Medical Futility: Legal and Ethical Aspects

Abstract

I welcome the long-overdue recognition of medical futility represented by the contributions of Koch, et al., Miles, and Dew, although I would be more comfortable with using the more global (and optimistic) term of “beneficence.” However labeled, the notion that medical treatment decisions are primarily that—medical decisions—is a far more appropriate starting point in both law and ethics than the customary departure point of patient autonomy. This is particularly true in cases in which the patient is not competent, and prior expressions of intent are remote, vague, or otherwise unreliable. Despite such flaws, prior statements have been invested with a talismanic quality, permitting avoidance of the genuine moral issues of duty and benefit that are presented by every severely ill and incompetent patient.The rise of patient autonomy may actually have had less to do with genuine concern for the liberty of the patient than with the moral vacuum created by an excessively pluralistic view of medical ethics. Courts in particular have fallen out of the habit of a priori moral reasoning, replacing this discipline with balancing tests of asserred personal and governmental power.