The current issue of the New England Journal of Medicine features a letter from Robert L. Fine, M.D. in response to a harsh critique of the Texas Advance Directives Act by Robert T. Truog, M.D. Truog’s Tackling Medical Futility in Texas is freely available (although it might require free registration). Here is an excerpt from Truog’s critique:
On the other hand, the Texas law’s effectiveness as a mechanism for reaching closure in difficult cases is also what makes it most problematic. It relies on a due-process approach that is more illusory than real and that risks becoming a rubber-stamp mechanism for systematically overriding families’ requests that seem unreasonable to the clinicians involved. During a 2-year period at Baylor Health Care System, for example, the ethics committee agreed with the clinical team’s futility assessment in 43 of 47 cases.
These disputes occur not between physicians and patients but between physicians and families. Some families are trapped in normal psychological responses to bad news, and others are divided. Some have dubious motives, and some engage in magical thinking. Ultimately, physicians must choose between the easy path of acceding to the family’s medically inappropriate request and the hard path of undertaking further committee review and possible unilateral action. We should respect the family’s preference when possible, but we should never use a patient as a means to the family’s end if the patient does not benefit.
This problem will not go away, but after 8 years of practice, the Texas process remains the best approach when family requests conflict with professional obligations at the end of life.
As much as we appreciate Truog’s criticisms of the Texas Advance Directives Act, we thought it would be more interesting and useful to get the reaction of Bob Kafka, who has been leading efforts of disability advocates and activists in Texas to get the law in that state changed. Here’s what he said:
Dr Fine illustrates the arrogant “god like” attitude that unfortunately many in the medical community have about anyone or any consumer involved process that questions their decision to withdraw treatment that results in the death of the individual.
Though each individual case is different and presents many complicated medical issues the underlying reality is that the Texas law allows doctors to overide the stated wishes of the individual and/or the family. The ethics committee have no outside public member and is composed of the doctors peers who work at the hospital. All advocates were asking was to have adequate protections in the law. Dr Fine led the political juggernaut that killed legislation last Texas legislative session. The fact is when a person’s life is at stake there should be a presumption for survival. In Texas however you get more protections and appeals if you are on death row than you do under the Texas Futility Law.
NOT DEAD YET of Texas
Don’t Mourn – Organize!