In a criminal prosecution involving the care of the dying, Dr. Rajput explained, the basic elements must be proved: There must be a criminal act, and that act must be intentional. Acts involving terminal pain are not investigated unless a nurse, supervisor, or ethics committee is informed. Nurses are the most common informants.
“Almost all cases are in hospital settings,” said Dr. Rajput. “And there are three major categories: withdrawal of life-sustaining support with accompanying pain meds, the use of opioids and sedations, and terminal care that includes the use of fatal agents such as insulin, potassium chloride, and chloroform.”
In 1997, the Supreme Court endorsed terminal sedation as an alternative to physician-assisted suicide, intensifying the legal debate in the so-called right-to-die controversy.
“Long before the Supreme Court intervention,” said Dr. Rajput, “terminal sedation was a palliative care option to relieve physical or non-physical pain, or to produce an unconscious state before the withdrawal of life support.”
There are clinical safeguards for terminal sedation. These include ensuring the effectiveness of palliative care, obtaining fully informed consent from the patient, maintaining diagnostic and prognostic clarity with respect to the patient’s disease and lifespan, obtaining an independent second opinion, and providing documentation and review.
Double Effect and Futility
In the “rule of double effect” in palliative care (or providing treatment to relieve suffering even though a foreseeable, unintended consequence of that treatment is to hasten death), the difference between permissible and prohibited action relies heavily on the clinician’s intent, Dr. Rajput pointed out.
He quoted the article “The Rule of Double Effect—A Critique of the Rule in End-of-Life Decision-Making,” saying, “A proportionately good effect (relief of suffering) may overcome a foreseeable bad effect (causing death) … as long as the actor does not intend to accomplish the bad effect.”
Another concept—medical futility—leads to three conceptual possibilities at end-of-life care:
- The treatment does not provide positive effects;
- The radical treatment has side effects that outweigh any positive effect; or
- It is futile to treat a disease when the patient is suffering from a more real-time, life-threatening disease.
In the event of physiological futility, a physician can withhold the treatment modality on the basis of having no effect on patient care, Dr. Rajput explained. But the decision needs to meet professional standards, and the physician must inform the patient and his or her family and give them an opportunity to seek a second opinion.
But what if there is no physiological futility?
“If it’s a matter of the appropriateness of sustaining a severely deteriorated life,” said Dr. Rajput, “then the scope of professional judgment is limited. This should not be a unilateral medical judgment.” You must include the patient and their family in decision-making, and you may want to consult with your hospital ethics committee.
“The bottom line is, futility is an elusive concept,” said Dr. Rajput. “The term is used more to make value-laden judgments,” He added, “Avoid the word ‘futility’ in communication and documentation. It can stop conversation.” Rather, communicate your
goals of care and treatments.
To determine those goals, your clinical ethical reasoning should follow these steps:
- State the problem plainly;
- Gather and organize the data;
- Consider the patient’s goals and preferences;
- Ask if this is an ethical problem;
- Ask if more information or dialogue is needed; and
- Determine the best course of action and support your position.
The complete PowerPoint presentation of “Ethical and Legal Issues around Pain Management in Hospitalized Patients” is available on the SHM Web site at www.hospitalmedicine.org/microsite/index.cfm. TH