Texas Advance Directives Act: a Threat to Catholic Identity?

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The Texas Advance Directives Act: A Threat to Catholic Identity?

objection, unless another facility is willing Elliott Louis Bedford to accept the transfer of the patient. Graduate Assistant, Ascension Health Graduate Student, Health Care Ethics, This legal protection granted to physicians Saint Louis University requesting to unilaterally withhold LST St. Louis, Mo. despite a family’s objection raises the [email protected] question whether such a law poses a threat to the identity of Catholic hospitals. Most Introduction immediately, it raises concerns with regard to observance of the Ethical and Religious Medical “futility” cases have generated Directives for Catholic Health Care Services controversy among medical professionals, (ERDs). Applicable directives include bioethicists, legal professionals and the Directive 57 since a physician can decide public for decades due to widespread to withhold treatment from a patient if it disagreement about the point at which a is deemed medically inappropriate, medical intervention is no longer Directive 58 because it allows physicians considered beneficial to a critically ill to withhold artificial nutrition and patient. To date, no uniform method has hydration, and Directive 60 which been established to resolve these cases. prohibits euthanasia. Moreover, even if This has prompted the enactment of laws the TADA does not threaten Catholic including the Texas Advance Directives identity with regard to these directives, it Act of 1999 (TADA). The TADA raises concerns whether it threatens a establishes a process for discerning the Catholic institution’s commitment to appropriateness of a physician’s request to provide high quality end-of-life care to withhold life-sustaining treatment (LST), suffering and vulnerable patients and despite the patient’s pre-existing advanced families. To address these concerns it is directive. This process includes a necessary to review data collected from consultation between the patient’s family health care institutions that have made use and an ethical/medical review committee of the process. An analysis of recent review to analyze the patient’s medical record and studies lends insight into the effects of the determine whether the LST in question is TADA on cases of medically inappropriate medically inappropriate. If the treatment treatments, and will help evaluate the is deemed inappropriate, the physician is potential impact of these laws on Catholic afforded legal safe-harbor to unilaterally hospitals. withhold LST after a minimum ten-day waiting period, despite the family’s

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Does the TADA Violate the ERDs?

Contentious medical “futility” cases However, this argument is flawed as it including that of Emilio Lee Gonzales, a misinterprets the directive. Directive 57 16-month-old pediatric patient suffering morally justifies a patient’s decision to from a fatal neurological condition known refuse a given treatment based on the as Leigh’s disease, have raised questions principle that they themselves have judged regarding the law’s compliance with the the benefits associated with the treatment church’s moral tradition, articulated in to be insufficient or the burdens to be part by the ERDs, in the context of end- excessive. A true violation of Directive 57 of-life decision making.1 The tradition would occur if a physician imposed a teaches that individuals have a duty to treatment on a patient, who has judged it preserve their life, but not by any means extraordinary, because the physician has necessary. In 1957, Pope Pius XII deemed it ordinary. As mentioned, attempted to clarify that individuals have Directive 57 morally justifies a patient’s an obligation to preserve their life by ability to refuse a treatment in instances in ordinary means, “that is to say, means that which it provides insufficient benefit or do not involve a grave burden for oneself excessive burdens or harm. Therefore, in or another.”2 This obligation does not its application, this directive assumes that extend to the use of extraordinary or a treatment is offered to the patient. It disproportionate means. Directive 57 does not authorize a patient to request a represents this teaching of Pius XII, treatment, either ordinary or stating: extraordinary.

A person may forgo extraordinary or Others may also argue that under the disproportionate means of preserving provisions of Directives 56 and 57, life. Disproportionate means are those physicians have an obligation to honor a that in the patient’s judgment do not patient’s request for treatments, especially offer a reasonable hope of benefit or those that the patient considers ordinary.4 entail an excessive burden, or impose However, neither directive speaks to the excessive expense on the family or the physician’s duty to offer a treatment. community.3 Since the Catholic tradition supports the physician’s ability to conscientiously Given the significance that Directive 57 object in certain circumstances, the places on the patient’s ability to determine tradition does generally recognize that the whether a treatment is ordinary or duty to offer treatment is not absolute.5 extraordinary, it may appear that the Yet, under the TADA the physician’s TADA violates this directive because it ability to refuse is clearly limited. Recent allows physicians to withhold LST from a studies in Critical Care Medicine and the patient based on an external extraordinary Journal of Perinatology report that the means judgment.

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review committee disagreed with the physiologic ends (e.g. when they are not physician in 30 percent and one-third of being assimilated) or when the artificial cases, respectively.6 In the case that the means (e.g. surgery, tube, maintenance) committee disagrees with the physician’s used to administer the nutrition and judgment, the law specifies that the hydration have become harmful to the physician must continue to provide patient. treatment. Therefore, the comprehensive review process can be understood, in part, Given the controversy concerning the as a means of determining the duty of the provision of MANH in Catholic health physician to provide LST or, rather, the care, its status under the TADA is a threshold at which a physician can particularly sensitive issue.9 Some critics legitimately refuse. In essence, this law may hold that this law enables institutions enables physicians to practice to withhold MANH from a patient even if conscientiously in cases in which it is the only LST being provided.10 This treatment is medically inappropriate and would entail: (1) the physician judging the even harmful. Therefore, it seems the treatment to be medically inappropriate; TADA does not violate Directive 57 (2) the committee agreeing with the because the directive speaks only to the physician’s judgment; (3) no other patient’s ability to refuse treatment, not medical institution is willing to accept request it. Thus, the TADA allows transfer; and (4) the family hasn’t filed or physicians the limited ability to refuse to received a court-ordered injunction. provide treatment, not because they can Further, actual practices involved with judge means to be extraordinary, but implementing the TADA guard against because they have, in principle, a limited this scenario. The patients in cases that duty to offer or provide treatments to appeal to the TADA process are typically patients. admitted in the intensive care unit of the hospital, have multiple co-morbidities, While Directive 57 does not speak to the and are considered to be imminently physician’s duty to provide treatment, the dying.11 In one pediatrics study, all but same cannot be said for Directive 58.7 one patient was ventilator dependent, all Though there has been considerable had do not resuscitate orders, were debate over the proper interpretation of receiving MANH and suffered from a the language used in the directive, it seems range of devastating that, at a minimum, Directive 58 conditions.12 Interestingly, the one patient establishes that medically assisted who was not ventilator dependent but nutrition and hydration (MANH) need received MANH, a patient who suffered not be provided in all circumstances.8 This from severe hypoxic ischemic is especially true when it is objectively encephalopathy, aspiration pneumonia, discernible that nutrition and and seizure disorder, was transferred to hydration are not achieving their another facility on day eight of ten for a

FEATURE ARTICLE tracheotomy and was discharged home.13 Some individuals fear that the TADA will However, given the uniformly severe legally protect physicians in cases of condition of the patients reported in these passive euthanasia, even though the law studies, in addition to the multiple forbids it.16 Euthanasia, an act or omission decision points within the process, data intended to alleviate a patient’s suffering suggest that the process is not invoked or through death, is always forbidden in carried to conclusion in order to simply Catholic hospitals under Directive 60.17 remove MANH. Nonetheless, there is a significant moral difference between removal of Rather, it seems physicians are willing to inappropriate and harmful medical provide MANH to patients even if the treatments and euthanasia. First, there purpose for doing so is primarily for the exists a difference of intention. One seeks benefit of the family. For instance, one to relieve suffering through the study notes that, “Although nutrition and discontinuation of inappropriate and hydration are not obligatory when death is harmful treatment and the other seeks to imminent, they may be made available in relieve suffering through death. Second, amounts carefully adapted to the patient’s there is a difference in causation. One hemodynamic and respiratory status to allows the progression of the underlying avoid potentially distressing respiratory or terminal condition and the other hastens gastrointestinal symptoms. Many families death of the patient through a given act or find the continued provision of discrete omission. As previously mentioned, under amounts of nutrition comforting.”14 the TADA, case review studies have demonstrated that physicians use the At first glance, the use of the term TADA process in cases in which the LST obligatory may rouse the attention of appears to be both inappropriate and moral theologians, especially in light of causing harm to patients that are the “in principle…obligation” language of imminently dying. Therefore, in these Directive 58. However, as the researchers cases, removal of LST can rightly be explain, the concern regarding the understood as allowing the underlying provision of MANH in these terminal condition to run its course and circumstances is the harm that it causes not as an act of euthanasia by omission. patients, which is a consideration that the Furthermore, this withholding of directive explains is significant. However, treatments is not done in order to relieve the concern for gauging the the patient’s suffering by causing their appropriateness of the use of MANH in death but rather to relieve the patient of these cases highlights the need for at least the suffering the LST is causing while some members of the review committees foreseeing that the underlying condition to possess adequate expertise in applying will bring about their death. Moreover, the ERDs to these difficult situations.15 physicians are only allowed to withhold LST which, “does not include the

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administration of pain management practices in Boston, argues against the medication or the performance of a TADA because of “the possibility that the medical procedure considered to be law is being used as a way to bypass the necessary to provide comfort care.”18 hard work of engaging families in the Hence the law protects against concerns difficult conversations often necessary to that “if the patient in question cannot find reach agreement in the face of conflict.”21 alternative care, then all treatment is Catholic health care ethicists, Ron Hamel denied and the patient dies a tragic and and Michael Panicola, have reported a painful death.”19 Hence, the TADA similar caution of so-called “futility” protects against such misgivings and policies because of the danger that explicitly specifies that unilaterally physicians will view recourse to the withholding LST does not apply to pain “futility” policy as the predominant or comfort measures. method for handling difficult cases instead of attempting to increase the quality of In summation, the TADA does not seem communication between families and to represent a threat to the identity of a staff.22 Drs. Hamel and Panicola fear the Catholic health care institution seeking to law negatively influences physician and adhere faithfully to the ERDs. Specifically, patient-family communication, and, in it does not threaten to violate Directives cases of conflict, enables the physician to 57, 58 or 60. Since the TADA does not merely approach the review committee represent a violation against Directive 57 instead of meaningfully engaging with the and case review studies indicate that actual family. Hence, they propose improving practices guard against violations of communication practices in order to Directives 58 and 60, one must question proactively avoid conflict cases instead of whether the TADA negatively affects the defensively creating “futility” policies and identity of a Catholic hospital as an health laws. In contrast, Truog supports care institution committed to providing developing a robust internal hospital compassionate, high quality end-of-life “futility” policy such as the model he care. developed at the Children’s Hospital Boston. How Does the TADA Influence the Provision of High Quality Medical Truog is therefore wary of the statistics Care? reported by Robert Fine, MD and lawyer Thomas Mayo of Dallas, who state that in Although I have specifically addressed the Baylor University Medical Center, Catholic objections to the law, there are during the two years after the enactment also general concerns applicable to all of the TADA, explicit futility consults health care institutions, secular and increased 67 percent while general religious.20 One of the law’s most vocal consults increased 39 percent.23 Truog’s critics, Robert Truog, a physician who concern stems from the propensity of the

FEATURE ARTICLE committee to agree with the physician, is the ethics consultation service’s raison which another study indicates happens in d’etre. Referring to the very study that 70 percent of cases.24 He claims the concerned Truog, Fine emphasizes that committee concurrence rate is “essentially “basic clinical ethics consultation alone, the inverse of our experience with a without entering the formal dispute hospital policy” and so raises questions of resolution process…brought closure to 98 committee bias in favor of physicians.25 percent of cases in which an ethics Truog views these statistics as consultation was requested, including 86 confirmation of his suspicions that percent of explicit futility cases.”29 physicians are neglecting communication Moreover, one recent study indicates that with the family and instead using the ethics consultations lead to a reduction in review committee to resolve conflict. hospital days, days spent in the ICU and Though Truog is skeptical of the rise in days on a ventilator for patients who ethics consultation, Fine, one of the law’s received a consultation but did not survive most ardent supporters, views it positively. to discharge, and that, “more than 80 Fine argues in support of the law because percent of both health care providers and it gives physicians something that Truog’s patients/surrogates agreed or strongly proposal does not: legal support.26 Fine agreed that ethics consultations were further claims, “before that [full dispute helpful in addressing treatment resolution] process happens, the very conflicts.”30 Thus, it seems that an presence of the law encourages increase in ethics consultations improves conversation between surrogates and communication and that these efforts are health-care professionals, with referral to successful at producing better outcomes. ethics committees as needed.”27 Thus, These data are encouraging since according to Fine, the ineffective communication both among rise in ethics consultations actually medical staff and between medical staff indicates an increased propensity for and families are two of the leading causes physicians to discuss end-of-life concerns for initiating medically inappropriate with families and other professionals.28 treatment.31

Furthermore, it is peculiar that Truog Despite this positive development, Truog would consider a rise in ethics remains concerned that the increasing consultations as cause for concern or that number of ethical consultations changes it indicates a decline in effective the dynamics of the communication communication between the medical team between family and physician. Effectively, and the family, even if there is a tendency he holds that although there is an increase for the review committee to agree with the in consultations, it does not follow that referring physician’s decision. Effective the communication is improved. communication in difficult conversations However, the number of cases examined regarding challenging treatment decisions under the TADA process, as evidenced in

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several studies, is miniscule compared to “It clearly places limits on families and the amount of ethical consultations for surrogates who request therapies that cases of inappropriate medical the profession considers futile. At the treatments.32 This indicates that most same time, it forces the profession to cases of futility conflict are resolved think carefully about the concept, for if through other means.33 Furthermore, Fine another physician and facility are and Mayo report the greatest impact of willing to provide the “futile” the law is its influence on communication treatment, then the law does not allow between staff and family, explaining, “We withdrawal of that treatment on believe that the greatest significance of the grounds of futility. The law also law is how it changes the nature of provides temporal boundaries (12 days) conversations between providers and for resolving disagreements over futile patients’ families about futile-treatment treatments.”36 situations by providing conceptual and temporal boundaries.”34 Other studies Given this temporal boundary, most make similar claims that communication families do not insist on further between staff and families benefited treatment.37 He explains: because of the process, claiming, “We conclude that the MARC [Medical “We have had many conversations with Appropriateness Review Committee] families who have said in essence, “If promoted communication and provided you are asking us to agree with the additional protections to patients, recommendation to remove life support families, physicians, and staff.”35 Truog’s from our loved one, we cannot. main concern, that the quality of care and However, we do not wish to fight the communication with the family is being recommendation in court, and the law diminished, does not seem to find says it is OK to stop life support, then support. Quite the opposite, experience that is what should happen.”38 reveals that the process—or simply its mere presence—actually increases and Fine notes that the conceptual and improves communication between all temporal limitations of the process parties. actually provide relief to families, and the time needed to achieve family agreement As outlined in the TADA, the process after ethics intervention changed from introduces certain boundaries, which as “days to weeks,” before the TADA, to Fine reports, has led to this improvement “hours to days” after the TADA.39 in communication. As Fine mentions, the Similarly, the authors of another study boundaries that the process establishes are described how the process provided important for both families and significant benefits for the family, noting physicians. He explains: that the family felt relieved that all options had been exhausted and the burden of the

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decision to remove LST from their loved Still, others concerned with the law’s one had been eased.40 influence on the quality of end-of-life care might argue that the TADA allows Still, some family members may question physicians and institutions to abandon or the physician’s dismal prognosis and feel “dump” vulnerable patients. However, the these boundaries indicate a physician is law requires the institution to assist the prematurely “giving up.” However, family in exhaustively exploring an physicians’ projections of imminent appropriate transfer for the patient during patient demise seem to be accurate in cases the mandated ten-day waiting period. The in which the review committee is in decision to discontinue LST in patients agreement with the physician, and has for whom an appropriate transfer is not been reflected in two recent studies. In achieved therefore extends beyond the one study, 29 percent of patients died institution. Medically inappropriate prior to the end of the ten-day treatment is “community-based…in that waiting period, even though they if another institution is willing to provide continued to receive LST.41 In another a disputed treatment that the first study, two of six patients died before the institution believes is medically waiting period ended.42 However, even inappropriate or futile, the disputed given their general accuracy in predicting treatment may not be stopped.”45 This the ineffectiveness of a treatment or the means that LST can be removed only imminence of the patient’s demise, when no other physician or institution research indicates that surrogates often would be willing to provide it. Transfer, doubt the physician’s prognosis.43 A nevertheless, is a real possibility. review of these cases indicates that mere According to one such study, transfer judgments about the ineffectiveness of outcomes were almost equal to the treatments or the imminence of the number of outcomes in which LST was patient’s demise were not the sole reason withdrawn after the designated waiting physicians initially invoked the process. period.46 Moreover, transfer can be One study noted, “in each of the six cases considered a good outcome as “the reviewed here, the MARC process transfer process can actually result in an demonstrated concern by caregivers both amicable solution between the family and for futility of treatment and that the the caregivers.”47 Finally, the authors of continuation of treatment would be another study noted how all parties inhumane, two of the criteria under involved with the decision, especially the CATA [the Child Abuse and Treatment family, felt relief because, through their Act of 1984].”44 Reports such as these thorough examination of all the options, indicate that physicians do not invoke the they have done everything within their process based solely on belief in the respective power to properly care for their accuracy of prognosis but rather approach loved one.48 this process due to ethical concerns regarding the best interests of the patient.

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Conclusion MANH. In fact, the law encourages developing just such a policy.49 While In conclusion, it seems that, with certain other means of resolving conflicts over qualifications, Catholic hospitals should medically inappropriate treatment are support laws that use the TADA as a highly successful, used comparatively model because, in the rare case that the often, and should be explored before process is actually implemented, it allows turning to legal means for resolution, laws physicians to practice according to like the TADA are, and should be, a last professional conscience and seeks the good option that is nonetheless worthy of of the patient by preventing the harmful qualified support by Catholic hospitals. prolongation of the dying process while avoiding euthanasia. Furthermore, evidence from those who have reviewed Acknowledgement experiences of cases that invoked the process indicates that, in general, the law I would like to thank Theresa Bedford, tends to improve the quality of the end- RN, and James DuBois, Ph.D., Dsc, for of-life care in the most difficult their extensive critiques of earlier drafts of circumstances because it increases this article. communication between staff and families. Specifically, it often provides NOTES 1 relief to families struggling with the Elizabeth Cohen, "Fight over Baby's Life Support Divides Ethicists," http://articles.cnn.com/2007- weight of the decision to remove LST 04-25/health/baby.emilio_1_ventilator-life- from their loved one. support-medical-experts?_s=PM:HEALTH. 2 Pope Pius XII, "The Prolongation of Life: The general concern regarding the law’s Address to and International Congress of compatibility with the ERDs highlights Anesthesiologists," in Catholic Health Care Ethics: A Manual for Practitioners, ed. Edward James another important point: the TADA Furton, Peter J. Cataldo, and Albert S. establishes minimums. Catholic hospitals Moraczewski (Philadelphia, PA: National Catholic can make internal policies regarding the Bioethics Center, 1957), 300. implementation of the TADA that go 3 United States Conference of Catholic Bishops, beyond the minimums that the law Ethical and Religious Directives for Catholic Health Care Services, 5th Edition," (Washington, establishes. For instance, a hospital might D.C.2009), n.57. adopt a policy extending the waiting 4 Directive 56 discusses “ordinary means”. It reads, period or requiring a second opinion “A person has a moral obligation to use ordinary or before the physician can submit the case proportionate means of preserving his or her life. to the review committee. Additionally, it Proportionate means are those that in the judgment of the patient offer a reasonable hope of could even revise the policy for the benefit and do not entail an excessive burden or implementation of the TADA process to impose excessive expense on the family or the specify that it cannot be applied to a case community.” Ibid., n.56. in which the patient is merely receiving

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5 See, Daniel P. Sulmasy, "What Is Conscience and Faith in the 2007 statement, “Responses to Why Is Respect for It So Important?," Theoretical Certain Questions of the United State Conference Medicine & Bioethics 29, no. 3 (2008). of Catholic Bishops Concerning Artificial 6 Martin L. Smith et al., "Texas Hospitals' Nutrition and Hydration” See, Congregation for Experience with the Texas Advance Directives the Doctrine of the Faith, "Responses to Certain Act," Critical Care Medicine. 35, no. 5 (2007): Questions of the United State Conference of 1274. E. B. Eason et al., "Withdrawal of Life Catholic Bishops Concerning Artificial Nutrition Sustaining Treatment in Children in the First Year and Hydration," The National Catholic Bioethics of Life," Journal of Perinatology 28, no. 9 (2008): Quarterly 8, no. 1 (2007): n.2. 643. 11 R. Okhuysen-Cawley, M. L. McPherson, and L. 7 Directive 58 reads, “In principle, there S. Jefferson, "Institutional Policies on is an obligation to provide patients with Determination of Medically Inappropriate food and water, including medically Interventions: Use in Five Pediatric Patients," assisted nutrition and hydration for those Pediatric Critical Care Medicine 8, no. 3 (2007): who cannot take food orally. This 227-8. obligation extends to patients in chronic 12 Eason et al., "Withdrawal," 643. and presumably irreversible conditions 13 Ibid., 643. (e.g., the “persistent vegetative state”) 14 Okhuysen-Cawley, McPherson, and Jefferson, who can reasonably be expected to live "Institutional Policies," 227. indefinitely if given such care. Medically 15 This hypothetical scenario raises another assisted nutrition and hydration become interesting question: would a Catholic hospital be morally optional when they cannot morally obliged to accept the transfer of such a reasonably be expected to prolong life or patient if the physician and review committee at when they would be “excessively his current hospital agree that the treatment is burdensome for the patient or [would] medically inappropriate? According to Directive cause significant physical discomfort, for 58, it would seem the answer would be a qualified example resulting from complications in yes, since other considerations of the concrete the use of the means employed.” United circumstances would have to be taken into States Conference of Catholic Bishops, account. Nonetheless, if this is true then it would "ERDs," n..58. seem to be a check against other hospitals 8 See, Christopher O. Tollefsen, Artificial removing MANH from un-consenting PVS Nutrition and Hydration the New Catholic Debate patients. (Dordrecht: Springer, 2008). 16 Texas Advance Directive Act, (1999), 166.050. 9 See, David M. Zientek, "The Impact of Roman 17 Directive 60 reads, “Euthanasia is an action or Catholic Moral Theology on End-of-Life Care omission that of itself or by intention causes death under the Texas Advance Directives Act," in order to alleviate suffering. Catholic health care Christian Bioethics 12, no. 1 (2006). institutions may never condone or participate in 10 For instance, it could be the case that a review euthanasia or assisted suicide in any way. Dying committee agrees with a physician’s judgment that patients who request euthanasia should receive the provision of MANH to an otherwise stable, i.e. loving care, psychological and spiritual support, not considered to be imminently dying, patient in and appropriate remedies for pain and other a persistent vegetative state (PVS) to be medically symptoms so that they can live with dignity until inappropriate. It could further be the case that no the time of natural death.” United States other health care institution is willing to accept Conference of Catholic Bishops, Ethical and patient transfer and that, after the waiting period Religious Directives for Catholic Health Care Services has expired, the MANH is withheld from the n.60. patient. This would seem to touch on the same 18 Tada, 166.002.(10). question (question #2) that the American bishops 19 Joseph Graham, "President Bush and Texas posed to the Congregation for the Doctrine of the Law,"

FEATURE ARTICLE http://www.texasrighttolife.com/lifeIssues_euthana legally vulnerable. See, Elizabeth Heitman and sia_bush.php. Virginia Gremillion, "Ethics Committees under 20 One that is particularly concerning for Catholic Texas Law: Effects of the Texas Advance Directives health care institutions maintains that the law Act," HEC Forum 13, no. 1 (2001): 90. Fine disproportionately affects poor and minority explains the significance of legal support for patients. For instance, all 11 patients in both physicians, stating, “Immunity from civil or studies by Okuysen-Cawley et al. and Eason et al. criminal prosecution for decisions to withhold or were non-white; all patients in the former study withdraw medical interventions from a terminally were reported to be on Medicaid. Okhuysen- ill patient over the objection of a surrogate is Cawley, McPherson, and Jefferson, "Institutional critical in the view of most if not all practicing Policies."; Eason et al., "Withdrawal." Truog cites physicians.” Robert L. Fine, "Point: The Texas statistics from S. E. Shannon that 14 (61%) of the Advance Directives Act Effectively and Ethically first 23 cases reviewed by a group of institutions Resolves Disputes About Medical Futility," Chest under the TADA the patients were African- 136, no. 4 (2009): 965. American. R. D. Truog and C. Mitchell, "Futility- 27 Fine, "Point," 965. -From Hospital Policies to State Laws," American 28 While all hospitals are dedicated to providing Journal of Bioethics 6, no. 5 (2006): 20. Citing, S. compassionate high-quality care to patients and E. Shannon, "Medical Futility and Professional their families, Catholic health care organizations Integrity, Religious Tolerance, and Social Justice," are also committed to treating their employees ASBH Exchange Spring(2006): 5,10. While with the utmost respect and dignity. Research research indicates some truth, several factors might consistently indicates that the provision of contribute to this state of affairs. One possible treatments that the staff, particularly nurses, reason, for which there is empirical data, is that perceive as overly aggressive is the most commonly distrust of the medical profession is higher among cited source of moral distress. See, P. S. Pendry, minority groups such as African-Americans than it "Moral Distress: Recognizing It to Retain Nurses," is among non-minorities. See, Thomas A. LaVeist, Nursing Economics 25, no. 4 (2007); L. S. Meltzer Kim J. Nickerson, and Janice V. Bowie, "Attitudes and L. M. Huckabay, "Critical Care Nurses' About Racism, Medical Mistrust, and Satisfaction Perceptions of Futile Care and Its Effect on with Care Among African-American and White Burnout," American Journal of Critical Care 13, Cardiac Patients," Medical Care Research and no. 3 (2004). Understanding this, the Catholic Review 57, no. 4 suppl (2000). hospital has an obligation to address the moral 21 Truog and Mitchell, "Futility-From Hospital distress of staff members, not only out of a Policies to State Laws," 20. business concern – moral distress is a leading 22 See, Ron Hamel and Micheal Panicola, "Are cause of nursing burnout– but also from a moral Futility Policies the Answer? Caregivers Must obligation that is grounded in the very identity of Improve Communication with Patients and Their the Catholic institution. See, K. M. Gutierrez, Families," Health Progress (Saint Louis, Mo.) 84, "Critical Care Nurses' Perceptions of and no. 4 (2003). Responses to Moral Distress," Dimensions of 23 Robert Fine and Thomas Mayo, "Resolution of Critical Care Nursing 24, no. 5 (2005). Futility by Due Process: Early Experience with the 29 Fine, "Point," 964. Texas Advance Directives Act," Annals of Internal 30 Lawrence Schneiderman, "Effect of Ethics Medicine 138, no. 9 (2003): 745. Consultations in the Intensive Care Unit," Critical 24 Smith et al., "Texas Hospitals," 1274. Care Medicine 34, no. 11 (2006): S362. 25 Truog and Mitchell, "Futility-From Hospital 31 Robert Sibbald, James Downar, and Laura Policies to State Laws," 20. Hawryluck, "Perceptions of "Futile Care Among 26 One of the main reasons that the TADA was Caregivers in Intensive Care Units," CMAJ developed was the fact that no matter how robust a Canadian Medical Association Journal 177, no. 10 given institution’s futility policy was for a (2007). This study indicated that families or physician to withdraw treatment, physicians felt surrogates not understanding the nature of the

FEATURE ARTICLE patient’s condition or the treatment involved was physician’s futility predictions, 32% elected to the primary reason for their requests for treatment continue life support when the physicians’ survival the medical staff judged to be inappropriate. estimate was less than one percent, and 18% chose 32 For instance, Fine recounts that, “In a report by to continue when the physician estimated the multiple ethics committees to the Texas legislature patient had no chance of survival. See, Lucas S. in 2005, of 2,922 ethics consults, including an Zier et al., "Surrogate Decision Makers' Responses estimated 974 futility consults, only 65 10-day to Physicians' Predictions of Medical Futility," letters were issued. Of those 65 cases, 11 patients Chest 136, no. 1 (2009): 110. were transferred within 10 days, 22 patients died 44 Eason et al., "Withdrawal," 644. during the 10-day period, 27 patients had the 45 R. L. Fine et al., "Medical Futility in the disputed treatment withdrawn, and 5 patients had Neonatal Intensive Care Unit: Hope for a treatment extended and/or were transferred later.” Resolution," Pediatrics 116, no. 5 (2005): 1222. Fine, "Point," 967. 46 Of 265 reported outcomes for cases in which 33 One such alternative might be effective palliative the review committee concurred with the care initiatives. According to one recent study, physician, patient transfer (30) was the outcome palliative care initiatives are highly effective at almost exactly as much as was the withdrawal of reducing conflict cases as one study suggests that LST after the ten-day period (33).Smith et al., integrating a palliative care team into the ICU, "Texas Hospitals," 1274. “may be associated with improved quality of life, 47 Eason et al., "Withdrawal," 643. higher rates of formalization of advance directives 48 Okhuysen-Cawley, McPherson, and Jefferson, and utilization of hospices, as well as lower use of "Institutional Policies," 230. certain non-beneficial life-prolonging treatments 49 Section 166.004 states, “A health care provider for critically ill patients who are at the end of life.” shall maintain written policies regarding the S. O'Mahony et al., "Preliminary Report of the implementation of advance directives. The policies Integration of a Palliative Care Team into an must include a clear and precise statement of any Intensive Care Unit," Palliative Medicine 24, no. 2 procedure the health care provider is unwilling or (2010). unable to provide or withhold in accordance with 34 Fine and Mayo, "Resolution," 746. an advance directive.” TADA, 166.004. 35 Eason et al., "Withdrawal," 641.

36 Fine and Mayo, "Resolution," 746. References 37 Smith et al. report that hospitals reported 71 outcomes – out of a possible 265 – of the family Cohen, Elizabeth. "Fight over Baby's Life Support agreeing to discontinue treatment before the end Divides Ethicists." of the ten-day period. Smith et al., "Texas http://articles.cnn.com/2007-04- Hospitals," 1274. 25/health/baby.emilio_1_ventilator-life-support- 38 He explains, “Most families, when confronted medical-experts?_s=PM:HEALTH. by an ethics report that does not support their view and a failed search for an alternative willing Congregation for the Doctrine of the Faith. provider, do not wish to draw out the process for "Responses to Certain Questions of the United the full time allotted under the law.” Fine and States Conference of Catholic Bishops Mayo, "Resolution," 745. Concerning Artificial Nutrition and Hydration." 39 Ibid. The National Catholic Bioethics Quarterly 8, no. 40 Okhuysen-Cawley, McPherson, and Jefferson, 1 (2007): 123-7. "Institutional Policies," 228-9. 41 Smith et al., "Texas Hospitals," 1274. Eason, E. B., R. J. Castriotta, V. Gremillion, and 42 Fine and Mayo, "Resolution," 745. J. W. Sparks. "Withdrawal of Life Sustaining 43 For example, Zier et al. found that 64% of Treatment in Children in the First Year of Life." surrogates expressed doubts about the accuracy of a Journal of Perinatology 28, no. 9 (2008): 641-45.

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Tollefsen, Christopher O. Artificial Nutrition and Hydration the New Catholic Debate. Dordrecht: Springer, 2008.

Truog, R. D., and C. Mitchell. "Futility-From Hospital Policies to State Laws." American Journal of Bioethics 6, no. 5 (2006): 19-21.

United States Conference of Catholic Bishops. Ethical and Religious Directives for Catholic Health Care Services, 5th Edition. Washington, D.C., 2009.

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Zier, Lucas S., Jeffrey H. Burack, Guy Micco, Anne K. Chipman, James A. Frank, and Douglas B. White. "Surrogate Decision Makers' Responses to Physicians' Predictions of Medical Futility." Chest 136, no. 1 (2009): 110.