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Autonomy, Futility, and the Limits of Medicine

Published online by Cambridge University Press:  10 December 2009

Robert L. Schwartz
Professor of Law at the Institute of Public Law, University of New Mexico School of Law.


Most of us find the surgeon's surprise at this patient' request understandable, and it is hard to imagine any surgeon acceding to this patient's demand. On the other hand (the one left), the patient is right—the surgeon is denying his technical skill because his values are different from those of the patient, whose values the surgeon does not respect. The autonomy of the patient is being limited by the values of the doctor whose own interests, other than his interest in practicing medicine according to his own ethical values, would remain unaffected by his decision to provide the service.

The Caduceus in Court
Copyright © Cambridge University Press 1992

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1. One might argue that the surgeon's only real concern is over the competency of the patient, but there is no reason outside of this medical request itself to question that competency. Indeed, we accept the fact that competent prople can make unusual requests—requests that the vast majority of us find strange—and still be competent. We are even more likely to find unusual behavior (such as various kinds of abstinence and abnegation) consistent with competence when the behavior is religious, or quasi-religious, as it is here. In any case, there is very little left to any meaningful notion of competence if we determine a patient's competence to choose a particular form of treatment solely by reference to the treatment choice he makes.Google Scholar

2. Analogously, the American Medical Association has found it unacceptable to have physicians administer lethal doses of drugs to execute condemned prisoners, even if the condemned prisoners request the administration of the drugs because the alternative methods of ececution are more painful or degrading. Although the administration of the relevant drugs is appropriately limited to physicians, their use for this purpose is simply outside of the scope of medicine, whatever the prisoner patient may desire.Google Scholar

3. A great deal has been written about the Wanglie case. Several relevant articles are found in the July–August 1991 issue of the Hastings Center Report, which includes a summary of the facts prepated by ronald Cranford of the Department of Neurology at the hospital in which Mrs. Wanglie remained a patient at her death. The facts are fleshed out in various newspaper articles: Colen. Fight over life. Newsday 1991 jan. 29: City p. 57; Belkin. As family protests, hospital seeks an end to woman's life support. New York Times 1991 jan. 10: Sec. A, P. 1; Steinbrook. Hospital or family: who decides right to die? Los Angeles Times 1991 Feb. 17: Part A, p. 1.Google Scholar

4. See note 3. Colen. 1991:57.Google Scholar

5. Conservatorship of Wanglie, No. PX–91–283 (Minn., Hennepin Co. Dist. Ct., July 1, 1991).Google Scholar

6. The hospital argued that Mr. Wanglie should be disqualified from making the dicision for his wife because dicision was not in the “patient's best personal medical interest.” Cranford. Helga Wanglie's ventilator. Hastings Center Roport 1991; Jul.–Aug.: 23—4.Google Scholar

7. The courts have been unsympathetic to those who seek cryopreservation, as you might guess. For a description of the case of Thomas Donaldson, who did not convince a court to allow the removal and freezing of his head before his certain dealth from a brain tumor, see Corwin. Tumor victim loses bid to freeze head before death. Los Angeles Times 1990 Sep. 15: Sec. A, p. 28. As one might expect, the case was subsequently turned into an episode of L.A. law (copyright 1990).Google Scholar

8. To the extent these problems flow from the use of a “futility” exception to normal requirements of consent, they are cogently and thoughtfully expressed in Scofield. Is consent useful when resuscitation isn't. Hastings Center Report 1991; Nov.–Dec.: 28–6. As Scofield points out (in the context of CPR);Google ScholarIn reality the futility exception is a dishonest solution to the tragic choice that decisions to limit treatment represent. It purports to represent, but in fact departs from the fundamental values consent is intended to serve. It will not generate the conversation we need if we are to attain consensus about limiting treatment; nor will it make physicians sensitive in their dealings with patients, especially dying patients. It promotes a model of consent that is antithetical to setting limits in a democratic, caring manner. (p. 30)Google Scholar

9. Colen, Judge bars letting girl in coma die. Newsday 1991 Oct. 18: News p. 4.1.Google Scholar