NICE has posted a 70-page draft quality standard on end-of-life care. It will remain open for consultation through next month.
The Best Interest Standard: Keep or Abandon?
In the just-published Summer 2011 edition of The Journal of Clinical Ethics, Douglas Diekema wrote "Revisiting the Best Interest Standard: Uses and Misuses." I wrote a response titled "The Best Interest Standard: Both Guide and Limit to Medical Decision Making on Behalf of Incapacitated Patients." I have copied both abstracts below.
Diekema: The best interest standard is the threshold most frequently employed by physicians and ethics consultants in challenging a parent’s refusal to provide consent for a child’s medical care. In this article, I will argue that the best interest standard has evolved to serve two different functions, and that these functions differ sufficiently that they require separate standards. While the best interest standard is appropriate for choosing among alternative treatment options for children, making recommendations to parents, and making decisions on behalf of a child when the legal decision makers are either unable to make a decision or are in dispute, a different standard is required for deciding when to seek state interference with parental decision-making authority. I will suggest that the harm principle provides a more appropriate threshold for determining when to seek state intervention than the best interest standard.
Pope: In this issue of JCE, Douglas Diekema argues that the best interest standard (BIS) has been misemployed to serve two materially different functions. On the one hand, clinicians and parents use the BIS to recommend and to make treatment decisions on behalf of children. On the other hand, clinicians and state authorities use the BIS to determine when the government should interfere with parental decision-making authority. Diekema concedes that the BIS is appropriately used to “guide” parents in making medical treatment decisions for their children. But he argues that the BIS is inappropriately used as a “limiting” standard to determine when to override those decisions. Specifically, Diekema contends that the BIS “does not represent the best means for determining when one must turn to the state to limit parental action.” He argues that this limiting function should be served by the harm principle instead of by the BIS.
I contend that we should not reassign the BIS’s limiting function to the harm principle. In this article I make two arguments to support my position. First, the BIS has effectively served, and can serve, both guiding and limiting functions. Second, the harm principle would be an inadequate substitute. It cannot serve the limiting function as well as the more robust BIS.
Voluntarily Stopping Eating and Drinking
My article with Lindsey Anderson, "Voluntarily Stopping Eating and Drinking: A Legal Treatment Option at the End of Life," which I blogged about in October, was just published by the Widener Law Review: 17 Widener L. Rev. 363-428 (2011).
Streamlining the Process for Removing Life Support from Vegetative Patients
It is difficult to find precise figures, but experts believe there could be as many as 5,000 people in the UK
Unfortunately, there is evidence families are not routinely being told of all the options open to them. And even when families have made an informed decision to withdraw treatment and allow their loved-one to die, the court process involved can be beset with lengthy delays. (BBC News)
Professor Lynn Turner-Stokes is chair of a Royal College of Physicians working party which has been set up to review the issues around the diagnosis and care of vegetative patients. The Royal College of Physicians' review began in May 2011, and is expected to last at least 18 months.
Betancourt to be Codified? No Futility Law in New Jersey
In last year's Betancourt v. Trinitas Hospital case, leading New Jersey medical associations asked the Appellate Division for permission to unilaterally withdraw life-sustaining treatment that providers deemed medically inappropriate. The court refused to grant that permission, suggesting that such permission should instead be sought from the Legislature. The Court wrote: "The issues presented are profound and universal in application. They warrant thoughtful study and debate not in the context of overheated rhetoric in the battlefield of active litigation . . . but in thoughtful consideration by the Legislature . . . ."
It does not look like the New Jersey Legislature will be granting any Texas-type safe harbors for unilaterally refusing non-beneficial treatment. A few days ago, A.B.4098, an all-purpose default surrogate decision maker bill, was favorably reported out of committee. Section 2(n) of that bill provides:
if a surrogate directs the provision of life-sustaining treatment for a patient, the denial of which in reasonable medical judgment would be likely to result in the patient’s death, a health care facility or health care professional that does not wish to provide that treatment shall comply with the surrogate's decision pending: transfer of the patient to a health care facility or health care professional willing to receive the patient; or a review of the matter by a court of competent jurisdiction
Offensive Medicine: Animated Video Cariacature of End-of-Life Medicine
A great deal of discussion of medical futility focuses on surrogates and on therapy given as a result of defensive medicine. But the amount of non-beneficial treatment demanded by surrogates pales in comparison to the amount of unwanted interventions foisted onto patients by physicians.
In other words, there is far more offensive medicine than defensive medicine. This is colorfully illustrated in this seven-minute Xtranormal video. [Hat Tip: Pallimed and Happy Hospitalist]
In other words, there is far more offensive medicine than defensive medicine. This is colorfully illustrated in this seven-minute Xtranormal video. [Hat Tip: Pallimed and Happy Hospitalist]
American Bar Association Resolution againt Overly Aggressive Treatment
Three years ago (here too), I proposed deterring overly aggressive end-of-life treatment through the increasingly-wielded False Claims Act. I just noticed that, a few weeks ago, the ABA will be considering a similar Resolution at its August 2011 annual meeting in Toronto.
The Resolution, earlier approved by the Commission on Law and Aging observes that "the threat of lawsuit does not adequately deter unwanted treatment." The Resolution:
calls on the Centers for Medicare and Medicaid Services (CMS) to take preventive and corrective action in response to evidence that some institutional and individual health care providers are violating their obligations under the Medicare and Medicaid Conditions of Participation(CoPs), thwarting the treatment wishes expressed by terminally ill patients, and seeking reimbursement for these practices. Evidence suggests that this kind of violation of the CoPs are due to both providers’ and institutions’ belief that their legal obligations to provide the standard of care and honor the expressed wishes of patients may be ignored without jeopardizing federal reimbursement for services provided contrary to patient wishes.