Futile Care

Most people are unaware of a very real threat to their lives that may be lurking in their hospital: a “futile care” policy.

In recent years, a new bioethical theory of “futile care” has taken hold. When a patient reaches a certain stage of illness, injury, disability, or age, life-sustaining treatment is considered “futile” and withheld or withdrawn based on the attending physician’s opinion that the patient’s quality of life is low. Therefore, “allowing” the patient to die is deemed compassionate and cost-efficient.

Note: Life-sustaining treatment includes artificially administered food and water, antibiotics, insulin, ventilators, and other ordinary, basic types of care. This is different than stopping further treatment that would be very painful or burdensome to the patient, experimental, or simply no longer effective in curing the ailment.

In many “futile care” decisions, it is the patient who is considered useless, not the treatment.

Consider Texas. In 1999, lawmakers enacted the “10-day law” (Texas Health and Safety Code, Section 166.046), which gives full immunity to physicians and hospitals that remove life-sustaining treatment against the wishes of patients or their advocates (usually family members), with no appeals process for patients. After a patient/ advocate is notified of the physician’s decision to refuse to comply with the patient’s treatment wishes, the decision is reviewed by the hospital’s own ethics committee. If the committee agrees with the physician’s refusal (which is the usual result), the patient/advocate is given notice and 10 days to transfer to another physician or facility, after which, the law states, “The attending physician, any other physician responsible for the care of the patient, and the health care facility are not obligated to provide life-sustaining treatment.”1 Transfer of a critically ill patient, particularly with a “futile care” decision in his or her medical record, often proves to be extremely difficult or impossible. In 2023, the law was amended to extend the countdown from 10 days to 25.2

Texas has an unethical, inhumane law, but at least it requires hospitals to notify patients or their advocates when medical futility decisions are made. In other places, doctors and hospitals make and carry out these decisions in secret.

It was inevitable that the acceptance of the “right to die” when and how you choose would lead to the “duty to die” when and how someone else chooses for you.