August 20, 2013 | Posted By Wayne Shelton, PhD

In my work as a clinical ethics consultant, I have seen many situations where dying patients or their surrogates make decisions that cause considerable concern and moral stress to physicians, and particularly to nurses who are continually at the patient’s bedside. In an era where respect for patient autonomy is the paramount ethical value, we are obligated to be respectful of these preferences and decisions. But what about the cases where those preferences and decisions lead to procedures and treatments at the end of life which are entirely contrary to sound medical advice? Should physicians follow these directives even if this means that the patient will suffer needlessly and the physician will be performing painful, futile treatment?

Ethics consultations are frequently called on to address issues at the end of life.  One of the most pressing issues involves dying patients for whom CPR would be medically inappropriate. The patient or surrogate will not give consent for a DNR order, insists on remaining full code and that “everything be done” in spite of a prognosis of imminent death.  A case I read about a few years ago illustrates this concern.

The patient is 70 pound woman in her mid-thirties with a complex medical history that includes wasting syndrome, anal cancer, sacral and pressure ulcers, and a history carcinoma, which the doctors say may be recurring now. She was admitted in the Emergency Department of the hospital with nausea, abdominal pain and vomiting. At the time of the ethics consult, she has an obstructed bowel syndrome and her kidney function is decreasing. She is malnourished and does not eat. She has had a G-tube in the past, but does not have one currently, due to the obstruction. She would need a biopsy to confirm a reoccurrence of carcinoma, but is not a surgical candidate. She is full code. Her physicians believe she is nearing the end of her life.

The patient is still alert and able to express her preferences. Although she is deemed to have capacity, she often states her preferences with ambiguity and frequently changes her mind. Her physicians have had candid conversations with her about her medical condition and they have recommended DNR and hospice care, which she has refused. In the past she has agreed to DNR, but now she indicates she wants CPR if she stops breathing.

How should the physicians view their obligations to this dying patient for whom palliative care is the only viable medical option?

An ethics consultation was requested to address this last question: whether we could clarify the physician’s obligations. In fact what I think is being asked in this case is: Do physicians have an obligation to provide inappropriate medical treatment to a dying patient or at least, treatments that are not within the standard of care. From my experience it seems to me that physicians’ concerns about acting consistent with their medical judgments vary in such cases. One of the most common concerns, however, is the risk of legal liability due to not following the patient’s directives. Practically all physicians, in my experience, believe the ethically right course of action is to forego CPR. Yet, not all physicians are comfortable acting in a manner which seems, to most of us, the right thing to do and even obligatory.

It also seems apparent to me that in hospitals across the state and country, not all ethics consultation services would see this case in the same light, possibly for reasons other than their own ethical considerations per se. I know of one ethics service that routinely recommends that physicians perform CPR, even in the face of such dire medical circumstances if there is no DNR order. My sense is that ethics consultations services are almost always forced to follow the lead of the particular interpretation of state law of hospital legal departments, which greatly reflects particular risk dispositions.  Again, based on my anecdotal experiences, legal departments often see risks of legal liability differently and more cautiously than ethics service. so the As ethics consultation services usually frame recommendations with the hospital legal perspective in mind, their recommendations to perform medically inappropriate CPR without a DNR order may vary from one hospital to another.

In the case presented above, the physicians had run out of therapeutic options and the patient was near death, though communicative. It was highly predictable that she would lapse into unconsciousness within a few days, and would stop breathing, which in fact did happen. If the physician would decide to perform CPR on this patient, it would entail doing an aggressive intervention that would assault this delicate patient’s body to no avail. One could say that CPR is simply medically futile and, therefore, something the physician was not obligated to do. Not following a patient’s preferences is a serious matter, but in this case the competing moral obligation was not to cause harm by performing a violent and unnecessary procedure. Even without a formal DNR order in the patient’s chart, the physician could have decided not to perform CPR on this patient, if he deemed this the appropriate medical course of action. What is more, I believe physicians should be transparent and say to the patient or surrogate, “I can’t in good conscience do what you are asking me, because it will only cause harm and provide no benefit”. When physicians are willing to make this medical judgment, the ethics service should be supportive in consultation with the legal department in these circumstances. In the end, ethics advice to a physician is just that: advice. When the actual moment comes, when the patients stops breathing and heart stops, the physicians decide for themselves what they will do.

In cases like this one, physicians want to do what is right. But they want to be sure they are within the guidelines of the law. How the physician eventually acted in this case is not as relevant as the fact that physicians across the country, across the state, in the same hospital or even on the same service often differ on how they manage such cases. Clearly this type of case goes to the heart of the intersection between clinical ethics and palliative care. Physicians need to be better prepared to utilize the services of palliative care and ethics consultation at a point where there is more time for discussion and planning so as to avert end of life crises. Such a change will require more education and more definitive practice standards in the management of seriously ill patients.

The Alden March Bioethics Institute offers a Master of Science in Bioethics, a Doctorate of Professional Studies in Bioethics, and Graduate Certificates in Clinical Ethics and Clinical Ethics Consultation. For more information on AMBI's online graduate programs, please visit our website.

3 comments | Topics: Beneficence , Clinical Ethics , Consultation , End of Life Care


Renee Ashdown

Renee Ashdown wrote on 09/09/13 4:15 PM

Your suggestion of what a physician might say to a patient cuts right to the heart of the matter. Wonderfully put!
Richard R. Pesce,MD,MS, FCCP, FACP

Richard R. Pesce,MD,MS, FCCP, FACP wrote on 09/11/13 8:38 PM

Wayne, this is a matter central in the core of professional practice. Autonomy is not without limits, patients do not usually have medical eduction to make sophisticated therapeutic choices. At the point of the patient's demise the physician is left to make the decision to proceed or not on his own especially in the case described. This decision is also at the core of therapeutic relationship which is an unequal but necessary one. Autonomy of the patient and the obligation and autonomy of the physician will clash. Do no harm becomes paramount. We are not obligated to do that which is not indicated. Early ethical consultation is an important component is these cases. Further it needs to addressed in informed consent. For instance in our consent process for ecmo there is a section which outlines that if the physician team carrying out this treatment comes to place where continuance is of no use then we reserve the right to stop it. This is discussed with the family and patient if possible.

Further, on admission to hospital it is my position to insist that all patients be asked who will speak for them if they cannot speak for themselves. Your essay is timely and to the point and does cut to the center of the issue.
Robert Swidler

Robert Swidler wrote on 09/11/13 8:52 PM

That was a thoughtful, well-written and persuasive article Wayne. Concise too!

I fundamentally agree with you: there is a continuum - in one stage are cases where patient or surrogate can agree to or decline a DNR order. But then there is a stage of unequivocal medical futility which should be beyond the province of patients and surrogates.

Having said that, I wish you struggled more with the serious and real public policy issue: Assume the law said: "Patients can choose whether to consent to or decline a DNR order .. unless the doctor says it is futile." The concern is that suddenly all or most DNR orders will be issued as futility DNR orders.

I'm in your camp. I think the futility-creep issue can be addressed through procedural protections and clear clinical standards. But it is a very, very real concern. Your example is a pretty clear case. But we both know that doctors will vary widely in what they will pronounce as futile.


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