Society's Choices Social and Ethical Decision Making in Biomedicine (1995) / Chapter Skim
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Limiting Life-Prolonging Medical Treatment: A Comparative Analysis of the President's Commission and the New York State Task Force
Limiting Life-Prolonging Medical Treatment: A Comparative Analysis of the President's Commission and the New York State Task Force
Pages 307-334
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From page 307... ...
BRODY, Ph.D. Professor of Medicine, Baylor College of Medicine In 1983, the President's Commission for the study of Ethical Problems in Medicine and Biomedical and Behavioral Research produced a report on the topic of limiting life-prolonging therapy entitled Deciding to Forego Life-Sustaining Treatment.i Three years later, in 1986, the New York State Task Force on Life and the Law produced a report on some aspects of this topic entitled Do Not Resuscitate Orders.
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From page 308... ...
The main thesis of this paper, to which the bulk of it is devoted, is that these perceptions are incorrect, both about the President's Commission and about the New York State Task Force. The report of the President's Commission was a success in summarizing a consensus that had emerged, and in beginning the process of moving beyond it, not in shaping that consensus.
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From page 309... ...
(i) The same principles should apply to parental decision making about life-prolonging therapy for their children, especially severely ill newborns, but the emphasis must be on the child's best interests since the substituted judgment standard cannot apply.
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From page 310... ...
A comparison of the principles of the current consensus with the summary of the 24 conclusions contained in the introduction to Deciding to Forego Life-Sustaining Treatment reveals both considerable overlap and some differences. We will first examine the extent to which our consensus principles are incorporated in its summary conclusions and we will then examine those of its summary conclusions which are not included in our consensus principles.
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From page 311... ...
on the special status of PVS patients, and summary conclusion (14) on the lack of any need to provide futile care to severely ill newborns.
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From page 312... ...
As a result of this emphasis on physician decision making, there is no mention of certain crucial patient-centered elements of the consensus such as the rights of patients to refuse treatment, the use of advance directives, and the family as surrogate decision makers attempting to apply the substitutedjudgment rule. Another important discussion was published in Critical Care Medicine in 1978 by members of the Critical Care faculty at Presbyterian University Hospital in Pittsburgh.7 It also described a system introduced in 1975 for classifying patients according to the level of therapeutic effort they would receive.
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From page 313... ...
add more provisions which provide for surrogate decision making on behalf of incompetent patients. As all of the statutes allow attending physicians to rely upon directives without the authorization of a
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From page 314... ...
However, some elements of the current consensus (the role of institutional policies, the standards for surrogate decision making, and the use of durable powers of attorney) were not present, usually because they were not relevant to the nurnoses of the statutes.
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From page 315... ...
. In its decision, the Supreme Judicial Council of Massachusetts ruled in 1987 that decisions involving incompetent patients must be brought to a court.
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From page 316... ...
the elements of the current consensus most clearly rejected were the insistence in Eichner on clear and convincing evidence of the patient's previously expressed wishes rather than substituted judgments by others about what the patient would have wished, thereby rejecting a portion of (h) , and the unwillingness in Storar to rely upon any surrogate's judgment about the patient's best interests, thereby rejecting another portion of (h)
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From page 317... ...
What is the best form of advance directives, living wills or durable powers of attorney?
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From page 318... ...
The concern today about living wills is their lack of specificity. The concern today about the durable power of attorney is whether the surrogate decision maker really knows what the patient would have wanted.
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From page 319... ...
The substantive standard that a hospital committee might enforce by policy or by law need not be the Baby Doe standard, but it does need to be something more concrete than a reference to the best interest of the child, even if we agree with the Commission that any standards will leave some ambiguities. Do the arguments justifying honoring refusals of life-prolonging therapy also justify honoring requests for active euthanasia and/or assistance in suicide?
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From page 320... ...
Those20 who support the concept of qualitative futility as a source for legitimate physician limiting of care independent of patient or family wishes usually treat PVS patients as their clearest example of when care can be limited on grounds of qualitative futility; PVS patients are so different that decision making in their case must also be different. Those who support the usual processes of decision making in these cases insist that there is a value judgment being made that should be made in light of the patient's values as assessed by their surrogates.
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From page 321... ...
The report discusses these issues most fully in the case of severely ill newborns. It seems to come down clearly on the second side (p.
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From page 322... ...
In particular, a decision to limit life-prolonging therapy for an incompetent patient required in New York clear and convincing evidence that the patient would have requested those limitations in the circumstances at hand, rather than surrogate substitutedjudgments or surrogate judgments of the patient's best interests. In 1988, the New York Court of Appeals, in an opinion28 written by fudge Wachtler (influenced, it has been suggested,29 by a case involving his own mother)
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From page 323... ...
It was, moreover, a role that was supported by the New York legislature, which adopted in 1987 a DNR law based upon the Task Force's 1986 report,33 adopted in 1990 a health care proxy law based upon the Task Force's 1987 report,34 and is currently considering legislation on surrogate decision making based on the Task Force's 1992 report. It is also a role that we need to keep in mind as we assess the accomplishments of the three reports.
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From page 324... ...
To begin with, it dealt with the problem of patients who have no surrogate decision maker, allowing for the writing of a DNR order when resuscitation would be futile (defined by the legislature35 as "CPR will be unsuccessful in restoring cardiac and respiratory function or that the patient will experience repeated arrest in a short time period before death occurs") or when a court directed that such an order be written (the legislature made it clear that the court could do so using either a substituted judgment or a best interest standard)
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From page 325... ...
Once more, context is crucial for understanding the significance of that report. In light of the New York court decisions about surrogate decision making which required surrogates to meet the very high standard of clear and convincing evidence of previous patient wishes, surrogate refusals of life-prolonging therapy were severely limited in New York.
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From page 326... ...
ix) to the fact that the major gap in that incorporation is a failure to deal with surrogate decision making that limits life-prolonging treatments other than CPR when the patient has not appointed a health care agent and there is no living will to supply clear and convincing evidence of the patient's wishes, and it attempted to fill that gap.
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From page 327... ...
Limitations on surrogate decision making to limit life-prolonging therapy: the Task Force, following in the path of the President's Commission, had already addressed this issue as well in its DNR report, but it returned to it both in the third report and in its 1993 supplement to that report. In the report itself (pp.
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From page 328... ...
I think that we can say that the reports were based primarily on the current consensus. I think we can say that the legislation based upon them incorporated into New York law much of the current consensus, and that what is missing will be incorporated if and when the proposed legislation in the third report is enacted into law.
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From page 329... ...
that all surrogate decision making is an attempt to deal with cases in which the patient is no longer competent. Both the Task Force's initial report and the DNR legislation based on it allowed for a carefully defined exception to
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From page 330... ...
. Decision ma ung tor Incompetent patients without surrogates since It 1mposes the additional requirement that the provision of the life-prolonging treatment "would violate acceptable medical standards." It seems clear to me that the Task Force has not yet found an acceptable solution to this most vexing problem, one that has produced tremendous controversy.
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From page 331... ...
If we see the Task Force's efforts as part of a larger legislative process, then a quick analysis suggests that this larger process worked very well to insure that the resulting legislation was sensitive to the context of a state in which there is tremendous religious/ethical pluralism on the difficult questions raised by the limiting of life-prolonging therapy. What are we to conclude then about the accomplishments of the New York State Task Force in its work on limiting life-prolonging therapy?
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From page 332... ...
2. The New York State Task Force on Life and the Law, Do Not Resuscitate Orders (New York: Task Force, 1986)
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From page 333... ...
"Special Ethical Issues in the Management of PVS Patients" Law Medicine and Health Care vol.
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From page 334... ...
32. Reprinted in Annual Report of New York State Task Force on Life and the Law for 1988 pp.
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