Ethical Implications of Administrative and Organizational Decisions
What is a managed care organization? Based on your reading, discuss how managed care organizations attempt to control costs. What are the benefits and disadvantages associated with these cost-controlling measures?
Assignments are to be a minimum of 2 full pages of text and 3 reputable references in proper APA format.
In the 1920s, President Calvin Coolidge stated that the business of America is business. This statement remains true and the United States is the bastion of free-market, democratic capitalism. Unique among its enterprises are health services organizations. These enterprises differ in purpose, type of service provided, orientation, and motives. Health services providers are often faith-based and have not-for-profit tax status. Health services organizations are unique because they are intimately involved with several professions and provide services that have significant emotional and psychological dimensions. Health services organizations are social enterprises with an economic dimension, rather than economic enterprises with a social dimension.
The elements of marketing—product, place, promotion, and pricing—have been applied to health services. Here, again, health services differ significantly. Unlike marketing in traditional business enterprises, which seeks to create demand, health services marketing seeks to meet a demand, perhaps unrealized, for its services. The distinction between business enterprise and health services has become less clear since the 1980s. Health services organizations have engaged in marketing for many years. Any type of community outreach is an implicit form of marketing. Historically, marketing occurs in several ways, including community health days, disease screening, well-baby clinics, and press releases from the provider. The milieu of the competitive marketplace, however, began to require that marketing become systematic, focused, and much more aggressive.
The competitive environment in the field of health services brought with it the perception that marketing was essential. Almost universally during the 1980s, health services organizations engaged in marketing, at least at the level of building name recognition. For the not-for-profit organization especially, the question of whether to market raised a host of ethical issues that began with the basic question of the propriety of marketing itself and extended to issues such as creating demand and distinguishing among various types of demand.
Physicians are reacting to the constraints of third-party payers and managed care in one of two ways. More than a third admit to having deceived insurance companies to help patients by exaggerating an illness's severity so patients can be hospitalized longer, or billing for incorrect diagnoses and reporting nonexistent symptoms. More than half of physicians approve of such deceitful practices.
NEED VERSUS DEMAND
Opinions vary when the role of marketing in health services is assessed: Is demand being created or is it being met? Important to answering this question is disagreement about the types of health services demand that are meritorious (in itself a value-laden concept). Few would disagree that it is important to create consumer demand for hypertension or colorectal cancer screening. The desirability of such efforts is tempered by calculating costs and benefits. Depending on the population and the disease, screening may be unacceptably expensive when measured by the number of true positives found and the morbidity and mortality prevented. Screening may be done even when it is not cost-effective, for reasons of political correctness or to further a feeling of well-being in a population.
Both price and nonprice competition may increase demand. Competition in the business sector is generally deemed to be desirable, but its desirability is less clear in health services. This is true because services are duplicated and because competing for physicians, staff, and patients is costly. Despite acceptance of competition, disagreement continues as to whether the demand created is appropriate. In addition, conditions requiring medical intervention may be treated with different therapies.
It is not clear how and by whom need and demand are to be judged. Despite the presence of the occasional hypochondriac or patient with Munchausen's syndrome, demand for medical services should be accepted as rational. When typical patients hear about new medical problems or treatment and diagnostic possibilities, they respond rationally. The “worried well” are not clinically ill but are concerned about their health and quality of life. Their decisions about elective procedures are personal cost–benefit analyses. It is when publicly funded programs use cost–benefit analyses to make macroallocation decisions that services may become unavailable. Oregon's example of prioritizing health services in its Medicaid program is instructive and rational when political decisions determine the services available.
How does the health services organization market to patients and potential patients in ways that are consistent with its ethical obligation to avoid creating unnecessary demand, but which simultaneously find and serve those who might need services? In its Principles and Practices for Marketing Communications in Hospitals and Health Systems, the Society for Healthcare Strategy & Market Development (SHSMD) of the American Hospital Association (AHA) includes a marketing communications checklist.The checklist has 12 areas for organizations to consider in marketing communications. Examples include “Does the product or service being promoted add genuine value for the patient?,” “Does the communication set realistic expectations?,” “If quality measures are highlighted, are words such as safe, high (est), effective, painless, best, and top quality used with caution and only when they can be verified and objectively substantiated?,” and “Is the language in the communication readily understandable by the audience for which it is intended?” Separate sections provide guidance on price information, endorsements and testimonials, use of physicians in marketing, social media, and blogger advertising, among others. In sum, the SHSMD advisory encourages marketing communications that are truthful, fair, accurate, complete, and sensitive to the healthcare needs of the public.
The emergence and widespread use of social media has added a dramatically new and potentially problematic dimension to health services marketing. At this writing, it is estimated that 250 hospitals are using YouTube, Facebook, Twitter, or blogs in outreach to their service areas. Social media offer great potential for service recovery, responding to and sharing positive feedback, and learning how other health services organizations use those same tools. An argument against using social media is that the organization cannot control what is being said about it on these various sites. But the comments are being made regardless and the organization will benefit from becoming part of the conversation. By knowing what is being said, the organization can improve its services and respond to concerns and complaints from users. Nonetheless, ethical issues abound in the interactions that can come from social media. The organization is obliged to ensure that responses to social media interactions meet basic requirements established by the AHA and are consistent with its own values.
If profit and return on investment are their primary reasons for being, organizations will have a very different view of responsible marketing and appropriate competition. This is the difference between giving the public whatever it wants and tempering desires and potential demand with judgments about value and usefulness. This view of the patient includes elements of paternalism, but it should be consistent with the organization's mission statement.
FUTURE OF COMPETITION
A theory in political science suggests that, over time, enemies begin to take on one another's attributes. This concern is troubling to the not-for-profit sector of the health services system, which views itself as holding and furthering values different from and superior to those in the for-profit sector. These individuals fear that competition for market share and the focus on financial considerations and economic survival will cause them to lose sight of their humanitarian and charitable motives.
In this regard, payment systems are especially significant. The advent of reimbursement using diagnosis-related groups for hospitalized Medicare beneficiaries was the opening round of what is proving to be a continuing reassessment of payment schemes. Competition and cost-cutting are furthering the shift from fee-for-service to various forms of fixed payment. Physician and organizational providers are becoming aligned in relationships that add a significant amount of complexity to traditional ethical problems and raise new ones as well. Physicians are beginning to push back against the various pressures on them, however. Many are limiting the number of Medicare and Medicaid patients in their practices, refusing to accept assignment from managed care and managed care organization (MCO) fee schedules, and establishing boutique practices to serve fee-for-service patients exclusively. Hospitals have less flexibility, but market conditions may allow them to negotiate better reimbursement schedules with MCOs.
Some writers suggest that the pressures of fixed-fee reimbursement will lead to an adversarial relationship between patients and health services organizations (and, perhaps, physicians) and that the interests of patients will be subordinated to the demands of efficiency and economic survival. Such results are possible under any payment system or ownership, and they will occur whenever caregivers and managers lose sight of their reason for being. Doing more with less is not at variance with efforts to operationalize the principles of respect for persons, beneficence, nonmaleficence, and justice, as well as several of the virtues. It remains for all who organize, plan, and deliver health services to keep these values in mind.
Competition and Human Resources Policy
Highly competitive suburban and metropolitan markets bring with them a unique set of ethical issues, especially those that arise in hiring. Professional codes of ethics do not cover such circumstances. The fired COO is privy to proprietary information that would likely give the other nursing facility an unfair competitive advantage. In theory, the fired COO could consult only on matters that do not require him to reveal or use proprietary information. Given the organizations' history, however, this is unlikely. The ethically superior answer is to not hire the former competing manager. Short of that, it may be possible to avoid using the competitor's proprietary information, something that could be determined only by knowing what work the newly hired consultant will perform.
Does a fired manager have any duty to a former employer? Managers have an ethical duty to keep proprietary information confidential after they sever relations with an employer. This duty of confidentiality continues until events have overtaken the confidential information. Were there no duty of confidentiality, former employees could hold organizations hostage. Managers would be among the first to agree that this is an undesirable situation from both managerial and professional perspectives.
Simply put, managed care is an organized effort to control the costs of health services through various means. The primary ethical issue that arises in managed care is the duality of interests that leads to conflicts of interest. Conflicts of interest are inherent in managed care because the goals, purposes, and objectives of management and personnel may be at variance with the interests of enrollees. The tension between the MCO and its enrollees and potential enrollees occurs as early as initial marketing when benefits packages and market segments are identified. The duality of interests that may become conflicts of interest are unavoidable, but their presence and consequent negative effects can be minimized if they are recognized by clinicians and managers. Enrollees are increasingly aware of this duality of interests.
Adverse Selection and Marketing Managed Care
The marketing strategy must consider whether to minimize significant clinical strengths that provider components may have. If the MCO is or is perceived to be a leader in treating complex or high-cost medical conditions, adverse selection is likely and the MCO will be inundated with persons requiring that treatment. If higher quality results in higher costs, the MCO falls into a vicious cycle. An MCO's reputation for high-quality results encourages more high-risk persons who need that expensive care to join. Straining against this adverse selection may cause quality to decline for other enrollees, or the MCO may be forced to restrict benefits or increase premiums. Thus, to survive (and thrive), MCO marketers may have to minimize references to superb care of specific types and focus instead on developing a reputation that the MCO delivers general medical services of high quality but without centers of excellence.
Physician Incentives and Disincentives
For the enrollee, the more subtle and potentially more serious constraints imposed by MCOs are directed at affiliated physicians. A duality of interests is present between MCO and enrollee and between physician and enrollee. The Hippocratic oath requires physicians to act in the patient's best interests. The AMA's Principles of Medical Ethics state, “A physician shall be dedicated to providing competent medical care, with compassion and respect for human dignity and rights,” and “A physician shall … be honest in all professional interactions". These guidelines suggest that patients' interests are primary as physicians connected to MCOs choose the level and content of care.
The physician is the fiduciary in the physician–patient relationship. It is perverse that a relationship necessitating such trust is influenced at all by financial incentives. Given that neutral financial incentives are likely to be impossible, it must be asked which type of payment best protects the interests of patients.
Financial incentives and disincentives are high risk in terms of conflicts of interest; among these, physician-at-risk or capitated payments are among the most problematic. Bonuses may be based on use of ancillary services, referrals, and hospitalizations, and may be used as incentives or disincentives. The effect of a potential bonus is insidious in that clinical decision making may be affected subconsciously or in ways not fully appreciated, even by the physicians themselves. Patients are almost always ignorant of such incentives or relationships. A further problem with bonuses is that staff begin to view them as a usual and expected part of their compensation, and failing to pay them is likely to result in lower morale or other, even more negative consequences.
Other Constraints in MCOs
In addition to physician-oriented constraints, other types of constraints are found in the organization and management of MCOs. By employing a complicated process (e.g., significant committee involvement and several levels of review), the MCO may be slow to approve use of new procedures, techniques, or equipment that raise costs. Such complexities are found more often in not-for-profit than in investor-owned MCOs. The more complex processes in not-for-profit MCOs may result from a greater degree of democracy and not from deliberate efforts to diminish access. The effect may be the same, however. For-profit MCOs tend to use a narrower management pyramid that gives the CEO more authority and potentially greater efficiency.
MCOs may forgo purchasing high-technology equipment, or they may contract with physicians and hospitals that do not have such equipment. Controls on access, such as using primary care physicians as gatekeepers or case managers, limiting out-of-plan services, and specifying dollar limits on referrals and consultations, help MCOs curtail costs. Those in competitive environments, however, must show that enrollees who need services get them (or at least create a perception that this happens), lest they lose market share. In addition, indirect and retrospective controls on access occur through use of utilization review, which is conducted on resource consumption patterns of various types of services by physicians, with special focus on those that are high cost. Controls risk malpractice suits and negative publicity if limiting access and utilization are perceived as resulting in poor outcomes.
Minimizing Conflicts of Interest and Other Conflicts
How do MCOs and their managers prevent or minimize conflicts of interest? An indispensable first step is a willingness to acknowledge that a duality of interests is inherent in the relationships between MCOs and enrollees, physicians and the MCO, and physicians and enrollees. Awareness permits avoidance or minimization. It is also obvious that third parties have legitimate interests in physician–patient encounters, but as third-party demands for information and control increase, “physicians must reassert their own moral authority and that of their patients.“ Without the active cooperation of health services managers, such a task is likely to be impossible.
A system of checks and balances is also needed. One solution includes an ombudsman or customer relations specialist to assist enrollees. In addition, there should be due process procedures for persons who wish to have a decision reviewed. Federally qualified HMOs must have an effective grievance procedure for enrollees. This requirement provides some protection. For the requirement to be useful, however, enrollees must know that a problem has occurred; lack of knowledge is especially problematic when subtle quality of care issues arise. Enrollees are protected if they are able to participate effectively and if management is enlightened and the education and personal characteristics of staff involved are adequate.
MCOs may use the managing physician or gatekeeper concept to limit services provided to enrollees. Such roles are certain to cause conflicts between physicians' ethical obligations to foster the best interests of their patients and the economic expectations and constraints imposed on them by the MCO. Internal audits of MCO utilization data or comparisons with external data from similar MCOs enable management to determine if utilization is in an acceptable range. Comparisons such as these alert managers to problems in the delivery of services that may result from a duality of interests. Awareness of the way in which conflicts of interest arise will help prevent them or minimize their effect. Such activities are essential if managers are to meet their ethical obligations to enrollees.
Mixing the employed medical staff of an MCO with voluntary, fee-for-service physicians raises several difficult questions.
Hospitals struggling with mountains of uncompensated care see offering better reimbursed services as a way to offset losses. “No margin, no mission” has become such an oft-repeated justification that it is almost cliché. More fiscally sound hospitals must ask themselves whether they are meeting a general duty under the principle of justice to offer unprofitable but necessary services that benefit the wider community.
As with all activities undertaken by the health services organization, philosophy and mission statements provide an ethical context for marketing. Managers should apply the virtues of honesty, candor, trustworthiness, and compassion in the organization's marketing. The principle of justice suggests that careful attention must be paid to the groups and medical conditions at which marketing is focused. Non–MCO health services organizations have the same ethical problems.
It behooves health services managers to read beyond the headlines and to be especially skeptical of claims that certain remedies are universal cures. Research findings must also be questioned, especially when studies from small samples or small universes are generalized to a wider population. Painting with a broad brush should alert everyone. As in life, when something sounds too good to be true, it probably is.
Institutional ethics committees (IECs) should assess prospectively and retrospectively the ethical issues raised in competition, marketing, and managed care. They should review the ethical implications of competition as it affects their patients, organization, and community. Marketing initiatives and their results should be understood from an ethical perspective, especially in terms of creating demand and the honesty and promise keeping involved. IECs can be valuable in monitoring care and outcomes to provide assurance that patients in managed care, as well as in other payment categories, receive the same, high-quality levels of care.
American Hospital Association. (2010). SHSMD advisory: Principles and practices for marketing and communication in hospitals and health systems. Retrieved http://www.shsmd.org/shsmd/resources/marketingcommunicationsadvisory.pdf.
American Medical Association. (2001). AMA code of medical ethics. Retrieved from http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-medical-ethics/principles-medical-ethics.shtml.
Brukner, H. (2001). Only human? The effect of financial productivity incentives on physicians' use of preventive care measures. American Journal of Medicine 110(3), p. 226–228.
Darr, K. (2011). Ethics in Health Services Management. (5th Edition). Baltimore, MD: Health Professions Press, Inc.
Holleman, W., Edwards, D., & Matson, C. (1994). Obligations of physicians to patients and third-party payers. Journal of Clinical Ethics 5(2), p. 120.
Pellegrino, E. (1994). Managed care and managed competition: Some ethical reflections. Calyx 4(4), p. 3.
Shaw, G. (2010). Marketing: Are social media's rewards worth the risks? Health Leaders Media. Retrieved March 4, 2011, from http://www.healthleadersmedia.com/content/235746/topic/WS_HLM2_MAG/Marketing-Are-Social-Medias-Rewards-Worth-the-Risks.html.
Ethical issues are integral to resource allocation decisions. Whether resource allocation affects populations or groups (macroallocation) or individuals (microallocation), it involves making choices. Decisions are based on explicit or implicit criteria. Some managers use subjective criteria such as social worth, usefulness to society, and need; others use more objective criteria such as selection through a lottery or queue or ability to pay once medical need has been determined. Values and philosophical statements about individuals and society underlie both, although these are usually implicit and may be only vaguely understood by decision makers.
Various methods and guidelines are used by decision makers in allocating resources. Often, decisions made by governments are based on economic or political motives. Like governments, health services organizations involve managers and clinicians in making macroallocation decisions. Microallocation in health services means making decisions about clinical treatment for individuals and involves nonclinician managers to a lesser extent. Important aspects of microallocation decision making are a physician's willingness to refer, a patient's geographic and economic access to services and technologies, and a patient's desire for treatment. Decisions at the micro level are often guided (in a sense, prejudged) by macroallocation decisions that the organization (or government) has made. Carefully husbanding resources is an important dimension of both macro- and microallocation decisions. Emphasis in the latter has led to efforts to minimize use of clinical resources when there is no reasonable hope of benefit.
Utilitarian's judge the morality of an act by assessing the results produced and determining which course of action results in the greatest good for the greatest number. Economists and managers use this approach in cost–benefit analyses. Applying criteria of utility is only a partial answer, however. This narrow approach ignores considerations of human need, fairness, and justice, all of which health services managers find important.
Specific theories have been developed to suggest how macroallocation does or should occur. The concept of a right to healthcare is prominent in several theories. An extreme view is hyper-egalitarianism, which asserts that all treatments must be available to all persons needing them. Its corollary is that treatments not available to all should be available to none. This theory is an extreme expression of respect for persons and mandates that society recognize an inherent right to equal health services. Providing different levels of treatment implies that some persons are, in effect, given less respect than others are. Equal respect means receiving equal health care services, consistent with need. If this criterion cannot be met, the treatment should be available to none.
At the other end of the continuum are those who assert that health services are a privilege, not a right guaranteed by society. This hyper-individualistic position holds that health services providers, such as physicians, have no moral obligation to render services. In providing services, they act out of free will and humanitarian instinct. Hyper-individualists argue that if there were a right to healthcare, providers would be obliged to render services. An obligation (duty) to render services diminishes the freedom and dignity of providers and fails to recognize their inherent value and worth as human beings, thus violating the respect they are owed.
Between these extremes is the position that society has a duty to assist in developing, encouraging, and even providing health services. Fried argued that routine basic services ought to be available to all, a position known as the “decent minimum". Beyond the decent minimum, this concept allows persons to purchase additional service as resources and interest permit. Contrast this approach with the Oregon Health Plan, which offers equal access to specified services for those covered by Medicaid. It prioritizes health services and pays for them to the extent that the legislature-approved budget allows. In effect, this rations services. Implicitly it uses hyper-egalitarianism, which, proponents argue, means sacrifice for some Medicaid recipients but equal, if limited, access for all.
Generally, exotic, high-technology services are limited because of location, cost, and referrals and are available on a different basis. Political decision making limits such services in publicly funded programs. Governing bodies and managers of health services organizations face similar questions in macroallocation decisions. Typically, beneficence, fidelity (promise keeping), and justice are applied and supplemented by various of the virtues.
From Micro to Macro Videos (three parts).
Health Management Course Micro to Macro Part I: Shep Glazer Revisited
Health Management Course Micro to Macro Part II: Problems in the Health Care System
Health Management Course Micro to Macro Part III: Considerations in Resource Reallocation
Transcripts can be found on video host site.
A contemporary example of microallocation decisions involves non-American transplant recipients who obtain human organs from American donors. Often these patients come from countries in which technological impediments or religious and social customs prevent organ harvesting. They pay out-of-pocket rather than from private or public sources; the additional revenue makes them favored by transplant centers. In addition, they are generally willing to accept organs that may be “less fresh” or are not optimal tissue matches. Transplanting organs harvested in the United States into non-Americans raises legitimate concerns about priorities in a system in which American patients wait for organs while non-Americans receive them.
Theories of allocating exotic lifesaving treatment to individual patients have been developed by James Childress and Nicholas Rescher. They address the problem of how decisions about who gets what should be made. Childress rejected the use of subjective criteria, such as worth to society, because such comparisons demean the potential recipient and run counter to a belief in the inherent dignity of each human being. General awareness of how choices are made may or may not enhance the public's view that health services organizations and the system act justly. Public scrutiny, however, will focus greater attention on decision criteria, the decision process, and the fairness of their application. Kantian principles of respect for persons and of not using persons as ends are reflected in Childress's approach, which stresses autonomy. Rescher's approach includes a mix of Kantian and utilitarian views and, most important, and emphasizes justice. Some health services organizations make resource allocation decisions using formal ethical criteria—the preferred method. As with all macroallocation decisions, these criteria must be developed within the context of the organizational philosophy and the vision and mission statements.
Please watch the video to learn more about this subject.
Hardest Decisions-Resource Allocation-Ethical Justification part 1.
Dr. Kenneth Iserson. Published on April 2013. During and after disasters, decision makers must prioritize the needs of different patients and communities. Such prioritization, made when vital medical resources are scarce, is the most heart-wrenching and difficult decisions anyone is likely to face. Thus, it is desirable in advance of a catastrophe, to identify leaders at all levels that can make these difficult resource-allocation decisions, and to educate them to navigate the technical, moral, and emotional terrain. So far, that training has been unavailable. Using an ARRO grant, three educational videos were produced to address this desperately needed education niche.
Modern technology allows clinicians to support life far into the dying process. Applying technology when there is a probability or even hope of benefit raises few ethical issues. Treatment continued beyond hope of benefit suggests futility. Applying the futility concept has been described as a unilateral do-not-resuscitate (DNR) order, a decision made by physicians using a physiologic definition.9 At its root, futility theory focuses on the absence of benefit from continued treatment. Quality of life is not expressly considered, even though it cannot be ignored as a psychological factor that the physician may implicitly consider. Futility guidelines address the issue of demands for treatment that clinicians judge to offer no hope of benefit. Rare, almost miraculous recoveries haunt decision makers and cloud futility theory and its application. Such patients improve months or even years after reasonable hope of benefit from life-sustaining treatment should have ended. Sometimes, the improvement is dramatic.10,11
Futile treatment invariably raises questions of resource consumption and economics. A skeptic might ask whether economics are really the driving force. Similar questions have been raised about advance medical directives (AMDs), which are touted as giving patients control but almost always only limit services. Some futile treatment policies specifically address resource consumption and the moral obligation of the health services organization to use its resources judiciously. Ordinary care is all medicines, treatments, and operations that offer reasonable hope of benefit and that can be obtained without excessive expense, pain, or other inconvenience. Extraordinary care is all medicines, treatments, and operations that cannot be obtained or used without excessive expense, pain, or inconvenience, or that, if used, would not offer a reasonable hope of benefit. This definition makes it ethical to withhold any medicine, treatment, or operation that offers no reasonable hope of benefit or that cannot be obtained or used without excessive expense, pain, or inconvenience. A common mistake is to define ordinary as usual or customary treatment; this results in statements such as “Ill persons must always be given food and water because this is ordinary (i.e., usual and customary) care.”
Futility theory has quantitative and qualitative aspects. The quantitative aspect is concerned with the probability of success if a treatment were attempted or continued. Probability of success means that the treatment can be successfully performed and achieve its intended purpose. So, for example, tube feeding will sustain the life of a patient in a persistent vegetative state (PVS), but it will not restore cognition. Qualitative assumes a successful treatment that achieves its intended purpose, but it asks whether the result is such that the treatment ought to be undertaken. The quantitative determination is made by clinical experts. The qualitative determination (judgment) can be made only by the patient or, as necessary, the patient's surrogate. The concept of futility limits the qualitative decision.
Three basic variations of circumstances raise questions of futile treatment. The first is that patients demand services that offer no reasonable hope of benefit. Lacking data, this situation may be an urban myth or a largely incorrect perception. AMDs generally limit medical intervention, although they may demand services that clinicians later deem futile.
A second type of futile treatment occurs when organizations insist on providing treatment that surrogates have determined offers no reasonable hope of benefit and should end. The third type occurs when treatment is continued because surrogate decision makers demand it.
The U.S. Supreme Court may consider a similar case in the future and reverse the decision in Baby K. Meanwhile, Congress can amend the EMTALA and other federal law to allow treatment to be withheld or withdrawn when caregivers judge it to be futile or inhumane. Such exceptions are found in the Child Abuse Amendments of 1984 (PL 98-457), which were enacted to prevent denial of treatment to infants with disabilities. The problem for Congress is that the political context will make it virtually impossible to deny parents the right to demand treatment even when it is deemed futile or inhumane by caregivers.
The challenge for health services organizations in cases such as Baby K will be to meld the concerns of family, caregivers, and organization in a way that eliminates or minimizes futile and inhumane treatment while meeting federal and state laws, organizational values, and the personal ethics of those involved.
Futile Treatment Guidelines
Increasingly, health services organizations, especially acute care hospitals, have futile treatment guidelines or policies. Developing and adopting them have been stimulated by the perception that patients and their surrogates demand treatment that clinicians have determined has little, if any, likelihood of benefiting the patient. Consent and autonomy drive initial phases of decision making for patients able to participate. Patients should be given the information to make an informed choice about options for treatment (or nontreatment). Especially to be tempered are unattainable goals of treatment or unrealistic expectations of medical science. Patients bear the brunt of continued treatment; this makes them more willing than surrogate decision makers to limit what is done. When patients' decisions (or demands) will not result in efficacious medical treatment or will only prolong suffering and the dying process, clinicians have a moral obligation to withhold or withdraw treatment. Typically, guidelines regarding withholding or withdrawing life-sustaining treatment require agreement of both attending and consulting physicians that the treatment is futile.
The goals of standard medical treatment are to cure, restore, improve or maintain some level of a person's ability to think, feel, and interact with others and the environment. Futile treatment guidelines or policies should emphasize that physicians have no moral (or legal) obligation to provide treatment that they judge to be inappropriate. Physicians' professional integrity is compromised and they fail to meet their duty to their patients if they provide treatment that is of no benefit or offers no hope of benefit. Physicians fail, too, in their ethical obligation to make effective use of resources if they are used by patients for whom they offer neither benefit nor hope of benefit.
In all but five states, providers may refuse to deliver medical treatment the patient has requested. A majority of states do not require providers to act contrary to generally accepted standards of care. Eleven states permit physicians to decline to comply with healthcare decisions for reasons of conscience or personal belief. Fourteen permit providers to withhold or withdraw medical treatment based on moral convictions or religious beliefs.
Despite such laws, it is doubtful that either physicians or hospitals will refuse to provide treatment that they deem futile, except after a considerable period of life-sustaining treatment and when the prognosis is unequivocal. The potential is too great for accusations from the public and media that passive, involuntary euthanasia is occurring or that patients are being treated inhumanely. Reaction to highly publicized futile treatment cases show significant levels of ignorance among the public. In this milieu, enforcing futile treatment guidelines could cause a public relations fiasco. Health services organizations should have guidelines or a policy on futile treatment, nonetheless.
The presence of guidelines will encourage physicians to take steps to withhold or withdraw futile treatment, if doing so is appropriate. Thus encouraged, their frank discussions with patients or surrogates may yield results consistent with futile treatment guidelines. By informing patients or surrogates of their moral objection to continuing treatment because it is medically inappropriate and harmful, physicians may gain assent without invoking the organization's guidelines.
Futility theory goes well beyond the contemporary concept of autonomy. Patient autonomy is a negative right, the right to be free from unwanted treatment—to be able to say no. Futility theory limits what is asserted as a positive right, the right to demand treatment—even when there is no medical benefit to receiving it. From an ethical standpoint, it is generally agreed that no positive rights exist.
Futility theory seeks to deal with the issues of extraordinary, disproportionate, and burdensome care. The decision maker is the physician. The preceding sample guidelines stated that there is a need to educate and inform the patient. The patient and/or family need not concur with the decision, however. Futility theory is very different from shared decision making in what is considered the ideal, nonpaternalistic physician–patient relationship. In fact, the problem that futility theory purports to address may be only partly attributable to patient demands. Research documents many shortcomings in the care of patients who are seriously ill and dying, especially the effectiveness of patient–physician communication.
The Study to Understand Prognoses and Preferences for Outcomes and Risks of Treatments (SUPPORT). In a corollary to the first phase of SUPPORT, investigators examined the impact of prognosis-based futility guidelines on survival and hospital length of stay on a cohort of adults with serious illness. They calculated the hospital days that would not be used if, on the third day, life-sustaining treatment had been stopped or not initiated for patients with an estimated 2-month survival chance of 1% or less. They found that only 10.8% of hospital days would have been saved and concluded that only modest savings would have resulted. An apparent contradiction exists between science and the quality of life suggested in the previously noted definition of futile treatment. This contradiction raises the question of whether a paternalistic quality of life decision is masquerading as scientific, objective decision making. If so, futile treatment guidelines are a large step back for patient autonomy—a return to the physician paternalism of the Hippocratic tradition.
Another possible result is that the right to die may become a duty to die. Do futile treatment policies put health services organizations and providers on a slippery slope? Will the policies become broader and increasingly focused on the quality of life that clinicians determine would be acceptable to the patient? These questions can be answered only in retrospect, in itself not a cheery prospect.
Absent data showing that patients and surrogates commonly demand treatment that caregivers consider futile, it is possible that futility guidelines are solving a nonproblem. In addition, the SUPPORT investigators' findings as to economic impact should be explored further.
If the problem exists, however, the first alternative solution is the status quo—patients and/or surrogates must agree to discontinue treatment after physicians determine it is futile. An adjunct to this alternative is to enhance the communication skills of physicians and other caregivers. It may be that patients and surrogates inadequately understand the prognosis. Health professionals such as nurses and social services staff may be used more effectively, for example. The task should not be left only to physicians and ethics committees since both are likely to be much more daunting to patients and surrogates.
COMPLEMENTS TO FUTILE TREATMENT GUIDELINES
Allow Natural Death
Allow natural death (AND) is ordered when a terminally ill patient (or surrogate) decides to forgo interventions such as CPR to sustain life. Essentially, AND is a DNR order. The meaning of DNR and its effects are difficult to communicate to patients and families. Further, DNR may suggest that the patient will receive insufficient care because there is no CPR or similar efforts. These two aspects of DNR argue against continuing to use it when AND has the same results. Patients who are AND receive comfort care, including hydration, nutrition, and pain control. Providing water and food artificially is a separate decision, but denying it is within the parameters of AND. Avoided are significant treatments that intervene to slow the dying process for someone who is terminally ill.
The World Health Organization defines palliative care as an approach that improves the quality of life of patients and their families facing the problem associated with life-threatening illness, through the prevention and relief of suffering by means of early identification and impeccable assessment and treatment of pain and other problems, physical, psychosocial and spiritual.
In addition to pain relief, palliative care regards dying as a normal part of life; it neither hastens nor postpones death. Important in its application is a team-based support system for patients and families. Palliative care intends to enhance the quality of life and positively influence the course of illness. It may be used in conjunction with therapies that are intended to prolong life, such as chemotherapy. It may include other interventions to understand and manage clinical complications.A corollary to palliative care is palliative sedation to unconsciousness (PSU). PSU is limited to terminally patients.
Questions of resource allocation are common to all health services organizations. Both macro- and microallocation issues are becoming more important as economic constraints increase, and it is crucial that the organizational philosophy and the vision and mission statements guide these decisions. This guidance requires a level of precision and specificity lacking in many organizations. This deficit must be overcome.
Hospitals with significant uncompensated care may offer services reimbursed at a higher rate to offset losses. Fiscally sound health services organizations must ask whether they are meeting their obligations under the principle of justice to offer unprofitable but needed services that benefit the wider community. They also must ask if they are meeting a duty of general beneficence to use surpluses to assist persons who might require services. Futile treatment guidelines are becoming common. Before developing them, the extent of the problem should be determined.
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