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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 approach seemingly starts from the assumption of conflict, pitting physician interest against patient. Rather than promote open communication, it uses conflict as the starting point. Ignoring the previous therapeutic and communicative relationship, communication becomes the modus operandi only after conflict. Rather than approaching the futility problem via a process of communication, the assumed conflict is framed as one autonomous agent against another, resulting in a termination of what should be a carefully fostered relationship. Perhaps, while preserving the integrity of the detached, lionized patient and physician autonomy, the relationship itself has been sacrificed. Over the past twenty-five years, it could be argued that the central role of the relationship has been adjusted to better reflect the patient’s interest and rights, incidentally resulting in a more formal, distant relationship. Likewise, increased time demands and medical management have attended or resulted in a decline in the central relationship between physician and patient. 129 The AMA guidelines on medical futility provide an approach similar to that of the UHCDA. The AMA promotes a more refined process to make appropriate decisions within the range of possible approaches to futility. 130 Rather than just informing a patient of the conflict, then making every effort to switch care, the guidelines provide a more nuanced enumeration of the communicative process that helps refine the conflict and seek a solution before terminating the relationship. Indeed, rather than resorting to the rights of the patient or physician, the AMA invokes a process of determining and resolving questions of futility. 131 Where the UHCDA allows the physician to withdraw at any objection with a fleeting acknowledgment of a duty to facilitate transfer, the AMA recommends a seven-step process of attempting to resolve the futility dilemma.132 In the first step, a communicative process of deliberation and mutual understanding is required of the physician and patient to help co-create goals in a way that avoids conflict.133 This explicitly includes discussing

128. See CAL. PROB. CODE § 4736(a) (West 2000).

129. See HUMPHREY & CLEMENT, supra note 30, at 35–47.

130. See AMA Council on Ethical and Judicial Affairs, Medical Futility in End-of-Life Care, 281 JAMA 937, 937 (1999).

131. Id.

132. Id. at 939.

133. Id. at 939–40.

1254 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 75:1217 physician, family, and institutional goals.134 If a question should arise, then the second step of attempting to make joint decisions is undertaken. 135 Third, an individual consultant is employed to negotiate an agreement between physician and patient. 136 Fourth, an institutional intervention utilizing an ethics committee attempts to resolve an impasse.137 Only in the fifth step is the relationship severed. In that step, the patient’s wishes trump, and a new physician within the same institution is sought.138 Failing that, sixth, a new institution willing to comply with the patient’s wishes is sought. 139 After all other steps are exhausted, the medical care is ceased.140 Rather than a raw calculus or facile reliance on rights, the AMA process relies more on a communicative-caring process. The physician and patient create the meaning and attempt resolution. While the possibility to withdraw from the relationship exists, this is seen as a failure of the process, as opposed to the ultimate form of protection of the individual autonomy of both parties. Unlike a caring ethic, however, the ultimate reliance on the physician’s experience seems to suggest a more virtuebased ethic. While certainly more sensitive than the UHCDA, the AMA model employs an “expertise” model of a physician, consultant, and ethics committee to decide appropriate actions. Furthermore, contrary to the communicative process, external agents are seen as arbitrators of decisions.

One attempt to further refine this position might be to amend the role of the individual consultant and institutional ethics board. Rather than envisioning the physician-patient disagreement as a conflict to be resolved by a consultant or review board, the process of decisionmaking should return to the trust at the core of the doctor-patient relationship. Currently, ethics panels are too much like arbitrators in that when conflict seems inevitable, an adversarial course is set, rather than a reinforcement of the trust relationship. 141 Most medical decisions are made without conflict and as part of this relationship—and even where there is a disagreement, the overall care-giving relationship is valued. 142

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Consider in Wanglie, for example, where even after a complicated legal battle, the family praised the care provided by the physician and hospital. Rather than adversaries, patient and physician should be encouraged to trust each other and build a shared meaning to resolve conflict.143 Empirical evidence has suggested that agreement is most often reached when frank, honest communication occurs.144 A violation of a patient’s trust is one of the problematic effects of a harsh cessation of the physician-patient relationship and subsequent adjudication. Now, the failure to respect the physician’s moral position and medical expertise threatens to cause the same sort of rupture. Indeed, the old maxim—that ending up in court is a failure of the law—is increasingly true in this medical context. In order to encourage trust, the process of resolving questions of futility should focus not on arbitration, but on mediation.

Mediation encourages collaboration, which in turn reaffirms the relationship in which appropriate decisions can be made.145 Rather than setting the physician and patient’s autonomy in opposition, rights and principles are balanced. Certainly these legal and moral rights affect the relationship, but cannot replace trust.146


LAW The conundrum of how to resolve conflict regarding the propriety of futile treatments seems a hopeless morass. A patient’s desires and rights to guide the processes of dying often clash irreconcilably with the physician’s rights to not be used instrumentally to provide medically ineffective or unconscionable treatment. The courts and legislatures have indicated that patients have the absolute right to control these decisions, while in the same breath indicating that physicians’ integrity must be protected. We appear to be left with a null solution to the problems.

California’s UHCDA attempts to resolve this. While affirming and consolidating patients’ rights, the law also seemingly provides physicians the right to opt out of care for broad technical and moral reasons. This blanket abrogation is constrained by the duties within the statute and in the common law informing it, requiring the realization of duties and minimal procedures to actually withdraw from treatment. Yet, these duties and procedures fail to address the factual situations actually confronted in

143. Id. at 1103–04.

144. See Shiner, supra note 2, at 844.

145. See Gatter, supra note 141, at 1105.

146. Id.

1256 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 75:1217 questions of futility. The lack of a clear demarcation of propriety within the new statute casts us back onto the tools previously developed for endof-life decisions—a return to apparent conflict and lack of a definitive resolution.

This desire for a clear resolution, however, is misplaced. Merely technical definitions of futility, such as quantitative and qualitative positions seemingly adopted in the UHCDA, fail to address the moral differences inherent in end-of-life decisions. This ambiguity does not mean that no constraints on end-of-life decisions exist. The common law that fails to resolve end-of-life decisions creates an outside boundary on decisionmaking. The constraints invoke rights and principles requiring that a patient be involved in determinations of the course of treatment and that the patient be granted the right to use a utilitarian balancing test to help determine appropriate goals. The rights and utility invoked draw on traditional reasoned philosophies that formulate a rule or definition that is universally applied to facts to generate a right decision. While providing a framework, these philosophies fail to resolve the futility question adequately.

Given the moral and factual ambiguity inherent in a diverse population and in the meaning of a “good death,” a logical top-down analysis fails to compensate for differences sufficiently. The ambiguity plaguing futility is necessary. Merely stopping the analysis at a point that says each decision must be made individually and in respect of the patient’s rights would seemingly subject the physician to the whim of the patient.

Theories that adopt a more factually sensitive position, however, can be employed within the sphere defined by rights—not to resolve what is objectively futile, but to ensure a process that produces the appropriate decision in a given situation. A communicative relationship that emphasizes a process that functions within ambiguity should be adopted not to determine futility, but to help guide the interaction that provides meaning without instrumentalizing the physician while preserving the patients’ rights that have been developed over the past twenty-five years.

Within the communication process, a model like that of the AMA can be adopted, either through legislative enactment or through mechanisms to encourage its adoption in all medical institutions. To move beyond a virtue-based ethic that seems to center on conflict and resolve it through the re-introduction of medical paternalism, the relationship framed by the AMA guidelines should focus upon the central doctor-patient relationship and creative process.

2002] FUTILITY AND THE UHCDA 1257 To promote this central meaning-providing process, an approach should adopt a mediation-model to better ensure a cocreation of meaning, rather than framing futility as a conflict requiring arbitration. This requires earlier and more thorough communication that transcends the merely contractual physician-patient relationship. Other agents are incorporated and differing perspectives are allowed to flourish without resulting in a collapse of the given relationship of those involved. For example, nurses, who are independent moral agents very close to futile decisions, often must accept both patient and physician positions regardless of their own moral position. An appropriate communication model would incorporate the various perspectives, including the technical, to adopt appropriate ends in treatment, and hopefully avoid the collapse of the relationship and the need for quitting treatment. If such a position is reached, the physician and hospital should remain obligated to affirmatively promote the transfer of the patient to either another physician or another facility; most clearly, the mediating ethics board should facilitate such transfers.147 According to the AMA position, it might appear that if these steps fail to resolve the conflict, a medical consensus should absolve the physician from continuing treatment. Rather than abrogation, however, the final step should be one that returns to the judicial arena, but with a new assumption.

Unlike the assumption in Wanglie—that physicians must defend their reasons for not continuing treatment—the presumption should now be that the patient or family seeking futile treatment is on the defensive. This shifts the common law position, but it removes the threat of medical paternalism. While not allowing unilateral withdrawal, this method does presume that the agents who have participated in a lengthy process, when faced with end-of-life decisions, would have a better grasp of the factual and moral meanings that have been adopted. Given that few conflicts about futility actually reach the courts, this posture would merely be a lastresort check on the adequacy of the process in determining the appropriate course of action when faced with futility. Twenty-five years of court scrutiny of end-of-life medical decisions have given us a rich tradition of rights and principles to apply to the difficult question of what course to pursue when faced with futile treatment. These traditions do not resolve the problem but only highlight the conflict of the core ambiguities that trouble us. Rather than shy away from ambiguity and grasp for false certainty, we can adopt a process that fosters the conceptually rich creation of meaning within the community of people generating medical decisions.

147. See Judith F. Daar, A Clash at the Bedside: Patient Autonomy v. A Physician’s Professional

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