Royal Society of Canada Report Addresses Medical Futility

The Royal Society of Canada has just released a report titled "End of Life Decision Making."  It covers a range of issues from palliative care to terminal sedation to assisted dying.  It also addresses medical futility.  Here is an excerpt on medical futility:

There is extraordinary conflict over what the law on this matter should be. Many papers have been published in the ethics and medical literature; many columns of ink have been spilled in the popular press. It has been argued in the literature that, if the health care team believes requests for specific treatments by substitute decision-makers are not in the best interests of the patient, the decision to withhold or withdraw treatment should rest with the health care providers. Others maintain that the decision should rest with the substitute decision-makers, or that conflicts between the health care team and the substitute decision-makers should be resolved by society (through the courts or some form of specialized tribunals). Statements from the courts or the legislatures will be needed to resolve the confusion and controversy in this area. . . .

The current approach of leaving the resolution of the confusion and controversy to the courts does not serve anyone well. Family members of dying patients and health care providers find themselves locked in conflict; one side often feeling that they are fighting for their loved one’s wishes and interests and the other side often feeling that they are fighting for the patient’s interests and their own professional integrity. Litigation often seems the only route for conflict resolution and yet it is deeply corrosive of important relationships and distracts the participants from spending time with and caring for the patient. Furthermore, given the physical condition of most patients involved in such cases and given the time required for a case to work its way through the court system (especially for a matter of unsettled law), the results of litigation are often deeply unsatisfying for all involved. . . .

A position on the unilateral issue can therefore only be adopted following a thorough review of the implications across the spectrum of potential applications. Again, since such a review would fall outside the time limits, mandate, and expertise of the Panel, the Panel determined that it would be inappropriate for it to make specific recommendations with respect to how the controversy identified in Chapter Two should be resolved. However, the Panel concluded that action is necessary to prevent a continuation of the cycle of damaging and inconclusive litigation.

In order to eliminate confusion and reduce the conflict and controversy surrounding unilateral withholding and withdrawal of potentially life-sustaining treatment, the Panel recommends the following:

1. Provincial/territorial governments should ensure that their consent legislation and health care professional regulators should ensure that their policies make it clear when, if ever, health care professionals have the legal authority to unilaterally withhold or withdraw potentially life-sustaining treatment.

2. Health care professional educational institutions and regulators should ensure that their trainees and members understand their legal obligations with respect to unilateral withholding or withdrawal of potentially life-sustaining treatment.

3. The provincial/territorial governments should educate the public regarding the legal status of unilateral withholding and withdrawal of potentially life-sustaining treatment so that they can better advocate for themselves and their loved ones and better communicate with health care providers.