Ashley Bassel has a timely student note [ PDF here ] in the latest issue of the Vanderbilt Law Review titled "ORDER AT THE END OF LIFE: ESTABLISHING A CLEAR AND FAIR MECHANISM FOR THE RESOLUTION OF FUTILITY DISPUTES." Here is the introduction:
*493 The medical staff at Trinitas determined that Mr. Betancourt was in an unresponsive, irreversible vegetative state and that further treatment would be futile. [FN5] As such, they recommended to the patient's family that life-sustaining treatment be discontinued. [FN6] The family disputed the hospital's findings, claiming that the patient responded to certain stimuli. [FN7] Namely, they insisted that the patient recoiled when approached by medical providers, responded by opening his eyes, and turned his head in response to certain voices. [FN8] The family further described Mr. Betancourt as a “strong willed person who would not give up,” thus leading them to believe that he would want to continue to receive treatment. As a result, the family insisted that the healthcare provider uphold this choice. [FN9] What should the healthcare provider do in this scenario? If disagreement persists, how should the surrogate decisionmaker respond?
The above example illustrates a futility dispute, which arises when a patient's surrogate decisionmaker wishes to prolong treatment that the healthcare provider has deemed medically ineffective. [FN10] A futility dispute differs from a traditional end-of-life dispute, in which the surrogate seeks to withhold or withdraw life-sustaining treatment while the physician believes that treatment should be continued. [FN11] In this context, the law recognizes a patient's constitutional and common law right to refuse treatment. [FN12] By contrast, a futility dispute, also known as a “reverse” end-of-life dispute, occurs when a patient or surrogate wants to compel a physician to provide treatment that the physician deems medically inappropriate. [FN13] Most futility disputes involve situations in which the treatment definitely or probably affords the patient some physiologic benefit but offers no reasonable prospect of recovery. [FN14] The fundamental disagreement of a medical futility dispute is whether to forgo life-sustaining treatment.
*494 Even when life-sustaining treatment is withdrawn, physicians remain obligated by ethical [FN15] and legal standards of care [FN16] to continue palliative care, which relieves pain and helps comfort the patient. [FN17] Some states have even codified the requirement that palliative care be provided when life-sustaining treatment is withdrawn. [FN18] In addition to providing care to relieve pain and suffering, healthcare providers generally will make short-term accommodation of the surrogate's wishes in order to facilitate the grief process, to allow family members to say goodbye, and to respect the family's personal values. [FN19] Yet, surrogates often are not satisfied with a doctor's decision to provide these forms of care instead of life-sustaining treatment, resulting in a futility dispute. [FN20]
*495 Currently, no legal consensus exists regarding the proper resolution of futility disputes. [FN21] However, courts, commentators, and healthcare providers generally agree that the courtroom is not the appropriate venue to resolve these disputes. [FN22] The Betancourt futility dispute, in which the patient's daughter eventually initiated court proceedings to prevent the withdrawal of treatment, demonstrates this consensus. [FN23] In support of the position that treatment should be discontinued, several treating physicians testified that Mr. Betancourt was “actively dying,” that his body was “decomposing and often septic,” and that dialysis treatment was “medically and ethically inappropriate and inhumane.” [FN24] The physicians further explained that the patient's movements, which the family believed demonstrated Mr. Betancourt's responsiveness, were entirely reflexive. [FN25] Nonetheless, the court held that “the decision to continue or terminate life support systems is not left to the courts,” and instead appointed the plaintiff as the legal guardian and granted her request for injunctive relief to restrain the hospital from discontinuing treatment. [FN26]
If the resolution of futility disputes “is not left to the courts,” as the Superior Court of New Jersey and many other courts have held, then who must make these decisions? Lacking a legislative or judicial answer to this question, most healthcare institutions have established internal mechanisms to resolve ethical disputes that arise at the end of life. [FN27] In over 90 percent of the hospitals providing ethics *496 consultation, a full ethics committee or a small team of individuals performs ethics consultation. [FN28] Accordingly, this Note will focus on the group model of consulting, using the term “ethics committee” to refer to any group of individuals designated by a healthcare institution to address ethical issues involved in a specific, active clinical case.
Even though ethics committees are typically considered advisory bodies that make only recommendations, they often provide the effective forum of last resort in the context of a futility dispute. [FN29] One would assume that impartiality would be a defining quality of a group vested with such authority to render life-or-death decisions, yet ethics committees are actually internal bodies comprised primarily of hospital staff. [FN30] This relationship creates a substantial risk that inappropriate considerations will influence ethics committee decisions to continue or withdraw life-sustaining treatment. [FN31] For example, committee members may be improperly influenced by the financial effects of their decisions, fear of liability, or inherent professional relationships. [FN32] Yet despite these risks, ethics committees in almost all states remain free from any substantive or procedural regulation. [FN33]
*497 Any solution to this problem must uphold the patient's right to make autonomous medical decisions while at the same time respecting the physician's right to refuse to provide treatment that is medically ineffective. [FN34] Furthermore, it must provide a clear, statutory procedure for resolving futility disputes that incorporates fundamental due process protections. [FN35] Most importantly, the mechanism for resolving futility disputes must not only prohibit those who have conflicts of interest from making medical decisions on behalf of incompetent patients; it also must bar improper considerations, including financial, legal, or professional concerns, from shading the final decision. [FN36]
In order to ensure that incompetent patients are adequately protected as they are nearing the end of life, this Note argues that states should establish state and local medical decisionmaking boards to resolve futility disputes. Modeled after the Iowa SMDBs, these boards would have procedural and substantive requirements that would prevent improper interests from affecting decisions regarding medical treatment. Part I of this Note describes the background of futility dispute resolution. Part II then considers the conflicts of interests inherent in institutional ethics committees, which many healthcare institutions, courts, and states have vested with considerable decisionmaking power. Because of the internal nature of these committees, they cannot and should not be expected to render impartial decisions. Thus, Part III proposes that the proper response to this futility dispute problem lies in creating independent medical boards that would operate under procedural and substantive regulations to ensure their impartiality.