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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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In California, Thor v. Superior Court explicitly references Saikewicz, thus invoking the common law tradition of EIMP in California jurisprudence.98 Thor, one of the cases explicitly adopted by the legislature in passing the UHCDA,99 suggests that the complicated and conflicting legacy of EIMP has been adopted in the drafting of the UHCDA legislation. While a seemingly uncomplicated invocation of the right of a physician to have an ethical position properly weighed against patient interests, in reality, the calculus of state interests invokes a tradition that does little to protect the individual physician. The plain language of sections 4734 and 4735 would indicate a broad individual and institutional power, but the traditional definition of conscience and medical integrity are not rooted in balancing the particular position of the individual doctor and particular patient. Rather, the patient’s autonomy is given high value.

Moreover, the EIMP is protected only insofar as the patient’s autonomy to decline treatment does not trump the institutional policies of the medical profession represented by the individual physician.

The tradition invoked in adopting the UHCDA attempts to protect the EIMP, but fails to do so in a substantive way when faced with futility. The reference to the EIMP is properly situated in the patient’s right to decline treatment, ensuring that medical paternalism is kept at bay. But the jurisprudence adopted runs counter to the physician’s right to deny futile care, even when interpreting sections 4734 and 4735 to grant such a right.

The tradition that informs these sections has only protected physician ethical integrity incidentally when compared to patient’s interests. While recognizing the specter of a physician being instrumentalized or their own ethical position disregarded, the UHCDA neither creates the tools nor adopts a tradition well enough equipped to dispel the problem. The application of the EIMP has failed to provide a usable, clear standard that protects the physician while balancing patient autonomy. The attempt relies only on vague references to confused cases. The courts have been unable to give weight to the physician’s moral position in the ethically ambiguous realm of patient’s end-of-life decisions, defaulting to an affirmation of patient’s rights.

A rule-principled analysis cannot resolve the patient-physician conflict because each side relies on equally valid tools—the language and logic of inviolable rights. While the law recognizes this impasse, it has simply

98. See Thor v. Superior Court, 855 P.2d 375, 383 (Cal. 1993).

99. See Health Care Decisions, supra note 78, at 8 n.6.

1244 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 75:1217 opted to protect the party in the weaker position, the patient. This resolution does not resolve future conflicts. When the factual scenario shifts to a patient seeking extraordinary treatment, the tools are inadequate for the task. The failure to give substantive weight to a physician’s integrity in the balance means there is little guidance when our intuition tells us that a physician’s hand should not be forced. Certainly a model that relies on institutional pronouncements of the medical institution bears some weight, but the protection of individual integrity—both physicians’ and patients’—is most directly salient to the decision being made.

E. CALIFORNIA’S COMMON LAW TRADITION OF END-OF-LIFE DECISIONS

In passing the UHCDA, the legislature has explicitly adopted common law traditions.100 The cases referenced provide a glimpse at the ethical structure adopted by the courts, and consequently by the legislature, for end-of-life decisions. While almost exclusively focused on the rights of the patient to decline treatment, the ethical positions adopted and the standards applied reveal the position and weight given to the physician as opposed to the patient. The common law constraints clearly utilize rights to grant patients, not physicians, the discretion to determine their goals— particularly in assigning the discretion to make utilitarian calculations.

While affirming the patient as decisionmaker, the courts have only tangentially addressed the problem of a patient requesting futile treatment.

There is an implicit assumption—perhaps now being reversed—that the physician will make every effort while the patient constrains the range of treatments. The common law that informs the UHCDA tells us that a physician need not do “everything possible” and that treatments must be the product of patient-directed goals. The close reasoning and justification of how patient goals, excessive treatment, and the physician role combine to resolve questions of futility are not fully developed. The result, perhaps by design, is a large realm of indeterminacy in which the physician and patient mediate goals and treatment. The courts ultimately rely, however, on firm, determined reasoning that predetermines future results by resolving these conflicts as a question of rights. While this has been useful in allowing patients to make decisions, the courts should adopt a model that ensures a fair, reasonable decision process in which both patients and physicians may develop and pursue their individual moral positions.

While not directly addressing the UHCDA, a recent California Supreme Court decision did reexamine the principles for end-of-life





100. See id.2002] FUTILITY AND THE UHCDA 1245

decisions. In Conservatorship of Wendland v. Wendland, the Court held that a physician could not withdraw or refrain from reinserting a feeding tube into a severely disabled, though conscious, man. 101 Robert Wendland was in coma for several months following a car accident. Although he eventually regained consciousness, he was severely mentally disabled. His feeding tube was surgically replaced three times. His wife, acting as her husband’s conservator, asked that the feeding tube not be replaced a fourth time.102 Wendland’s mother objected and legal proceedings arose. The Court decided that, even though a competent person had the right to refuse treatment, a conservator’s power to make decisions for an incompetent person flows from the power of the state to protect people.103 It set a high standard to allow withdrawal of hydration and food, requiring clear and convincing proof that the conservator’s wishes were being met. It opted instead to mitigate risks. Wendland did not directly address the question of the physician’s role. What it did show, however, was that the court maintained an interest in the results, rather than the process of patient decisionmaking. It focused on the ends, not means.

In Thor v. Superior Court,104 the California Supreme Court specifically used utilitarian reasoning. In allowing a patient to make his own decision about treatment, the court used a proportionality test to conclude that a patient need not prolong his life if there was no hope of reversing his severely disabled and dependent state.105 It should be noted, however, that the court merely seemed to affirm the patient’s individual decisionmaking. The real decision underlying the futility debate is whether the court circumscribed physician intervention by relying on principles of informed consent and self-determination. 106 While affirming a utilitarian consideration for the individual patient to establish goals, the rights and principles invoked constrain the realm of the physician’s autonomy to act.

The utilitarian calculus is affirmed in that it can be employed to justify withdrawal or withholding of treatment, but only if the patient or surrogate performs the calculus. That calculus sets an outer limit on what technical treatment the physician can apply.

A second constraint on the physician is also affirmed in that the patient’s rights of consent and autonomy assign to the patient, not the physician, the role of primary moral agent in the decision. When faced

101. See 28 P.3d 151 (Cal. 2001).

102. Id. at 154–55.

103. See id. at 161.

104. See Thor, 855 P.2d. at 375.

105. See id. at 384.

106. See id. at 381.

1246 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 75:1217 with the moral end-of-life challenges, the person most protected by the courts is the patient. Given a range of interventions, the patient can narrow the options, to some extent constraining the physician in a technical sense.

Nonetheless, it is the patient who appears to be the ultimate moral arbiter of the propriety of applying various medical treatments. The court, however, appears to be silent on who selects the universe of possible treatments— futile or not—to be considered. While this might still be the physician’s role, given a more informed patient population and a greater exercise of patient rights, it is not clear that the physician can narrow this.

Furthermore, it may not be ethically appropriate for the physician to limit medical options prior to joint deliberations.

In Barber v. Superior Court, a California appellate court again used the proportionality test, but further expanded on the abrogation of a doctor’s duty in some situations.107 In Barber, the court held that physician’s cessation, at the request of the family, of life support and food and hydration were not sufficient to sustain murder charges. First, the court held that the doctor’s duty to sustain treatment ended when the treatment had become ineffective.108 Relying on tort theory, the court determined that, once treatment could no longer cure or treat a pathology, it had become ineffective, thereby nullifying the physician’s duty to continue treatment.109 Second, weighing the benefit of treatment against the burden, the court affirmed that cessation of life-sustaining treatment without providing a cure for the vegetative state was not required. 110 Here, the court affirmed the physician’s decision to withdraw care when he or she complies with the patient’s calculation of best interest. The court affirmed that this calculus—which ceased life-sustaining treatment—was legitimate and did not subject the physician to criminal prosecution. This court allowed a further extension of the physician’s autonomy by saying that the duty to treat was discharged when aligned with the patient’s wishes.

This holding, however, does not provide the freedom to withdraw care whenever it is futile. The discharge is narrowly constrained to situations where the patient-physician interests align. While seemingly allowing withdrawal for futile treatment, the court did not actually address patientphysician disagreement, suggesting a strict definition only where there is clear agreement by the parties. The court seemed to aspire to a firm, conclusive line beyond which ineffective treatment absolves responsibility.

Such a quasi-scientific approach is certainly echoed in the scientific

107. See Barber v. Superior Court, 195 Cal. Rptr. 484 (Ct. App. 1983).

108. See id. at 491.

109. See id. at 489.

110. See id. at 491–92.

2002] FUTILITY AND THE UHCDA 1247 approach to medical questions, and it conforms to a rule-principled ethic.111 The court here was merely stating that no criminal charges could arise from ceasing futile treatment. Given the higher stakes, a clear, strict definition may have been appropriate. Rather than entering into the complex legal and medical decision process, the court was instead addressing criminal charges. Furthermore, this strong position was only adopted where both patient and physician concurred in the goals and agreed that treatment was futile.

In Conservatorship of Drabick v. Drabick, the court held that the statute that allows a conservator to give consent does not, in a plain language reading, allow withdrawal. 112 Nevertheless, Drabick extended the statute to maintain that giving consent includes, by necessary implication, the authority to withhold consent.113 Drabick reiterated the proportionality test114 but situated the strict definition of futility within the utilitarian balance, stating that the conservator’s focal point in the decision should be the “‘prognosis as to the reasonable possibility of return to cognitive and sapient life.’”115 This reasoning, much like proportionality in general, used a “strict” definition only as a focus to the balancing test—an instrument in the calculation. Contrary to Barber, the strict definition of futility was not the answer to futility, but only a consideration in the complex balancing required in practice. When faced with moral disagreements in the course of treatment, the strict definition stating that treatment is ineffective becomes only one of a myriad of issues weighed.

The California courts’ treatment of what actions should be considered in situations where patient and physician disagree seemed to indicate that patient’s interests trump the physician’s moral interests. Citing constitutional and common law rights to control treatment, the court in Bartling v. Superior Court held that a physician could not thwart a patient’s well-reasoned desire to withdraw treatment.116 Essentially, the physician’s hand was forced without allowing the physician’s ethical integrity or conscience to override an unreasonable demand.

A potential escape from this situation, though, was indicated in factual dicta. The court found that withdrawing treatment was not tantamount to

111. See discussion supra Part II.A.

112. See Conservatorship of Drabick v. Drabick, 245 Cal. Rptr. 840, 859–60 (Ct. App. 1988) (superseded by statute as stated in Conservatorship of Wendland v. Wendland, 28 P.3d 151 (Cal.

2001)).

113. Id. at 860–61.

114. Id. at 846.

115. Id. at 856 (quoting In re Quinlan, 355 A.2d 647, 669 (N.J. 1976)).

116. See Bartling v. Superior Court, 209 Cal. Rptr. 220, 230 (Ct. App. 1984). See also Bouvia v.

Superior Court, 225 Cal. Rptr. 297 (Ct. App. 1986).



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