Absence of Legal Solutions for Medical Futility = Legal Problems for Pandemic Planning
Posted Oct 17 2009 10:01pm
In a recent article in the Globe and Mail, two health professors explicitly link the absence of legal guidance on when treatment may be unilaterally refused on the grounds of non-benefit, with the need for guidance on when treatment may be be unilaterally withdrawn on the grounds of allocation in a pandemic.
Pointing to the recent Jin and Golubchuk cases, the authors rightly observe that the courts are too slow to handle these cases. Indeed, they are so slow that "a delayed decision can be an actual decision." During the time of the TRO or preliminary injunction, the patient dies. The courts almost never rule on the substance or merits of the case. But the "legal procedural grounds" affected the practice of medicine all the same.
Since some patients and family members will likely disagree with a pandemic committee's allocation decisions, legal challenged to protocols or their application seems probable. As legal; review usually is (and should be) permitted in treatment denial and other liberty-limiting decisions (like quarantine), we need an accelerated judicial decision making process.