Medical Indication

Determining what can and should be offered as a medical treatment is often misunderstood in the end of life context. When families begin requesting treatments or treatment plans that physicians feel uncomfortable with, conflict can ensue (The definition of conflict from the CONFLICUS Study  (adapted from Studdert), “Dispute, disagreement, incompatibility, opposition, or difference of opinion involving more than one individual and related to the patient’s management or to interpersonal conflict.”) It may only ever be an internal conflict with physicians feeling they are being asked to act in a manner that is inconsistent with their training or their professional ethics. But the language is often too ambiguous and as a result, physicians have ultimately provided treatments that they disagreed with. Sometimes, they provided treatments that they know to be medically futile.

“Futile”, “not in accordance with professional ethics”, and even “offered” are all loaded terms in this conversation. We argue that it is imperative that the critical care community specifically, and the medical community broadly, better standardize the language they use when considering treatments and the consent process. 

In keeping with the Mission of HCQC, we are most interested in the legal terminology that can help clarify our obligations. The legal term that is most useful in determining what ought to be offered to patients and their families is the “Standard of Care”.  Treatments that fall outside the standard of care, need not be offered to patients whether or not they or their surrogates are requesting them. Looking back to the graphic of the consent process, a patient or surrogate does not play a decisional role until step 4. But, as the Supreme Court of Canada Justice Karakatsanis asked of lawyers for the physicians in Brian Cuthbertson, et al. v. Hassan Rasouli by his Litigation Guardian and Substitute Decision Maker, Parichehr Salasel (Ontario) (Civil) (By Leave) 34362 (at 112:00), regarding the fact that the standard of care has historically only been used to determine medical negligence cases, “shouldn’t we be looking for the right decision as opposed to one of several non-negligent decisions?” Thus it appears that lawyers and the courts are weary of the ‘Standard of Care’ as a means of determining when a treatment shouldn’t be offered.

In the Court of Appeals decision of the same case, Justices Moldaver and Simmons found that the Health Care Consent Act “does not require doctors to obtain consent from a patient or substitute decision-maker to withhold or withdraw “treatment” that they view as medically ineffective or inappropriate.” Medically ineffective is a useful distinction, but inappropriate again lends itself an overly broad interpretation.

In medicine, the notion of “clinical indication” has long been used to determine precisely what treatments should be offered to a patient. While the courts have spent less time interpreting this concept, it would be difficult to understand how a court would rule in such a way as to require a physician to act outside of professionally determined standards (ie. re: clinical indications). As much was said by Justice Leggatt in: Re J [1992] 4 All E.R. 614 (C.A.), “I can myself envisage no circumstances in which it would be right directly or indirectly to require a doctor to treat a patient in way that was contrary to the doctor’s professional judgment and duty to the patient.” The professional judgment being referred to is the judgement to determine what is clinically indicated.

Regarding end of life care, and when it is appropriate to use (or continue using) treatments aimed at prolonging or restoring life, the Critical Care community needs to better articulate what it feels constitutes appropriate medical indication. Any treatments felt to fall outside of medical indication, we argue, need not be offered to a patient or surrogate, even where they are demanded, and that this is not a matter of consent.

Certainly, the impending Supreme Court decision regarding Hassan Rassouli may provide further clarity to this position. Check back later in 2013 for updated interpretations.