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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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These definitional approaches do result in consistency, but they rely too much on a static concept of what is appropriate. Before even considering the facts of the situation or the individual patient, a judgment has been made determining the duty and course of action. Such an approach fails to consider adequately the patient’s goals and wishes. In Wanglie, for example, a strict definition would have absolved the physician from any duty on both quantitative and qualitative grounds. While this would have solved the case and allayed care-provider concerns about being forced to provide futile care, it ignores the complex ethical differences between designing treatment and deferring to the expert. Assuming that it was the appropriate course of action to withdraw treatment from Wanglie, doing so unilaterally defies our ethical sensibility about her and her surrogate’s moral position, and reinvokes the specter of medical paternalism.

Another approach defers judgment to institutional policies that enable a nuanced exercise of medical judgment. One definition includes a fourpart approach that defines a treatment as futile if: (1) current medical standards do not indicate reasonable probability of recovery; (2) it imposes a burden disproportionate to the benefit; (3) it does not mitigate discomfort;

and (4) it artificially postpones death through “sustaining, supplanting, or restoring vital functions.”62 Rather than a simple yes or no on whether treatment is futile, this approach incorporates a cost-benefit analysis. In

58. Id. at 516.

59. Id. at 520–21.

60. Id. at 526–29.

61. Id. at 529–30.

62. Levine, supra note 4, at 76.

2002] FUTILITY AND THE UHCDA 1233 accordance with the common law tradition of proportionality and balancing, it employs a utilitarian calculus to supplement definitional absolutes.

This ultimately places the decision process on the integrity of the careprovider to balance a variety of technical and moral decisions. Not predetermining an outcome, this approach focuses on the factual details, acknowledging the individual vagaries inherent at the nexus of moral and technical decisions at the end of life. The responsibility for the weighing of differences rests, however, on the care-provider. Given the twenty-year departure from paternalism in medicine—even the benevolent Hippocratic paternalism—it appears that this second approach does not fully capture an appropriate method to determine futility. Rather, it returns to absolute physician determination. While, unlike the first approach, it does allow for a more nuanced assessment of the situation, it still relies on technical and experiential expertise that might not eliminate the type of conflict seen in cases like Wanglie, where patient and physician come to an irreconcilable impasse.

A third approach suggests that treatment be judged on whether it helps the patient reach the benefit sought, but does not assume a narrowly defined benefit. 63 This approach relies more on the caring-communicative approach. A patient’s goal, as reflected in the virtue approach suggested above,64 is often full restoration of health. This assumes future life goals.

Thus, simple surgery like an appendectomy is useful and not futile because it restores health and future life projects. At the frontier of end-of-life decisions, as when considering ventilation for someone in a PVS, the goals require refinement. As such, the refined goals of a conservator or an advance directive must be determined in the course of treatment—not only after the process has degenerated into conflict. If the goal for a PVS patient were full recovery, continued treatment would be futile. If the goal were allowing family contact before death, continued treatment would not be futile. Thus, futility in a caring-communicative sense depends on the reality and meaning created through communication.

In a broad sense, futile treatment need not be continued, because continued treatment would not conform to the goals. Anything futile need not be pursued. But determining what is futile in context is the true challenge. The determination of the goals of treatment, the real content of the futility determination, varies greatly. An approach that varies futility based on a shared definition—reflecting the variety—is fostered by the

63. See id. at 76–77.

64. See supra Part II.C.

1234 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 75:1217 caring-communicative method. Furthermore, more than the other approaches, it opens the door for goals that are impossible, not shared, or conflicting. While this ambiguity is intuitively problematic, it reflects the failure of society to resolve these troublesome issues. Counter to our legal intuition, opening this door to conflict does not mean that the approach is incorrect. The ironic fact that caring-communicative reasoning allows for irreconcilable conflict reflects society’s irreconcilable differences and diversity in the arena of end-of-life decisions.

Futility is not merely a medical determination. It must include the patient, not merely the physician. 65 Honoring the ethical integrity of the medical profession may require some recognition of futility,66 but this does not mean that this must be a firmly defined futility. Moreover, futility is not merely a technical decision. Indeed, any time a decision requires a determination of whether something is good or bad, or whether an action ought or ought not be done, it is likely that there is a moral decision being made.67 Merely relying on a technical assessment suggests that the appropriate moral decision can be pushed back onto a factual determination. This is not true. Simply because a treatment is only of marginal success does not mean that it ought not be pursued. Such reasoning belies a moral decision being made about the value of percentages and scientific assessments of success and adopts the fundamental flaw in Kantian moral reasoning.





Futility also includes technical ambiguities about the goals of treatment and the aspirations of the caregiver and the cared-for. Given the inherently ambiguous moral, ontological, and existential issues surrounding futility, it cannot simply be defined away. The ambiguities must be allowed, though not given so formless an area of consideration that no guidance is provided. Law is challenged to create a space that enables the varied and diverse conclusions about futility but still ensures that neither patient’s nor physician’s rights are trammeled. This requires a broad check on the form of reasoning, but one that permits differences among the outcomes.

–  –  –

The UHCDA does not actually use the term futility, opting instead for the terms “medically ineffective health care or health care contrary to the generally accepted standards.”68 At the same time, however, it recognizes the moral component of the physician’s role, allowing the physician to object to treatment as a matter of conscience.69 While not explicitly referencing futility, the UHCDA clearly enacts an approach to medical decisions that deal with the moral and technical ambiguities at the end of life. While avoiding the politically volatile term, the statute clearly intends to address the topic of futility. It foresees the conflict between the important considerations of patient autonomy and those of the physician’s role. An extension of patient autonomy suggests that any failure to follow the dictates would be medical paternalism. 70 Yet, the reverse—that a patient’s commands usurp the physician’s role and discretion—are also of concern. The UHCDA attempts to address these concerns by guiding some decisions through futility.

In an attempt to address end-of-life decisions, the UCHDA subsumes the physician’s technical and moral authority into traditional themes, common law traditions, and duties regarding patient decisions. It also attempts to set a new path that endorses a broad approach to addressing the diversity of challenges presented.

A. PURPOSE OF THE UHCDA

The UHCDA was passed primarily to codify the concept of a patient’s control over decisions that affect that patient’s life, particularly in an era of increased impact of medical technology. 71 It adopts the position that medical technology factually extends life in a dying process. While seemingly basing the patient’s rights on ruled-principled ethics, in granting the physician’s right to decline treatment, the statute adopts a more complex moral position. Care-providers are expected to respect patient autonomy. 72 Physicians are allowed, however, to invoke their own moral positions to trump the patient’s autonomy.

68. See CAL. PROB. CODE § 4735 (West 2000).

69. See id. § 4734.

70. SCHNEIDERMAN & JECKER, supra note 37, at 57 (citing Troyen A. Brennan, Silent Decisions:

Limits of Consent and the Terminally Ill Patient, 16 L. MED. & HEALTH CARE 204, 204–09 (1988)).

71. See Zolla & Zolla, supra note 8, at 42.

72. See CAL. PROB. CODE § 4733 (West 2000).

1236 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 75:1217 Moral and technical disagreements between patient and provider lie at the heart of futility. Once a controversy exists between the end-of-life decisions of a physician and patient, a diverse set of actions, requiring patient-provider communication, proper identification of duties, and respect for the physician’s independence and expertise are activated under the law.

This statute ultimately needs further clarification if it is to provide adequate guidance.

B. FOUNDATIONS OF PATIENT’S AUTONOMY AND THE UHCDA

The justification for the UHCDA provides insight into the moral assumptions throughout the law. While in many ways merely codifying case law and consolidating previous statutes, the factual assumptions and identification of the problem being addressed determine the approach to

end-of-life decisions:

The Legislature finds the following:

(a) In recognition of the dignity and privacy a person has a right to expect, the law recognizes that an adult has the fundamental right to control the decisions relating to his or her own health care, including the decision to have life-sustaining treatment withheld or withdrawn.

(b) Modern medical technology has made possible the artificial prolongation of human life beyond natural limits. In the interest of protecting individual autonomy, this prolongation of the process of dying for a person for whom continued health care does not improve the prognosis for recovery may violate patient dignity and cause unnecessary pain and suffering, while providing nothing medically necessary or beneficial to the person.

(c) In the absence of controversy, a court is normally not the proper forum in which to make health care decisions, including decisions regarding life-sustaining treatment.73 The legislature clearly begins from the assumption that a ruleprincipled reasoning serves as the foundation for end-of-life decisions. By referring to the rights of privacy and dignity, it invokes a rights-based regime as the moral underpinning. This moral assumption echoes the case law, which, since In re Quinlan, has relied on autonomy principles. The ethical position is further reinforced by the adoption of a potentially quantitative definition in subsection (b).74 In moving toward questions of futility, however, it refers to the ontological fact of our own technical

73. CAL. P ROB. CODE § 4650 (West 2000).

74. See id. § 4650(b).

2002] FUTILITY AND THE UHCDA 1237 limitations. It backs away from a purely theoretical determination, suggesting that decisions at the edge of the moral frontier that incorporate complex law and technology are beyond the reach of the court system.

Nevertheless, the rights, limitations, and common law tradition are embedded as the constraint on ethical decisions. The patient’s autonomy means that her direction in treatment must be respected, and against this, other considerations and decisions must be weighed.

C. UHCDA ADOPTION OF MALPRACTICE AND ABANDONMENT

STANDARDS While drawing on a tradition that circumscribes a care-provider’s autonomy, the UHCDA seems to offer broad physician immunity even when the protected standards of ethical care are ambiguous. Section 4740 provides a standard for immunity and a non-exhaustive list of conduct immune from prosecution. Most broadly, section 4740 provides that “[a] health care provider... acting in good faith and in accordance with generally accepted health care standards applicable to the health care provider... is not subject to civil or criminal liability or to discipline for unprofessional conduct for any actions in compliance with this division.” 75 The section specifically offers immunity for actions taken under the provisions allowing a care-provider to withdraw for reasons of conscience.76 Moreover, the comments to this section explicitly express the “good faith” and “in accordance with generally accepted” standards elements of the provision, 77 which invoke the negligence standard of malpractice.78 The inclusion of this provision might further reinforce the impression that the law gives broad deference to the physician’s decision by interfering only when an act is negligent. The malpractice standard does not, however, necessarily address the question of withdrawing futile care.

Given the long-standing common law tradition of malpractice and its failure to address futility properly, it appears that some recognition of its unique complexities is lacking. The law may be read to state that, if it is the standard practice to withdraw care, the doctor is not negligent.

However, twenty-five years of patients’ rights development indicate that unilateral actions are not the standard. The unilateral withdrawal of care merely because a physician believes it to be inappropriate violates our

75. See id. § 4740.

76. See id. § 4740(d).

77. Levine, supra note 4, at 88 (discussing generally accepted doctrine of physician abandonment standards).

78. See Cal. L. Revision Comm’n, Health Care Decisions for Adults Without Decisionmaking Capacity, 29 REPS. RECOMMENDATIONS & STUD. 1, 129 (1999) [hereinafter Health Care Decisions].



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