Ten Days in Texas
Miller, Geoffrey, The Hastings Center Report
In 1999, Texas introduced into its newly formed Advanced Directives Act a mechanism that allows hospital ethics committees to resolve "futility situations"--cases, that is, in which physicians want to discontinue life-sustaining treatment for a patient judged to have an irreversible and terminal condition, but the patient (or, more likely, the patient's surrogate) wants treatment to continue. If the committee agrees that further treatment is inappropriate, then the family and the hospital must try to transfer care elsewhere to continue the treatment. If after ten days care has not been transferred, the hospital and the physician may unilaterally forego life-sustaining treatment. The family may petition a state court for more time to arrange a transfer, but the petitions provide limited redress, as they may not be granted, and they can only be for time to arrange a transfer, not for a judgment on the appropriateness of treatment. Also, the costs of transfer must be borne by the patient or family.
The law has been discussed favorably in the medical literature, and Texas physicians seem to be putting the mechanism into use. Moreover, its central goal is defensible: physicians have no absolute duty to provide treatments they reasonably believe will have no beneficial effect, and it is bad policy to force them to. But several cases widely reported in the press have led to criticism. In one particularly difficult case, doctors wished to discontinue treatment for a baby born with thanatophoric dysplasia, which is a uniformly fatal condition. The child's mother obtained a temporary injunction forcing the hospital to continue artificial ventilation so that she would have more time to arrange transfer, but after five months, a probate judge ruled that another health care provider would not be found, and life support was withdrawn. The baby quickly died.
The patients in these press reports appear genuinely to have had terminal, irreversible conditions, and withdrawing life-sustaining treatment from them seems to have been warranted. It is how treatment was withdrawn that has generated criticism. Certainly the ten-day deadline and the power given to the ethics committees to set it and enforce it have appeared unreasonable and coercive. Families seem to be pitted against powerful adversaries in the health care system. …