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Futility Disputes - Patient Transfer Not Possible or Even Ethical

Posted Jun 10 2009 4:44pm

In the current issue of the American Journal of Critical Care, Lisa Day has an article titled “Medical Futility, Personal Goods, and Social Responsibility. She correctly characterizes medical futility disputes as increasingly common, with the growth of both the critical care population and the range of deployable life-sustaining medical technology.

However, Day’s optimistic assessment of current mechanisms for handling these intractable futility disputes is misplaced. Day writes that when a patient or surrogate requests treatment that the provider determines is inconsistent with the goals of medicine or with his or her conscience, then, unless consensus can be reached, the treatment relationship should be “dissolved” and the patient should look for a new provider. As reflected in its wide adoption in institutional futility policies, transfer appears to be a satisfactory compromise solution: it both allows the current provider to avoid providing inappropriate treatment and allows the patient to get the treatment that he or she desires.

But Day wrongly implies that transfer is a “real” option. In fact, patients and surrogates are almost never able to find a new provider or facility. Potential transferees either share the same treatment goals as the purported transferor or are loath to voluntarily accept a conflict-ridden case. Unable to transfer the patient, the treating provider is typically legally compelled to continue providing the requested treatment, notwithstanding the affront to professional and/or personal values. Unfortunately, we still have quite limited mechanisms with which to handle the significant (and growing) subset of futility disputes that cannot be resolved through good communication or mediation.

Day broadens the classic debate by focusing on providers’ stewardship and public health responsibilities. In the final two sections of her article, Day suggests that even transfer might not be a legitimate solution because it can be unfair to the broader community. But again, Day may be too optimistic about attempts to identify inappropriate treatment to which nobody has a “right.” Due to significant variation among what different providers deem appropriate and beneficial, such attempts will surely run into the same definitional “impasse” that Day describes in the beginning of her article. Notably, even the newFederal Coordinating Council for Comparative Effectiveness Research Councilwill not recommend clinical guidelines for treatment. Nevertheless, its work and the increasingly relevant work of others should inform the social debate on the rational allocation of resources that Day rightly argues must be expanded.

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