The Right to Health and the Medical Futility Debate

Posted by Catherine Deans on October 11, 2014

A right to health approach dictates that a patient is entitled to exercise her autonomy by giving or refusing consent to treatment.  However, the scope of this right is complicated where the treating physician has proposed the withdrawal of treatment on the basis it will not benefit the patient further or that its harmful side-effects outweigh its medical benefits. In such instances, can the patient employ her right to health to demand treatment even when the treating physician believes such treatment to be medically futile?

The issue of medical futility most commonly arises in situations involving incapacitated patients who require life-sustaining treatment, such as mechanical ventilation or artificial nutrition. In such situations, tensions may arise between the treating physician, who perceives that life-support will only sustain the patient’s biological functions without improving her well-being or prospects of recovery, and the patient’s proxy, who believes that the benefit of life-sustaining treatment is the extension of the patient’s life. A legal battle may ensue if they are unable to agree whether to withdraw treatment. Such disputes are becoming increasingly common for two primary reasons: first, medical technology is enabling physicians to artificially extend life for longer, and second, patients (or their proxies) are becoming increasingly confident about asserting their rights to make informed healthcare decisions.

In an ideal world, the autonomous healthcare choices of every patient would be satisfied.  However, medical treatment, in particular life-sustaining treatment, is expensive and resource-intensive, and providing life-support to one patient may prevent others from accessing scarce healthcare resources. Thus, from a public health perspective it is argued that healthcare resources should be exhausted in a way that ensures maximum health benefits for the maximum amount of people. Adopting this perspective, physicians should be able to withdraw life-support if best medical opinion suggests it will not serve the patient’s best interests and will drain healthcare resources. Moreover, artificially sustaining a patient’s biological functions for prolonged periods may cause adverse complications, such as bed sores, infections, bloating and organ damage. In the past physicians have even resigned from hospitals rather than provide further life-sustaining treatment which they view as harmful and an affront to human dignity. For this reason, medical associations in many jurisdictions support the concept of medical futility as a justification for physicians to withdraw harmful or ineffective treatment, including the withdrawal of life sustaining treatment (e.g. the recent policy statements from the Australian Medical Association and the American Medical Association).

The medical futility debate should also consider the rights of other individuals. All individuals have a right to health, which includes a right to access the healthcare system in the event of ill-health.  Therefore, if one patient exercises her right to health by demanding ongoing treatment, irrespective of the effectiveness of the treatment, this may limit the availability of healthcare resources available to other individuals, thereby infringing the right to health of those individuals. For example, in one Canadian medical futility dispute the Court noted that the consequence of a patient in a permanent vegetative state receiving indefinite life-sustaining treatment was that the hospital had to cancel eight cases of cardiac surgery due to the unavailability of beds in the intensive care ward.

There is no identifiable global legal consensus as to whether physicians can withdraw life-sustaining treatment against the wishes of the patient or the patient’s proxy. For example, last year the Supreme Court of Canada held that certain life-sustaining treatment cannot be withdrawn without the consent of the patient’s proxy, even if medical opinion suggests it is futile. By contrast, the United Kingdom’s Supreme Court held that a physician cannot be forced to provide treatment that the physician believes is contra-indicated and not in the patient’s best interests. However, both cases illustrated the stark reality that protecting a patient’s right to health qua the exercise of patient autonomy is not necessarily synonymous with best medical practice or the optimal use of medical resources. Moreover, medical futility cases raise the judicial dilemma of formulating a judgment which aims to protect the individual patient’s right to health without infringing the right to health of other ‘potential patients’. In effect, the medical futility debate illustrates not only the conflict between the right to health approach and the public health approach, but also the difficulty in balancing the rights of different individuals within healthcare systems.

Catherine Deans is a Legal Volunteer at Lawyers Collective and LLM Candidate at the University of Toronto.