Futile Care Theory: Canadian Doctors Refuse Cancer Patient Request to be Rescusitated

Should a dying cancer patient’s request to have CPR at the end of his disease process be honored by doctors, or if they think it is inappropriate, should they be able to unilaterally refuse resuscitation?  That is the question posed in a Canadian lawsuit in which a cancer patient clearly and specifically asked for CPR.  From the story:

As Mann Kee Li lies in hospital fighting dire prospects, his family is engaged in a life-or-death struggle, not with the cancer spreading through his body, but with the doctors treating it. Li, a 46-year-old Toronto accountant and father of two young boys, wants doctors to use all medical measures possible to save him in the event of a life-threatening emergency. He made those intentions clear to his doctors at Sunnybrook Health Sciences Centre when he entered the hospital in August. He wrote it in a power of attorney document and confirmed it in a videotape statement, his lawyers say. While his doctor initially agreed to respect those wishes, physicians unilaterally reversed the decision a week ago without consultation and imposed a “do not resuscitate” order, his family alleges.

The doctors say the decision should be up to them:

The hospital and its doctors, meanwhile, argue the ultimate decision on whether to resuscitate a patient rests on physician judgment rather than patient wishes. “When clinical teams determine that further interventions would have no benefit to the patient . . . ethically and legally, health-care providers are not obliged to provide interventions that lie outside the standard of care and would be of no benefit, and indeed may well cause harm to a patient,” said Sunnybrook executive vice-president Dr. Keith Rose in a written statement. Li’s two treating doctors — Robert Fowler and Cameron Guest — declined an interview request. But their lawyer, Harry Underwood, told a court Friday that any order compelling doctors to administer CPR to Li would be “unconscionable.” “He should be allowed to die in peace without this gross and monstrous intervention.

But the “monstrous intervention” is precisely what Li wanted.  In other words, the doctors aren’t just refusing to abide by the family’s desires—but what the patient clearly and explicitly stated he wanted:

On Aug. 12, Toronto lawyer Mark Handelman interviewed Mann Kee Li for the purpose of preparing a power of attorney document detailing Li’s wishes for care in hospital. Handelman videotaped the interview.

Here is a partial transcript included in Handelman’s affidavit submitted in court:

(In referring to our afternoon meeting) “Are you aware that you told me that you wished to have all things done to continue your life?” Mann Kee nods affirmatively in response.

“Are you aware that you may no longer be able to make decisions, that you could lapse into a coma, never to regain consciousness?” Mann Kee nods affirmatively in response.

“In those circumstances would it still be your wish to have your life continued?” Mann Kee nods affirmatively in response.

“For as long as possible?” Mann Kee nods affirmatively in response.

“Are you aware some of the measures to continue your life could be painful to you?” Mann Kee nods affirmatively in response.

“For example, if your heart stops and doctors need to perform cardiopulmonary resuscitation they may have to pound on your chest?” Mann Kee nods affirmatively in response.

“That could break some of your ribs?” Mann Kee nods affirmatively in response.

“And that a broken rib could puncture a lung?” Mann Kee nods affirmatively in response.

“Do you want them to do that if necessary?” Mann Kee nods affirmatively in response.

“Even if you will never regain consciousness?” Mann Kee nods affirmatively in response.

While Li’s desires certainly would not be mine, he clearly made an informed decision about what he wanted.  We used to be told that such choices are sacrosanct. But then when people decided to fight to the bitter end for life, we learned that “choice” only applies if the decision is to stop treatment, not if it is wanted. In other words, choice can be a one way street toward death.

It seems to me, that Li’s desires should prevail—unless the CPR would be physiologically futile, that is, that it would not serve to lengthen his life.  In such cases—and this may be one—it is ethical to refuse the intervention. (I don’t see how doctors can argue that it isn’t in his best interests, say, because of the suffering it could cause, when he asked for that very intervention despite knowing these things.)

Still, this is a very worrisome case. As the old saying goes, bad facts make bad law—and these are horrible facts. Li’s decision to be resuscitated despite his dying of metastatic cancer falls at the far end extreme of what might be efficacious.  But if he loses—unless based on a factual finding of non efficacy—it could lead to the establishment of a legal principle allowing doctors and bioethicists to overturn a patient’s desires for efficacious life-sustaining care based on their values.  Once qualitative futility became legalized, such refusals wouldn’t stop with last ditch, dubiously efficacious,  CPR.

Like I said, bad facts make bad law.