Volume 2, Issue 1 - March 1999

Frank Medical Discussion A Must

In early 1998, we wrote an article outlining some serious concerns about a November 1997 Manitoba Court of Appeal decision (Lavallee) that concluded "Neither consent nor a court order in lieu is required for a medical doctor to issue a non-resuscitation direction where, in his or her judgement, the patient is in a irreversible vegetative state."

This decision addressed the tragic case of a young infant in a persistent vegetative state. We wrote the piece at that time, not because we disagreed with the final judgement in the case, but because we had concerns about what the judgment might mean in terms of health-care professionals and patients, health care decision making and, in particular, decision making for persons who lack the decision making capacity.

Two Major Concerns

In the shadow of the current case involving Andrew Sawatzky, his wife Helene and physicians at the Riverview Health Centre in Winnipeg, we want to revisit two of our earlier concerns that seen, to us, to have bearing on this new situation. One major concern we had about the Court of Appeal decision was the suggestion that physicians could write a "no CPR" or "Do-Not-Resuscitate" (i.e. DNR) order without the knowledge and/or consent of those most directly affected by this action -- patients and their families -- because such decisions are exclusively "medical" decisions. The second major concern was that physicians might uncritically apply the decision in the Lavallee case to other situations and decisions about treatment and care.

Not Just Medical Decisions

Addressing these two issues in turn, let's briefly look at the matter of health-care decisions. Are they, or are they not, exclusively "medical decisions"? If they are, this would meant that doctors, by virtue of their extensive knowledge and training about the human body, how to diagnose diseases and how to treat diseases, would know what overall, is "best" for their patients.

Is this an accurate, or full account, of what is involved in coming to a decision about someone's health care? We would argue that, although medical knowledge plays an essential role in health-care decision making, it is incomplete without another kind of knowledge; knowledge that only patients themselves, or those who represent themselves, or those who represent them when they cannot speak for themselves, can contribute.

This knowledge relates to patients' biographies, that is, their values, beliefs and ideas about what is important to them in particular "times, places, and circumstances." It is this information that will shape the goals of treatments. Physicians, for their part, outline the option in terms of means of treatment available. In order to have the fullest possible picture of what is "best" overall, both kinds of knowledge are necessary.

This blending of knowledge of means of treatment and goals of treatment aptly describes the reciprocal nature of the relationship between physicians and patients. Far from being about who is "smarter" or more "powerful", such relationships are about how all parties to the decision making can bring the knowledge they have to bear on what, in the end, will be the best for the patient.

Unjustified Generalization

Our second major concern regarding the Lavallee case was about if, when and/or how the court's decision might be generalized to other situations and decisions about treatment. We feared that physicians would translate the court's decision along the lines of "Well, the court says decisions to resuscitate are a judgment call on my part, I don't need the family's consent or approval from the court to do this" and apply this kind of thinking to other people and situations.

Well, has this happened? It has been our experience that the particular decision of the Manitoba Court of Appeal in November 1997 has, in fact, been "generalized" in clinical practice. On any number of occasions since that decision, clinicians have said to use that they no longer have to have the permission of patients to write a DNR order, if they think it would be "futile". Similarly, in our teaching with students in the faculty of medicine, some have referred to "the court decision" that allows them to write a "do not resuscitate" order because this is a "clinical or medical decision". We are aware of situations where an order not to resuscitate a patient was written by a physician and neither family nor family was aware that the order was on the patient's chart. Around treatment decisions unrelated to DNR, clinicians have also commented that they did not have to follow directions from a family because the courts had given them the authority to make these "clinical" decisions unilaterally.

Respect in Health Care Relationships

What to make of all of this? Well, these developments are troubling at a number of levels. First, we want to reiterate the importance of explicitly attending to the ethical considerations associated with these questions. Here, it should be clear that decisions in the professional-patient therapeutic relationship are not simply technical or scientific questions. Inasmuch as decisions in therapeutic relationship terminate in persons (you, your spouse, parents, child, relative, or friend), and not in diseases or disease states, these decisions are, by definition, ethical decisions. By ethical, we mean decisions or judgements that we as individuals, or a community, take to be "right" or "good" decisions in those situations. These decisions cannot be respectful of patients or practitioners if any party to the decision is either excluded or if a decision is taken unilaterally, that is, with little or no meaningful conversation. "Respect" for those involved in these difficult decisions must include an open and honest exchange of views. This conversation ought to occur over time and include communication about diagnosis, available treatment options and prognosis, with and without interventions. In the context of resuscitation, it would be reasonable to explore what the patient or family actually understands about resuscitation (i.e. do they really know or appreciate what actually happens when this is undertaken?) and the clinician's estimate of "successful outcome" given the patient's history, diagnosis and prognosis. In almost every care, a shared understanding of a "good" outcome ought to reflect the knowledge and clinical experience of the physician and important values of the patient and/or family.

In saying this, we want to emphasize that no one party to such discussions ought to simply "trump" the other either by demanding that treatment be provided simply because it has been requested or by silently padding over discussion about these matters and surreptitiously writing orders in the health record.

Conversation is not only and ethical requirement in these situations, but, a legal one. One only needs to look at the unanimous Supreme Court of Canada decision in Reibl vs. Hughes. This judgement in the 1980's firmly established the primary role of patients in treatment decisions. The court specifically looked at the issue of consent and articulated a "reasonable person" standard of disclosure in the therapeutic relationship. Essentially, practitioners are to disclose to patients what a "reasonable person" in the patient's position would want to know in order to make an informed decision. It may be the case that "reasonable people" in our society have come to view resuscitation as a "standard" intervention. At the very least, a "reasonable person" or their substitute decision maker, would likely want to know why it is not seen as "appropriate" in some situations.

The "Futility Problem"

Another important element in decisions about the resuscitation and treatment interventions generally turns on our understanding of what might be called the "futility problem". This is a complex and difficult question that has, in some respects, been an important hinge in the debate about where and how decision making with respect to DNR order ought to occur. Often, conflicts or ethical difference will arise in these situations because patients or families request cardiopulmonary resuscitation (CPR) when their physicians believe it to be "futile".

In terms of medicating differences between those party to decision making when a DNR order is the source of the conflict, it is our experience as clinical ethicists that introducing the "futility" argument is rarely helpful for two reasons. First, the concept itself is wanting. This point was made in a recent editorial in the Canadian Medical Association Journal (CMAJ, Feb. 24, 1998). In addressing the concept of medical futility, Dr. Charles Weijer write that it is untenable because it "bundles uncontroversial cases involving treatment that cannot work with cases involving effective treatment that supports controversial ends..." In other words, "futility" mixes together two very different clinical situations. Situations where the treatment cannot do the job it was intended to do, and situations where the treatment can do the job it was intended to do, but people have different and conflicting ideas about the value of treatment's outcome.

We also find the use of futility arguments unhelpful in the clinical setting because, in our experience, this line of reasoning tends to erect barriers between physicians, patients, and families. At what is typically a critical moment in patients' lives, when the need for strong communication is most important, the introduction of the notion of futility may only serve to curtail important and necessary conversation and make adversaries of those who are party to an already difficult health-care decision.

Basic Human Concerns

Health care and health-care decisions are basic human concerns that often push us to think about our understanding of life itself. In health care, we touch on important value issues pertaining to quality of life itself. In health care, we touch on important value issues pertaining to quality of life, prolongation of life, and sometimes the very meaning and purpose of life in the face of illness and suffering. That disagreements occur in health-care facilities ought not to surprise us.

What then is called for when such conflict inevitably arise? We believe frank and open discussion, which explicitly recognizes and identifies the values of health professional(s) and the personal value commitments of patients or their families is essential. We recognize that, in "real time", this type of discussion is demanding and often emotionally exhausting. These conversations, however, as difficult as they ma be, are opportunities for all involved to contribute their very best to the decision process. This decision process strives, above all else, to foster respectful communication and a climate of trust for all who may be struggling for clarity in the midst of trying and sometimes imponderable situations.

If we continue to frame decisions to attempt or not to attempt resuscitation as "one view wins, while the other view loses", we all lose -- physicians, health-care facilities, patients and families alike. We will only have succeeded in further eroding fundamental relationships of trust, relationships between those who are skilled in providing health care and those who seek human good.

This article first appeared in the Winnipeg Free Press on November 18, 1998. It is reprinted with permission from the authors and the Winnipeg Free Press.

Announcements

• PHEN is pleased to announce that this year's conference on May 21, 1999 has been approved for continuing education credit from the following organizations:
  • College of Family Physicians, Alberta (7MAINPRO-M1 credits)
  • Royal College of Physicians and Surgeons, Canada (MOCOMP Study credit statements will be provided for Fellows at the Conference).
  • Alberta Pharmaceutical Association (6.5 Continuing Education Units)

• PHEN is currently looking for partners to help develop health ethics projects around informed public consultation in health and ethics education for health care providers, with a focus on physicians. These projects are still in the early stages of conceptualization. Joe MacGillivray is leading PHEN's efforts to develop relationships with organizations who share PHEN's interest in meeting identified health ethics needs. Fore more details on partnering with the Network, please contact either PHEN office.

• At the upcoming AGM on May 21, 1999 in Red Deer, Alberta, the PHEN membership will be electing two individuals to sit on PHEN's Board. If you are interested or would like to nominate someone to run for one of these positions, please contact PHEN's Northern Alberta Office.
  

Views offered in this article are those of the author and do not necessarily reflect the position of the Provincial Health Ethics Network.