The Courts, Futility, and the Ends of Medicine
Thaddeus Mason Pope
Mitchell Hamline School of Law; Australian Health Law Research Center, QUT; Saint Georges University; Alden March Bioethics Institute
affiliation not provided to SSRN
January 1, 2012
Journal of the American Medical Association, Vol. 307, No. 2, pp. 151-152, 2012
On August 13, 2010, the Appellate Division of the Superior Court of New Jersey declined to rule in the matter of Betancourt v. Trinitas Hospital, a case that raised questions about the limits of medicine in patients with advanced illness. In declining to rule, the judges wrote that resolving such issues in “the context of overheated rhetoric in the battlefield of active litigation” would not positively contribute to the policy debate around medical futility. These comments raise important questions about whether there is a role for the courts in helping to shape the boundaries of medical practice near the end of life.
One view is that courts should not provide guidance on medical futility disputes. Texas has formalized this belief into law. The Texas Advance Directives Act bars substantive judicial review when intractable conflict arises between clinicians and patients or their surrogate decision makers. It gives physicians and hospital committees authority to unilaterally withdraw life-sustaining treatment when they believe attempts to extend a patient’s life are inappropriate. The state medical associations in California, Washington, and Wisconsin have considered resolutions supporting similar legislation. Another view is that he possibility of appeal to the courts should be preserved because courts have an important role in ensuring fair deliberations between parties (e.g., families and physicians) of unequal power.
Both perspectives neglect a complexity: although judicial intervention is undesirable for the vast majority of decisions in medicine, preserving the possibility of appeal to the courts in medical futility cases may have beneficial effects at the societal level that are distinct from the benefits sought in individual cases. This viewpoint presents a justification for the limited judicial role in intractable futility disputes and delineates three potential benefits of preserving this option.
Keywords: medicine, death, dying, advance directives, Betancourt v Trinitas hospital, healthcare, end of life, life-sustaining, medical futility
JEL Classification: K32
Date posted: February 27, 2012
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