Introduction to Medical Futility Dispute Resolution
Families of patients in both U.S. and Canadian hospitals regularly ask clinicians to administer life-sustaining medical treatment for incapacitated, critically ill patients in situations where the treating clinicians judge such treatment as non-beneficial and inappropriately aggressive. These conflicts are widely referred to as “medical futility” disputes. A key question is whether and how clinicians can stop life-sustaining treatment (such as CPR, dialysis, mechanical ventilation, and nutrition & hydration) without family consent.
Medical futility conflicts are becoming more frequent and more litigious. For example, recent United Kingdom cases like Charlie Gard were litigated not only to the UK Supreme Court but also to the European Court of Human Rights. British families and clinicians continue to litigate these cases (see, e.g., Alfie Evans and Tafida Raqeeb). While the UK is still debating solutions, at least it takes a uniform and consistent approach. In contrast, U.S. jurisdictions are taking varying approaches. Some have enacted Simon’s Laws that prohibit withholding or withdrawing life-sustaining treatment without consent. Other jurisdictions (like CA, TX, and VA) have enacted laws that specifically permit it.
The oldest and most well-known U.S. dispute resolution mechanism for medical futility disputes is the Texas Advance Directives Act. But TADA is under attack. First, the Texas state legislature has repeatedly amended and narrowed the law over the past few years. Second, litigants are challenging TADA’s very constitutionality. A case is now pending before the Supreme Court of Texas (Kelly v. Houston Methodist, No. 19-0390). It is unclear whether TADA will survive legislative and judicial attacks. But what is the right replacement? Policymakers are looking for a dispute resolution mechanism that acts quickly, yet still affords procedural due process.
For over a decade, I have closely followed the resolution of medical futility disputes in Canada. For example, in 2008, I was invited to lead a series of presentations and discussions in Winnipeg during the Samuel Golubchuk case. Since then, I have consulted with lawyers involved in other cases, including the Hassan Rasoui case as it headed to the Supreme Court of Canada. I have also regularly consulted with Canadian clinicians on projects such as the widely influential, international Official ATS/AACN/ACCP/ESICM/SCCM Policy Statement: Responding to Requests for Potentially Inappropriate Treatments in Intensive Care Units.
Canada has a model dispute resolution mechanism for the United States to follow: the Ontario Consent & Capacity Board. While the CCB was originally designed to handle other forms of cases, it has adjudicated dozens of medical futility disputes. There is no comparable tribunal in any United States jurisdiction. Over the past ten years, in both published articles and major presentations, I defend the CCB as a model dispute resolution mechanism for medical futility conflicts. I also recommend the CCB in articles in Toronto Life, Toronto Star, and Toronto Sun. More recently, the Supreme Court of Canada has also endorsed the CCB. Still, commentators continue to debate the competence and effectiveness of the CCB for medical futility disputes.