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Counterpoint: Is It Ethical To Order “Do Not Resuscitate” Without Patient Consent?

2007; Elsevier BV; Volume: 132; Issue: 3 Linguagem: Inglês

10.1378/chest.07-0912

1931-3543

Constantine A. Manthous,

Ethics and Legal Issues in Pediatric Healthcare

While beneficence, nonmalfeasance, and justice are cornerstones of medical bioethics,1Carrese JA Sugarman J The inescapable relevance of bioethics for the practicing clinician.Chest. 2006; 130: 1864-1872Abstract Full Text Full Text PDF PubMed Scopus (30) Google Scholar respect of patient autonomy is arguably the ascendant ethical principle of American medicine. A preponderance of patients believe they should consent to health-care interventions,2Thorevska N Tilluckdharry L Tickoo S et al.Informed consent for invasive medical procedures: from the patient's perspective.Conn Med. 2003; 67: 529-533Google Scholar3Nicolasora N Pannala R Mountantanakis S et al.Hospitalized patients want to choose whether to receive life-sustaining therapies.J Hosp Med. 2006; 1: 161-167Crossref PubMed Scopus (38) Google Scholar and > 90% of patients wish to choose or reject CPR during hospitalization.3Nicolasora N Pannala R Mountantanakis S et al.Hospitalized patients want to choose whether to receive life-sustaining therapies.J Hosp Med. 2006; 1: 161-167Crossref PubMed Scopus (38) Google Scholar Even though it is most often ineffective, CPR is the only medical intervention that may affect the outcome of cardiopulmonary arrest. Respect of autonomy requires that, when possible, patients have the opportunity to choose even the nature of their deaths (ie, with or without CPR, understanding its risks and benefits). Accordingly, I will argue that, in 2007 America, it is unethical for physicians acting alone to withhold CPR without seeking the consent of the patient or proxy (unilateral do not resuscitate [DNR]). However, it is not categorically unethical to withhold CPR without consent if, in the future, a just process is created, ratified by society, and actuated. Returning to our visiting professor's approach, after he shares his medical opinion, possible responses of the patient include silence, vocalized agreement, vocalized disagreement, or request for clarification/discussion. Silence may signify understanding with neither agreement nor disagreement (see below), understanding with agreement, understanding with disagreement or not understanding. Since the patient may not understand the intent of the conversation and silence (ie, no objection) will be interpreted as consent, writing an order for DNR following no objection/silence is unethical. It is DNR by deceit. If the patient understands CPR with its risks, benefits, and alternative, and agrees that it should not be done, the DNR order is appropriate. This is the process of informed consent.4Terry PB Informed consent in clinical medicine.Chest. 2007; 131: 563-568Abstract Full Text Full Text PDF PubMed Scopus (48) Google Scholar If the patient disagrees, the clinician is obliged to ensure that the patient understands CPR and why he feels it is medically inappropriate. Until medical-legal consensus changes, if the patient persistently disagrees, writing a unilateral DNR order is unethical because it disregards the autonomy of the patient. Merriam-Webster5Merriam-Webster On-Line. Available at: http://www.m-w.com/dictionary/assent; accessed March 20, 2007Google Scholar notes that “Assent implies an act involving the understanding or judgment and applies to propositions or opinions. Consent involves the will or feelings and indicates compliance with what is requested or desired.” If a clinician says “do you understand that I don't think CPR is medically appropriate” and the patient responds “yes, I understand,” the patient has technically assented. DNR by assent has several problems. Firstly, the patient may not understand the risks, benefits, and alternatives of CPR; rather, simply that the physician “doesn't think CPR is medically appropriate.” Secondly, patients have not been told and are not likely aware that assent will result in a DNR order. Assent is applicable with children before they possess capacity. Adult patients are fully capable moral agents whose right to self-determination is undermined if only assent is required. Even if the clinician ensured “informed assent” and explained that lack of objection would result in the DNR order, the validity of the prescription (ie, that CPR is medically futile) relies entirely on the omniscience and values of the physician. Some believe death is the end of their being; and if at stake, patients are entitled to a process that minimizes error of the prescription and is not arbitrary. Unilateral DNR is ethically problematic because of the following: (1) no clinician is omniscient; (2) no clinician is infallible; and (3) the clinician prioritizes his (or his perception of the patient's) values over ascertaining and considering the patient's values. Today, medical certitude should be required to withhold life-sustaining therapies without agreement of patients. There are some relatively rare situations when a patient is clearly dying: 1,000 doctors would assess and all would agree. But the Supreme Court pornography rule (ie, we'll all know it when we see it) is relatively rare in acutely ill patients. In one of the finest ICUs in the world, experienced medical professionals could not reliably predict outcomes and concluded that “Medical caretakers' assessments of impending death for the ICU patients are neither accurate nor timely… and prognostications of futile ICU care for individual patients appear to be inherently flawed.”6Frain L Pohlman A Hall J et al.Intimations of mortality in the ICU: medical professionals' assessments of likelihood of survival of their patients [abstract].Am J Respir Crit Care Med. 1998; 157: A304Google Scholar There are no near-perfect systems of prognostication, nor clinicians who can predict with near certainty, early in the course of an acute illness, that a trial of therapy will result in death. Even the most highly validated models (eg, APACHE [acute physiology and chronic health-care evaluation]) are not used appropriately to define prognoses of individual patients. If the best tools and most knowledgeable clinicians can't prospectively predict mortality in the sickest patients, in whom impending death should be most evident, then we must not allow the less experienced to make unilateral life and death rulings without some mandatory process of checks. The potential for abuse is too great and disparities of approach possible, even for the well-meaning.7Satcher D Pamies RJ Multicultural medicine and health disparities. McGraw Hill, New York, NY2006Google Scholar Consider the following: (1) an institutionalized 80-year-old patient with late-stage panvascular disease and septic shock refractory to three pressors and multiple organ failures; (2) a previously healthy 30-year-old patient with staphylococcal toxic shock refractory to three pressors, and multiple organ failures, who has just survived two cardiac arrests; (3) an institutionalized 80-year-old patient with late-stage Alzheimer disease who lacks capacity and whose prior wishes are not known is breathing at a rate of 50 labored breaths per minute due to acute severe pneumococcal pneumonia; and (4) a 50-year-old patient with amyotrophic lateral sclerosis with shortness of breath with no acute cause, and acute-on-chronic hypercapnia causing obtundation. If allowed, many clinicians might unilaterally withhold CPR from all or some of these patients, and I suspect there are physicians who do so now. But there are many others who would seek to determine the predilections of patients and to actuate a process of transparent consent. Determining whether CPR or other life-sustaining therapies are clinically appropriate is a complex calculus. Clinicians consider the trajectory of preadmission and acute illnesses, in the context of the patient's values (ie, the quality and quantity of life the patient would find acceptable). And they consider the poor outcomes following CPR in hospitalized patients. Even if we exclude the importance of values, which is arguably most germane and variable, every patient presents a different combination of demographic and pathophysiologic effectors. Every physician has varying knowledge, predilections about end-of-life issues, and recent experience. Even our mood or personal life might impact how we approach the calculus. When decisions regarding life vs death are at stake, the approach must not depend on luck of the draw: who is in the emergency department or ICU that night. The ground rules should not vary arbitrarily. Nonetheless, if the clinician feels that CPR is inappropriate, requiring him to offer it prioritizes the patient's autonomy over the physician's ethical obligation to beneficence and nonmalfeasance.1Carrese JA Sugarman J The inescapable relevance of bioethics for the practicing clinician.Chest. 2006; 130: 1864-1872Abstract Full Text Full Text PDF PubMed Scopus (30) Google Scholar It may require the physician to violate the, albeit lesser, professional obligation to responsibly use limited medical resources.8Medical professionalism in the new millennium: a physician charter.Ann Intern Med. 2002; 136: 243-246Crossref PubMed Scopus (1560) Google Scholar Physicians are not required to provide futile care.9American Medical Association. Code of medical ethics: E-2.00 opinions on social policy issues. Available at: http://www.ama-assn.org/apps/pf new/pf online?f n=browse&doc=policyfiles/HnE/E-2.035.HTM&&s t=&st p=&nth=1&prev pol= policyfiles/HnE/E-1.02.HTM&nxt pol=policyfiles/HnE/E-2.01.HTM&; accessed January 5, 2007Google Scholar Unfortunately, there are no objective, incontrovertible metrics for defining futility,10Truog R Brett AS Frader J The problem with futility.N Engl J Med. 1992; 326: 1560-1564Crossref PubMed Scopus (364) Google Scholar so its evocation to make life-and-death decisions in daily clinical practice may yield arbitrary and unjust outcomes. Unilateral DNR without informing patients is problematic for the ethical reasons cited above. It is legally perilous since reasonable patients would certainly want to know (the primary legal standard) and most doctors would not withhold without vetting with the patient (a secondary legal standard). Some courts have ruled that even when physicians agree unanimously regarding medical futility, patients or their surrogates should determine whether to withdraw life-sustaining therapies.11Judge rejects request by doctors to remove a patient's respirator. New York Times. July 2, 1991. Available at: http://query.nytimes. com/gst/fullpage.html?sec=health&res= 9D0CE4DC123BF931A35754C0A967958260; accessed April 25, 2007Google Scholar Accordingly, the most prudent and ethical approach today is to use existing mechanisms to verify with other practitioners that CPR is more likely to prolong dying than to promote meaningful survival, and then to communicate the assessment to patients or their surrogates. Patients or health-care proxies often require time to accept the medical facts and to prepare themselves emotionally for the loss of a loved one. Lay persons infrequently understand the poor prognosis following CPR and many (but not all) opt out after a process constituting informed consent.12Murphy DJ Burrows D Santilli S et al.The influence of the probability of survival on patients' preferences regarding cardiopulmonary resuscitation.N Engl J Med. 1994; 330: 545-549Crossref PubMed Scopus (475) Google Scholar Great care should be taken not to coerce; the manner in which physicians present options can preordain patients' decisions. Ethics committees, family clergymen, and social workers may help families to understand the medical opinion; and with time, most families accept that CPR is more likely to prolong dying (and the accompanying suffering). This process is complicated by the fact that very ill patients often lack capacity, so conversations occur with family members or healthcare proxies who may not make choices consistent with the patient's wishes.13Uhlman RF Pearlman RA Cain KC Physicians' and spouses' predictions of elderly patients resuscitation preferences.J Gerontol. 1988; 43: M115-M121Crossref PubMed Scopus (394) Google Scholar When clinicians are certain that CPR will only harm the patient but patients or their proxies disagree, doctors may recuse themselves. They can explain their position and assist transfer to another practitioner or health-care institution willing to provide CPR (and other life-sustaining therapies). Clinicians practicing in the State of Texas can actuate a formal, state-sanctioned process to certify, through multiple opinions and an explicit process, the inappropriateness of life-sustaining therapies. If other physicians or health-care institutions agree to provide the therapies, transfer is effected. If not, Texas allows unilateral withdrawal of life support (paramount to “no CPR”) after a sufficient period of time for patients' recourse.14State of Texas health and safety code, chapter 166, section 166.046. Procedure if not effectuating a directive or treatment decision. Available at: http://tlo2.tlc.state.tx.us/statutes/hs.toc.htm; accessed April 12, 2007Google Scholar Our federalist democracy allows each state to craft statutes within constraints of applicable case law, decided by the US Supreme Court. End-of-life statutes vary from state to state because the Supreme Court has not explicitly ruled on a case hinging on unilateral withholding of CPR. Note that Texas does not allow a single individual to withhold or withdraw CPR and life-sustaining therapies but rather a consensus-producing process includes disclosure to the family, which then has the opportunity to provide for alternative health care. The Texas solution is verifiable and requires a transparent due process. This approach likely conforms to moral standards of a majority of US citizens. While tyranny of the majority is a risk of democratic governance, the minority here is comprised of patients who “demand” therapies that burden the patient and society. This tension raises the question of an individual citizen's rightful claims on society. There are no constitutional “rights” to unlimited health care. As “baby boomers” retire, we will not have sufficient national wealth to provide unlimited health care to all citizens. Increased taxes (on a smaller number of taxpayers), reduction of wasteful spending and rationing will be required. Since end-of-life care entails the greatest cost, with the least return (in quality-of-life-years saved), after eliminating waste, it is a reasonable place to begin limiting health-care spending. Rationing is not a “four-letter word” if the alternative is an extended trial of critical care for a nonagenarian with end-stage Alzheimer disease and multiple organ failure (who may not have wanted life-sustaining therapies but did not stipulate before incapacity) that prevents immunizing 100 uninsured children. While rhetorical, a reasonable argument can be made that this is already occurring. Rationing already occurs to some degree and is inevitable because it will protect the autonomy and availability of basic health care to the many most likely to benefit. Society will choose not to provide CPR for predefined conditions in which its likelihood of “success” is too low to justify expenditure of limited resources. The only other unacceptable option will be to deny more basic care to patients with greater likelihood of long-duration, higher-quality survival. If these decisions are made prospectively and with major stakeholders at the table, followed by widespread public disclosure, unilateral DNR could be the most ethical available approach to the dying (eg, progressive, irreversibly terminal conditions like end-stage Alzheimer disease, refractory metastatic cancer, and final-stage congestive heart failure, and obstructive lung disease). The “slope” need not be “slippery.” So long as the decision rules are created by consensus and applied uniformly, society-determined DNR may be one ethical method of cost containment for the future. Citizens who disagree could fight to change the consensus or vote with their feet. In conclusion, truly unilateral DNR, in which a single practitioner withholds CPR from a patient without disclosing to the patient, is unethical because it is potentially arbitrary, deceitful, and ignores patient autonomy. Unilateral DNR, in which the system withholds or withdraws, determined by carefully orchestrated processes,15Tomlinson T Czlonka D Futility and hospital policy.Hastings Center Rep. 1995; 25: 28-35Crossref PubMed Scopus (50) Google Scholar and crafted a priori by consensus is ethical and perhaps inevitable.