Who Decides the Harm in “Do No Harm?”

 

By Wesley J. Smith

Editor’s Note: In his excellent piece Wesley Smith sounds the alarm about a Canadian board that typifies the push to deny life-saving medical treatment against the will of patients and families on both sides of the border. National Right to Life is more pessimistic than he is about the “rarity” of these cases – see ww.nrlc.org/uploads/medethics/WillYourAdvanceDirectiveBeFollowed.pdf. And in our view the circumstances in which health care providers should be able to coerce denial of treatment should be limited to physiological futility – only when, in reasonable medical judgment, withholding or withdrawal of the desired treatment would neither cause nor hasten the patient’s death.

Julie Cheah holds a photo of her late husband, Mann Kee Li. Cheah, who went to court to dispute a "do not resuscitate" code on his hospital chart, says she was not told of the Ontario panel that mediates in such cases. RICHARD LAUTENS / TORONTO STAR

Julie Cheah holds a photo of her late husband, Mann Kee Li. Cheah, who went to court to dispute a “do not resuscitate” code on his hospital chart, says she was not told of the Ontario panel that mediates in such cases.
RICHARD LAUTENS / TORONTO STAR

Medical futility disputes often involve the question of harming the patient. Family/patient believe they should decide what constitutes “harm” in these cases, and that for the patient/family, the greatest harm would be death. Hence, they insist that efficacious treatment to extend life continue–as the way to avoid harm. That is, after all, a fundamental purpose of medicine when staying alive is wanted.

Bioethicists and some doctors believe that they get to decide what constitutes “harm.” Thus, if a patient is unlikely to recover or ever lead a “meaningful” life, they insist on being able to stop wanted treatment.

Religion is also a large factor in many of these situations. The secularist view sees suffering as the worst harm. Many religions, particularly more traditional approaches to Catholicism, Islam, and Judaism, death. Thus, forcing treatment to cease is often viewed as disrespecting freedom of religion.

At the same time, many futilitiarians believe in judging “harm” on a the macro level. They look beyond the patient to perceived emotional harm to the family–and the morale of the reluctant medical team–as well as financial harm to society by “investing” resources on the patient supposedly more wisely spent elsewhere.

So who gets to decide the meaning of “harm” in a particular situation–the patient/family or the technocrats?

Canada has established a bureaucratic board to make these decisions when doctors/bioethicists and patients/families disagree. From the Toronto Star story:

In Ontario, intractable, life-and-death disputes between physicians and patients’ families sometimes end up before a unique provincial body charged with wading into complex issues of medicine, ethics and faith. The little-known Consent and Capacity Board (CCB) — the only one of its kind in North America, perhaps anywhere — is a working laboratory for the most pressing issue facing Canada’s healthcare system: the end of life.

When a physician’s treatment proposal is challenged by a family member whose loved one can no longer communicate their wishes, doctors can make an application to the CCB. The Board then convenes a hearing within seven days, often in hospital board rooms, headed by a lawyer, a public member and a medical professional, typically a psychiatrist.

The panel’s job is a mix of legal arguments and character analysis. It must ultimately determine an incapacitated patient’s “prior wishes” or “best interests.” The panel must then issue a binding order within 24 hours of the hearing’s conclusion — a remarkably fast and economical process relative to the courts.

It seems to me that these futility cases are so relatively few and far between that coercion should rarely–if ever–be used.

These are subjective decisions. Establishing bureaucratic boards would sow mistrust for the system and validate the concept of “death panels.”

And talk about the potential for abuse of power. Why should strangers to the patient be given so much authority, in effect, empowered to impose their values over those of the family?

No. Education and continual mediation should be the watchword. Doctors should be brutally frank about the consequences of continuing care. But barring very rare circumstances, the patient/family should have the final word.

[This appeared at nationalreview.com]