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«I. INTRODUCTION: THE IMPORTANCE OF FUTILITY Despite twenty years of development in patient rights, end-of-life decisions still trouble law and ...»

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The first two ethical positions reflect the current, dominant paradigm both in legal reasoning and in medical ethics. As such, they also represent the outer boundaries of the futility debate. Within those boundaries there exists a realm of uncertainty. The attempts to define futility and to allow physicians to decline to provide futile care react to the uncertainty within the boundaries. I argue that the uncertainty about futility in a particular case means that no firm definition of futility can be adopted. Given equally autonomous agents with different perspectives, a patient and physician can disagree about futility and both be on firm ethical and legal footing.

Contradicting an escape clause for physicians such as that in the UHCDA, this central uncertainty does not mean there can be no guidance. Rather, the second two ethical positions discussed can give some guidance through the uncertainty, while not imposing a precise definition of futility that would violate the boundaries of both patient and physician autonomy. As such, the definition of futility is realized through a process partially, but incompletely, adopted in the UHCDA.

Part II will identify the four common philosophical positions that frame the discussion. Part III will describe how a definitive, technical definition of futility is illusory and fails to account for the legitimate uncertainty and contradiction in end-of-life decisions. Part IV will closely examine the UHCDA and the implicit moral positions it seems to adopt.

Finally, Part V will outline some suggestions that more carefully tailor the law to endorse and support a more fully developed medical ethic as applied to physicians’ medical integrity and futility.

II. PHILOSOPHICAL POSITIONS

Within the bioethical dialogue there are four common positions adopted by physicians and commentators. For the purposes herein, these positions are labeled the utilitarian ethic, the rule-principled ethic, the virtue-role ethic, and the communicative-caring ethic. The utilitarian and rule-principled paradigms have shaped much of the past twenty years of law regarding medical decisionmaking. Given a reversal of roles between patient and physician as to who demands excessive care, the second two ethical positions suggest models that can mediate the potentially irreconcilable, though equally valid, positions as to end-of-life treatment.

The four theories frequently overlap, and strains of each are commonly found both in theory and practice. When faced with questions of futility, 2002] FUTILITY AND THE UHCDA 1223 theorists, physicians, and legal scholars often invoke iterations of these theories. It is important to reveal the underlying assumptions, strengths, and weaknesses of each theory to achieve complete understanding.

This Note briefly outlines each ethical structure and describes the moral position each suggests for end-of-life decisions. We can then identify an ethical stance in regard to futility and hopefully discover how to overcome some of the theoretical and practical limitations imposed by the current law when confronting questions of futility.

A. UTILITARIANISM

Constrained utilitarianism is, perhaps, the common position taken in ethical decisionmaking in medicine. In addition, it also reflects the ascendancy of economic-styled reasoning in law and public discourse.

Applying constrained utilitarianism, physicians and patients frequently balance a number of ends to maximize the good resulting from a decision.

Utilitarianism, an approach based on the theories of Jeremy Bentham and John Stuart Mill, balances good and bad consequences.22 It is essentially a cost-benefit analysis. Unlike Bentham and Mill, however, the utilitarian calculation need not be merely hedonistic. Rather, a broader view of the sum intrinsic good of an action or decision is used to assess the overall “good” of the decision.

The actual application of utilitarianism in common medical reasoning is not as broad as Bentham or Mill suggest. It is rare that medical utilitarianism merely relies on a cost-benefit analysis. It is not a pure, thoroughgoing calculus that determines the good of all decisions, but rather a constrained utilitarianism. Constrained utilitarianism preserves the costbenefit balancing test, but only within a prescribed region. This avoids the pitfalls met by utilitarians facing blatantly immoral options not necessarily captured by a pure calculus.

Within utilitarianism, and even more clearly within medical ethics, there is a split between whether the utilitarian principle should be applied to particular circumstances or general rules. This contrast refers to the rule utilitarian versus the act utilitarian. 23 The rule utilitarian uses the principle of value maximization to formulate general rules to determine which acts are good or bad. In contrast, the act utilitarian applies value maximization

22. See generally JEREMY BENTHAM, AN INTRODUCTION TO THE PRINCIPLES OF MORALS AND LEGISLATION (J.H. Burns & H.L.A. Hart eds., 1996); JOHN STUART MILL, UTILITARIANISM (George Sher ed., 1957).

23. See TOM L. BEAUCHAMP & JAMES F. CHILDRESS, PRINCIPLES OF BIOMEDICAL ETHICS 50–52 (4th ed. 1994).

1224 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 75:1217 to justify specific actions in a particular factual scenario. A rule utilitarian requires that actions conform to a rule, while an act utilitarian justifies the individual act but considers the broader rule expendable.24 Both of these positions are salient to modern ethical questions.





Particularly in questions of allocation, the rule utilitarian approach holds great sway.25 Furthermore, it is utilized to generate some general rules, such as general triage principles. In the complex situations facing physicians, the act utilitarian position—balancing the minute details of the individuals’ physical, mental, and spiritual needs—is also prevalent.

Physicians and patients subjectively weigh many interests, attempting to reach the best balance.

Utilitarian logic can be seen most concretely in proportionality reasoning. 26 In contrast to a dialectic, determinative ordinary/extraordinary distinction in the demand to apply medical technology, proportionality utilizes a balancing test to assess whether an intervention is too invasive or traumatic relative to the good achieved. As the religious roots suggest, the balancing need not be divorced from other moral considerations. In practice, however, the balancing becomes very clear.

Elements of utilitarian considerations are present throughout legalmedical decisionmaking. The utilitarian reasoning is most clearly exemplified in the prototypical case of do-not-resuscitate orders (“DNR”), where an individual in a persistent vegetative state (“PVS”) might elect not to undergo resuscitation. Applying a utilitarian calculus, the trauma of ribcracking compressions and electric shocks could be considered not worth the countervailing goal of prolonging the life of a PVS. Of course, the factors considered might not be merely physical. A surrogate might swing the balance toward continuation of treatment by demanding consideration of a family member’s desire to see the PVS patient before treatment is withdrawn. Both reasoning processes are clear instances of act utilitarianism.

The reasoning above has also been suggested to justify a broader rule of withdrawing treatment. A rule utilitarian would reason that any time a patient is in a PVS, a DNR is the default position. Even more explicitly,

24. See id. at 50–51.

25. Utilitarianism is particularly salient in questions of how moral problems at the end of life affect resource allocation. Indeed, there is a strong argument that the definition of futility has more to do with how society distributes limited medical care. Utilitarian perspectives are particularly prevalent in this macro question. An in-depth discussion is beyond the scope of this Note.

26. Proportionality reasoning stems from the ordinary/extraordinary distinction in Catholic Theology. See, e.g., Sacred Congregation for Doctrine of the Faith, Declaration on Euthanasia (1980), at http://www.nccbuscc.org/prolife/tdocs/euthanasia.htm (last visited Mar. 29, 2002).

2002] FUTILITY AND THE UHCDA 1225 the calculus of balancing the percentage of success against the cost of treatment—both internally to the patient and externally to society— certainly draws on the utilitarian position. On balance, the rule would promote less suffering and would minimize the application of costly and ineffective treatment. Even if an individual case may differ from the rule, the generalized concept would be preserved.

By applying a consistent principle, utilitarianism adopts a universalistic approach through a broadly applicable rule. Yet it is flexible enough that it can vary in the actual result to reflect the vagaries of the facts in an actual medical decision. Utilitarianism in its constrained version has been specifically used to promote beneficence—one of the central themes in modern bioethics. It does so, however, by balancing what is best given the factual situation. 27 B. RULE-PRINCIPLED ETHIC A second form of moral reasoning in medical decisionmaking could be described as reasoned or principled decisionmaking. This theory is characterized by the application of

Abstract

rules or principles to the particular facts of a situation. In contrast to utilitarianism, rule-principled ethics take a deontological approach to moral problems. Particularly relying on the scientific strain of the history of medicine, this structure treats moral questions like logical questions. According to this approach, a rational rule properly applied would result in a correct decision. Further, principled/logical approaches to the law, common in the Anglo-American tradition, draw heavily from the rule-principled ethic.

There are two primary strains within the rule-principled ethic: Kantian and principled. Kantian ethics requires that any decision be 28 More specifically, any decision made at an individual generalizable.

level must be universally applicable. One Kantian formulation has extended this reasoning to require that people be treated as ends and never as means.29 Thus, similarly situated people must be treated similarly.

More importantly, Kantian ethics creates a rationalistic, legalistic framework for moral reasoning, which is attractive—particularly to a field like medicine that binds tightly to science. Furthermore, Kantian logic appeals to moral absolutes. Indeed, one of the criticisms of Kantian

27. See BEAUCHAMP & CHILDRESS, supra note 23, at 293–315.

28. See IMMANUEL KANT, GROUNDWORK OF THE METAPHYSIC OF MORALS 69–71, 74–77 (H.J.

Paton trans., Harper & Row 1964).

29. See id. at 63–67.

1226 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 75:1217 reasoning is that it relies on a universal, external source of moral authority, like theology.

The second form of the rule-principled ethic is principled reasoning.

Like Kantian ethics, there are certain rules that are deduced or selected.

Decisions in a particular situation are derived from general principles.

Also like Kantian ethics, this method presupposes reasonable concepts and assumes a reasoned process from the abstract to a decision in the particular.

Unlike Kantian ethics, however, these rules need not rely on a strictly rational deduction. In a diverse society like ours, such principles are sometimes selected through democratic processes. Furthermore, some of the categorical character of Kantian thought is compromised in recognition of the potentially conflicting dictates of various theories. Historically, a litany, such as that in the Hippocratic oath, represents an instance of a principle-based ethic. The most common and prevalent form of this reason is the four-pronged principles commonly used in medicine: autonomy, nonmaleficence, beneficence, and justice. Without giving answers to individual problems, it provides multiple perspectives and issues to consider and gives tools to derive a class of resolutions.

The ascendancy of autonomy and beneficence in medical decisionmaking is exemplar of rule-principled decisionmaking. 30 Abstract principles are applied to a factual situation, a priori, to assess whether the decision is right or good. Allowing patients to express their interests in advance directives or through surrogates respects their right to control their bodies and not merely be treated as objects of medical technique.

Similarly, the attempt to define futility quantitatively might represent an attempt to produce a reasoned, a priori criterion to be applied to end-of-life decisions. In application, the principles and definitions might provide a consistent and logical guide to determine what treatment is necessary. For example, a definition of futility of a certain procedure that depends on a statistical assessment based on the percentage of success in previous cases could be used to determine the appropriateness of that procedure in the current case. However, both autonomy and quantitative futility may be consistent without being correct. While they define a negative zone of refusal, they may not support a moral position to withhold care. Rather, these principles are considerations that may be overly legalistic or technical given the moral ambiguities in an end-of-life decision.

–  –  –

A third position, one frequently championed by physicians, is that of a virtue ethic. Building on an Aristotelian tradition of wisdom, the virtue ethic seeks to promote the socially valuable quality of moral virtue. As opposed to the rationale programs of utilitarianism and rule-principled ethics, virtue ethics focuses on the actual experience of moral problem solving. Proper moral decisions are fostered through cultivated experience.

The agent focuses not on ideals or principles, but on the practice and cultivation of virtue. It emphasizes the agents who combine motivation and action in performing deeds.31 In its simplest form, this doctrine is expressive of Aristotle’s dictum that a person must both perform the right action and perform it from the proper motivation. 32 In contrast to the theories above, this approach bases morality facts of actual human existence. According to this approach, morality is not realized through application of an idea or calculus, but is instead developed through regular practice and perfection of acts.



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