Jocelyn Downie on Medical Futility at the AABHL

The AABHL conference on medical futility kicked off last night with a lecture by Jocelyn Downie titled "Cutting the Gordian Knot of Futility: Responding to the Unilateral Withholding and Withdrawing of Potentially Life-Sustaining Treatment."  

After reviewing relevant court decisions from New Zealand and Australia, Professor Downie outlined the standard problems with having end-of-life policy developed through the judiciary (e.g. insufficient time, complex issues).  More importantly, she argued that there are a number of concerns with the current status quo in New Zealand and Australia which generally permits physicians to unilaterally withhold and withdraw life-sustaining treatment that they deem inappropriate.  Indeed, she called the cases permitting this "ethically indefensible."  Among other concerns, deferring to physicians is dangerous, Downie explained, because they have known biases such as devaluing life in some disabled conditions.

Professor Downie argued that we must focus on legislative reform after engaging in both values clarification (e.g. autonomy, equality, distributive justice, humility, pragmatism, access to justice, conscience) and conceptual clarification (e.g. "futility," "necessaries of life").  She argued that physicians have a lawful excuse to withdraw in only six circumstances:

1.     Informed consent

2.     Physical impossibility

3.     Ability to transfer

4.     Valid resource allocation policy

5.     Statutory authorization or obligation

6.     Order from court or tribunal

Given her pessimism about the ability of courts to appropriately handle these cases, Professor Downie was especially supportive of specialized tribunals like the CCB.  She encouraged more research about their strengths and weaknesses compared to courts.