As a matter of fact, the word “futile” is nowhere in the law, which is actually, Chapter 166 of the Health and Safety Code, the Texas Advance Directive Act (TADA).
I have just finished a Clinical Ethics class in my work on my Master’s in Bioethics. From a critique by the instructor (a well-known, Christian physician who was one of the first hospital-based clinical ethicists) on one of my evaluations, comes this comment on “futile” care:
You stated in your Narrative that “the NICU team believes that it is time to consider removal of support, as it appears to be causing the child pain without hope for her recovery.” This sounds like “virtually futile and inhumane”. (Emphasis mine.)
The instructor was pointing out that I could have used wording from a famous medical case. However, I don’t like the word “futile,” because it is not as clear to everyone as my longer, more specific definition. (And, as you’ve seen, I like my words and love to explain.)
Not many people would disagree that it is futile to do chest compressions on a very old demented patient with brittle bones. To describe a patient like this is not to say that “old,” “demented,” or “brittle bones” makes anyone less valuable. It simply acknowledges that there is less chance of healing and recovering from a heart attack and the decreased blood flow to the brain as we age, that brittle ribs will break and puncture organs, and that demented patients will never be able to understand why we hurt them. We don’t want the patient to die when we deem that CPR is inappropiate, we just don’t believe the evidence indicates that the patient will survive our treatment. In fact, we may make things worse by increasing their pain in our “futile” attempts.
TADA does not mention “quality of life,” only preferences, wishes, directives, medical and physical health, refusal, and appropriate or inappropriate care. The only mention of insurance in Chapter 166 is to make it clear that the insurance can not be involved in or affected by decisions concerning Advanced Directives.
In contrast to some sensional accusations, the ethics committee does not make “life-value judgements” or determine whether someone’s life is “worth living” as many are calling it. Chapter 166 defines “irreversible condition,” “terminal condition,” “life-sustaining treatment,” and many other terms. However, there is no mention of “quality of life” or the “value” of anyone’s life. But, sometimes the treatment is not really treatment, only prolonged infliction of pain.
There is certainly no conspiracy or agreement, unspoken or not, among “hospitals,” or the people who work in hospitals, around Texas. First, conspiracies this complicated don’t often hold up for long, that’s just human nature. Second, does this picture seem consistant with the nurses, doctors and social workers that you know? (Unfortunately, too many “ethicists” might have us make these sorts of agreements, but that’s a different matter.)
Much more likely is that the medical judgments of one doctor and ethics committee are trusted to be valid by the other hospitals and that the other facilities would reach the same conclusion if they were to examine the patient and the record.
It is not necessary to transfer the patient from one hospital to another, as some are asserting. The law, in 166.045 and in 166.046, specifically states that whomever (the physician, the patient or whomever is making decisions for the patient) disagrees with the ethics committee, can petition a court for a delay if
” a physician or health care facility that will honor the patient’s directive will be found if the time extension is granted.”
I do wonder whether the fact that a patient survives ten days after the ethics committee indicates that he or she is stronger than first thought. I would sure want to reevaluate my earlier decision and celebrate if the care given by myself and my colleagues had been more successful than we predicted.