Strategizing the End-Game: Palliative Medicine and the Law

This paper analyzes the consequences of not strategizing or planning for one’s death by use of a testamentary disposition, health care proxy or other advance medical directive which sets out the course of medical treatment which is to be given or withheld during the end-stage of life. When instruments of this nature are absent, the judiciary is brought - all too often - into controversies among health care providers and family members who take opposing views regarding the nature and extent of therapeutic or palliative care which should be extended. Traditionally, in order to resolve these conflicts, two decision making models are utilized by the courts: best interests and substituted judgment. Stated otherwise, the courts attempt to ascertain - based largely upon medical evidence - what is in the best overall interests of an incurable, incompetent patient or, alternatively, what course of care such a patient would have chose if he were to be competent to make a present health care decision. For the competent patient, the best approach to managing his care at the end-stage of life is to exercise his common law right to refuse treatment. Determining patient life values are central to both of these two models. For the incompetent patient, ascertaining and evaluating these values is of particular consequence to any and all effective approaches to palliative care. This paper suggests, through a comparative analysis of British and the American legal frameworks, that - absent clear legislative direction or judicial recognition of physician assistance in dying - the most sensible and compassionate approach to end-stage care is to be realized by wider acceptance and application of the doctrine of medical futility. This doctrine can be strengthened, in turn, humanely, through use of deep or palliative sedation which is seen as efficacious and medically appropriate in cases of intractable somatic and non somatic pain and suffering during terminal illness. Indeed, such a practice is consistent with a ethic of adjusted care. To invite or continue medically futile treatment should be recognized as simply wrong; for, acting in such a manner not only denies the fact of human finitude, but it imposes unnecessary effort, expense, and emotional trauma on both the patient and other affected third parties. When physicians attempt to treat futile medical conditions, such actions are a total abnegation of one of the cardinal principles of medical ethics - beneficence.