s best not to focus on the issue of futility.” Instead, establish the goals of care. Then, redirect the conversation toward how the goals can be achieved.

“Medical futility can be defined as an action that serves no useful purpose in attaining a specified goal for a given patient,” says Henry. Determining that an action is medically futile can involve decisions to either withhold treatment, or to withdraw treatments that were previously started.

“Physicians are not obliged to offer treatments that they believe would be medically futile,” says Henry. “However, the withdrawal of futile medical treatment is a different matter.” In 2013, a Canadian court ruled that withdrawal of life-supportive care requires the consent of the substitute decision-maker.2 “With the exception of the provision under the Texas Advance Directives Act, most states have similar requirements,” says Henry.

Henry adds that the premise of good medicine always involves two elements: a proposed treatment plan that represents standard of care and one the clinician believes provides more benefit than harm, and consent from the patient or surrogate that signifies their acceptance to undertake the treatment based on knowledge of the risks, benefits and alternatives, and consideration of its congruence with their values and beliefs.

“Frequently, families feel like they are being asked to decide to allow death to occur and that this is their responsibility,” says Henry. “These can be challenging clinical encounters.” Withdrawal of futile treatments typically involves stopping life-supportive treatment such as ventilator support, blood pressure support, or dialysis, in an intensive care unit (ICU) setting and allowing for death to occur. Thus, strong emotions of guilt and grief are commingled with attempts to make a treatment decision. Henry suggests bioethicists utilize the following strategies when dealing with decision-making related to the withdrawal of futile medical care:

• Use goals of care as the basis for medical decision-making.

This takes the focus off specific medical treatments and places it on the goals that the patient, family, and team want to achieve. “This can help reframe difficult conversations by acknowledging the impossibility of achieving the outcome desired as being the reason for changes in the plan of care,” says Henry.

• Consider the legal requirements of the jurisdiction.

“Withholding treatment is a clinical decision; however, withdrawal of treatment typically requires the consent of the substitute decision-maker as stated by law,” says Henry.

• Engage the interprofessional care team.

Chaplains can provide much-needed spiritual care; nurses can support the family struggling to accept a new reality. A consistent message from all healthcare providers is key. “Hearing different messages from various healthcare providers will cause family members to lack trust in the medical team’s judgment,” he says.

• Determine if the family’s hesitancy is related to lack of trust in the medical opinion.

If so, the use of second medical opinions is often helpful. “This shows the family that the plan to withdraw is confirmed by medical professionals not directly involved in the care,” says Henry.

• Consider a trial of continued therapy.

Educate the family on what would be needed from the patient’s clinical presentation to allow for a change of mind to occur. “Staff can stipulate that in the event of further deterioration or organ failure, that no escalation of treatment would be provided,” adds Henry.

Conflict management skills needed

The patient may have made his or her wishes perfectly clear in an advance directive — for example, stating a wish not to be supported by life-sustaining treatments if permanently unconscious. “But if some or all of the family members do not want to limit life support, the providers may feel compelled to continue treatment as a practical matter,” says Charity Scott, JD, MSCM, Catherine C. Henson Professor of Law at Georgia State University College of Law in Atlanta.

Advance directive laws can provide immunity from civil and criminal liability for carrying out patient wishes expressed in an advance directive that meets the legal requirements in the state.

“Nevertheless, even though providers may understand that the law provides for such immunity, they may still be reluctant to follow the patient’s written requests when family members are onsite and vociferously protesting against following them,” says Scott. By the time an ethics consult is called, communication among the parties has often deteriorated. Scott recommends that bioethicists utilize the following conflict management tools for addressing an apparent impasse in these situations:

• Active listening.

“This is probably the most important skill to exercise, in seeking to understand the underlying reasons for the parties’ differing positions,” says Scott. This allows bioethicists to determine what interests, needs, desires, fears, or emotions are underlying someone’s insistence on getting “their way” in a conflict.

“With patience, a bioethicist may learn that a father who staunchly insists on aggressive treatment for his daughter may be feeling guilt or remorse about having moved away from his family during her early childhood,” says Scott.

• Ask open-ended questions.

“Don’t assume that you understand a person’s perspectives and desires from the positions they may take,” says Scott. “‘Why?’ is the classic open-ended question that doesn’t invite a simple yes or no response.”

• Rephrase what you have heard to ensure that you have understood, by stating “Let me see if I understand...”

People often need to feel heard before they will listen to someone else. “That can go a long way to lowering the temperature in a high-conflict situation and creating openness to hearing another person’s perspectives and concerns,” says Scott.

If a bioethicist has not been trained in mediation or conflict management skills, he or she may inadvertently worsen the situation by assuming that legal or ethical principles will prevail and resolve a thorny issue.

“Rarely does either law or ethics mandate a single medical treatment outcome,” says Scott. “Even then, coming to agreement about that outcome is preferable to having someone feel coerced into accepting it.”

References

  1. Kasman, D. When is medical treatment futile? A guide for students, residents, and physicians. J Gen Intern Med 2004; 19(10): 1053-1056.
  2. Cuthbertson v. Rasouli, 2013 SCC 53, [2013] 3 S.C.R. 341

SOURCES

• Blair Henry, Ethicist, Sunnybrook Health Sciences Centre, University of Toronto, Ontario, Canada. Phone: (416) 480-6100 ext. 7178. Email: Blair.henry@sunnybrook.ca.

• Charity Scott, JD, MSCM, Catherine C. Henson Professor of Law, Georgia State University College of Law, Atlanta, GA. Phone: (404) 413-9183. Fax: (404) 413-9225. Email: cscott@gsu.edu.