Working with the Law

On August 23, 1988, eight experts in medicine, nursing, health care administration, law, and ethics came together to discuss constructive ways that clinicians can work with the law in helping patients and their surrogates to make decisions about the use of life-sustaining treatment. Echoing these themes, this Grand Rounds session underscores the consistency between the law and an emerging clinical and ethical consensus. Here are some excerpts.

BERNARD LO, M.D.,
Associate Professor of Medicine and Director, Program in Medical Ethics, University of California/San Francisco

The law sets wide boundaries and within that, you have to turn to sound medical or nursing practice and medical ethics to really help you decide what to do in a particular case.… As the courts have developed more explicitly the legal consensus, I think physicians, philosophers, and the medical literature have come to very much the same ideas: that a competent patient may refuse treatment, even if those treatments might prolong life. And, for an incompetent patient, an appropriate surrogate may refuse treatments on behalf of the patient. We’ve filled in some of the details as well, and those treatments can be anything, ranging from dialysis to mechanical ventilation. I think the newest piece to the consensus is the idea that artificial nutrition and hydration is to be regarded like other kinds of medical care. It is as appropriate to stop treatment as it is not to start it in the first place. There’s no distinction between withdrawing and withholding. So I think there’s really tremendous agreement from the medical perspective as well as the legal one.

GEORGE J. ANNAS, J.D., M.P.H.,
Utley Professor of Law and Medicine, Boston University School of Medicine

Conflict is a real problem… but it’s not fundamentally a legal problem. If we’ve got conflict, let’s sit down and try to figure out what the source of that conflict is. Let’s have a case conference; let’s call in some people. Let’s talk about it first. Most of the people that I deal with in hospitals tell me that 90 to 95 percent of these cases can be solved by getting everyone in the same room, sitting them down, and talking. So if you all know what is in the best interest of your patient, there is no reason to go to court to protect your patient. You may still want to go to court to protect yourself. But it is not necessary.

DARLENE JELINECK, R.N., C.F.N.P.,
President, American Geriatrics and Gerontology, Inc., Albuquerque, NM

Another myth is that nurses think it is not their responsibility to get involved in all this. That it’s up to other people and that if [nurses] don’t take part, then the [aren’t doing] any decision making. And of course I believe that they just make a decision by not becoming involved.

EDMUND D. PELLEGRINO, M.D.,
Director, Center for Advanced Study of Ethics, and John Carroll Professor of Medicine and Medical Humanities, Georgetown University

We need to make a distinction between an effective and a beneficial treatment. We have lots of effective treatments. We can treat pneumonia when the patient’s dying of malignant disease-perfectly effective, but of no benefit to the patient. Treatment ought to be not only effective but beneficial in the patient’s terms.

JOANNE LYNN, M.D.
Director, Center for Aging Studies and Services, and Co-Director, ICU Research Unit, George Washington University

The core principle still must be that the health care system exists to promote the interests of patients … [and] nursing home residents. And the hallmark of our doing it right is that we should be doing the best thing for the patient at that time from the patient’s own perspective. And, as long as you’re doing that, there’s very little else that the law will have to say about it.