Physician Liability: Withdrawing and Withholding Life Sustaining Care From Conscious, Non Terminal, Incompetent Patients – Part II
There are different standards that must be appreciated and respected before a physician can support a decision to withdraw life sustaining treatment from a non terminal and incompetent patient.
This scenario requires the highest degree of protection for the patient. Our fundamental rights are the most important when we are the most vulnerable. Patients in this category are weak, often confused and subject to the effect of bias and undue influence. When illness requires life sustaining treatment family members may experience sympathy for the patient as well as opportunity to end their burden of caring for the patient. Some family members have said to others: "you have done so much, your life has been put on hold, how can we afford to pay for this care, etc. This can result in a request to withdraw or withhold artificial life support for what may be seen as being in every one’s best interest. This often occurs in adult children caring for an elderly parent or spouse.
This responsibility for caring for patients at home falls predominantly on women. Women often care for both an elderly parent and their young children at the same time. Many, as well, must work to support the family. Yet, this understandable burden cannot be used as a justification or rationale for the termination of life sustaining treatment. Physicians must never allow themselves to place the needs of the family above the best interests of the patient. Physicians must not allow family interests to become a guide to decision making – even if it results in volatile or abusive confrontations with, or threats by, family members.
Withdrawing life sustaining care from a conscious, non-terminal patient, even if competent who refuses artificial life support, is thwart with risk for the treating physician. In a California case that was ultimately decided be the State Supreme Court, barred withdrawing artificial nutrition and hydration from a minimally conscious, non-terminal patient when there was not clear and convincing evidence that refusing treatment would be what the patient would want if able to speak for himself.
The function of a standard of proof is to instruct the fact finder concerning the degree of confidence our society deems necessary in the correctness of factual conclusions for a particular type of adjudication, to allocate the risk of error between the litigants, and to indicate the relative importance attached to the ultimate decision…. Thus, “the standard of proof may depend upon the ‘gravity of the consequences that would result from an erroneous determination of the issue involved. …courts have applied the clear and convincing evidence standard when necessary to protect important rights.
The legislature in Pennsylvania dealt with this dilemma by specifically codifying a limitation on physicians precluding the withdrawal of life sustaining treatment in non-terminal patients whether competent or not.
Health care necessary to preserve life shall be provided to an individual
who has neither an end-stage medical condition nor is permanently
unconscious,… 20 Pa.C.S. §5462(c)(1).
If a demand is made by a surrogate decision maker to terminate life sustaining care in a non terminal, conscious and incompetent patient, physicians, as a matter of customary practice, should request immediate review by the ethics committee as well as an experienced clinical bioethicist, followed by written recommendation which should be placed in the patient’s chart. This will provide support and protection against liability risk for all physicians on the case, and protect the patient. Thereafter, if there is any disagreement between the physicians, ethics committee member, bioethicist, or surrogate decision makers, or other family members or close friends, consideration should be given to petition the court for review.