"the law is written more broadly than that. It is not limited just to patients who are in a permanent vegetative state or who are otherwise totally incapacitated."

The law in question is Section 166, "Advance Directives," of the Texas Health and Safety Code, Subchapter B, "Directive to Physicians," Paragraphs 166.045-046 and 166.051-053.

(http://www.capitol.state.tx.us/statutes/docs/HS/content/htm/hs.002.00.000166.00.htm - scroll down to 166.045)

The text is worded as a refusal by the hospital to honor a patient's request for continued treatment that the hospital regards as "inappropriate." Paragraph 166.045 requires that the hospital provide care until a "reasonable opportunity" to transfer the patient to a more willing facility has been granted. Paragraph 166.046 spells out the specifics of the process, including that when the facility determines that continued care is "inappropriate" that decision will be reviewed at an ethics committee meeting which the patient's representative has the right to attend, that if the committee determines that continued care actually is inappropriate the facility must assist in transferring the patient to a facility or caregiver who is willing to undertake treatment, and that the patient's family must be provided at least 10 days to seek such transfer. (Sections 166.051-053 repeat these directions in lay language as a handout to be given to the patient's family, and establish a registry of facilities potentially willing to accept futile cases in transfer.)

There is an odd ambiguity in the text. Section 166.046 (the actual process for refusing to honor a patient's request) does not specify that it can be invoked only under specific conditions. (It does specify that if the patient needs life-sustaining treatment that it must be provided while the decisionmaking process is underway, but it does not say that that process is limited to patients who require life-sustaining treatment.) However, Section 166.052, the language to be given to the patient's family, explicitly assumes that "You have been given this information because you have requested life-sustaining treatment, which the attending physician believes is not appropriate." However, this is not as big a deal as it seems.

First of all, the "transfer" requirements of the statute can be satisfied simply by assigning another physician at the same facility as the patient's primary doctor - if a willing physician can be found. So, if the reason for the refusal to accede to patient requests is merely one doctor's personal beliefs, that problem can be alleviated by finding another doctor - and there will certainly be many doctors willing to provide long-term care in most cases that are not absolutely hopeless. So the danger of "giving up on" a patient who needs care that is not truly futile is low; if responsible medical opinion would uphold the usefulness of care, it should be no problem finding a doctor (or another care facility) willing to provide that care. And, of course, if it is clear that care would serve a useful purpose, one would hope the ethics committee - which includes many clinician members - would recognize this and disallow the request to override the patient's wishes.

Second, although it is true that the statute is not limited to cases of severe debility, it is unlikely that the statute would be invoked other than in hopeless cases, because there is simply no reason to otherwise. Why would a facility not want to continue providing care to a patient who could benefit from it? That's their reason for existing, after all (not to mention that they get paid for it). The only reason to assert that a patient's request for continued treatment is "inappropriate" is when that treatment uses up resources but confers no benefit - the definition of "futility." And, again, if it is asserted that treatment is "inappropriate" when the patient really could benefit from it, the ethics committee would override that claim, and other caregivers would be willing to provide treatment.

Finally, I think it is appropriate that the statute is not limited to specific conditions like persistent vegetative state. "Futility" is merely a situation in which a requested treatment cannot provide a benefit - but that can be true in many cases, not just PVS. It is appropriate to invoke the futility clause whenever a given treatment is, in fact, using up resources to no good purpose. The statute - and the inherent logic of discussions of futility - provide safeguards against abuse, but caregivers must have a way to halt a pointless drain on resources whenever it occurs.

"And it allows doctors to disregard entirely a patient's or family's stated wishes"

Well, yes, but this is pretty much the whole purpose of a "futility" standard (and why the concept is controversial). If the patients or their representatives agree that continued care is useless, then there is no conflict. The purpose of a futility standard is to resolve conflicts when patients' representatives demand care that is not serving a purpose, and refuse to bring the situation to a close. The futility statute allows care facilities to end treatment unilaterally - after providing for review hearings, family input, and extended efforts to seek another resolution - when no agreement can otherwise be reached. Necessarily it will disappoint or anger the families in such cases, but the only alternative would be to allow families to demand continued care that provides no practical benefit, regardless of cost or scarcity of resources, for as long as they decide they want it - which would, in a sizeable minority of cases, essentially be forever. That can't work. At some point, a firm decision has to be made, even if it is not one on which everyone agrees.

Thanks for signing in, . Now you can comment. (sign out)