Responding to Inappropriate Requests for Therapy in the ICU

 Respiratory therapists are often confronted with requests to continue ventilatory support even when therapy is considered futile.

More than 2.4 million people die annually in the United States, approximately 500,000 die in an intensive care unit (ICU), and 90% of these experience limitations to treatments.1

Most people accept trials of ICU care hoping for healing and a return to good health. For those who experience the end of life in the ICU, most do so after shared decision-making among providers, families, and sometimes themselves. When the burdens of ongoing attempts to cure outweigh the benefits or possibilities, good communication and shared decision-making help in the transition away from curative interventions to a comfort care focus with the acceptance that death is approaching. Rarely, patients or their surrogates make unreasonable requests for therapies or life-sustaining treatment that are in conflict with the limits of good care or practitioners’ judgments. Members of ICU care teams need a proscriptive approach to ensure ethical resolution of these conflicts and the provision of appropriate care for their patients.

Respiratory therapists play an integral role in the ICU and are particularly subject to inappropriate requests for ventilatory support for patients who have no hope of recovery. Both patients and professionals are harmed when inappropriate therapies are inflicted on the dying. The goals of medicine underlie the ethical foundation of ICU care: to restore health and to relieve suffering. When a treatment does not fulfill a goal of medicine, it can be considered inappropriate and withheld or withdrawn. Providers are obligated to attempt to relieve suffering, including facilitating a peaceful and dignified death and not prolonging the process of dying.2

A futile therapy might be defined as one that a physician has determined will be of no benefit to a patient or will achieve no reasonable therapeutic goal. If the concept (of futility) could be made operational, a useful limitation to treatments might be realized. Unfortunately, the lack of a practical and objective working definition precludes the use of futility in all but the extreme cases. We are unable to predict with acceptable levels of certainty that a treatment will be of no benefit. Even when prognostication seems clear, conflict can occur in the definition of benefit.

When we respect a patient’s autonomy, the patient’s preferences and goals should help inform how we assign benefit; it is impossible for a provider to ascribe a benefit of zero without taking into account the patient’s values and goals. Instead of invoking futility, one may demonstrate that a treatment is disproportionate or inappropriate. Proportionality requires that the expected or realized benefit of a therapy exceeds the burden associated with its use.3 In general, such determinations are most useful in assisting communication and the decision-making process—communication becomes the antidote for most futility conflicts. But in some situations, even the best communication cannot overcome a patient’s or surrogate’s desire for treatment against all odds.

To resolve conflicts during which patients or surrogates request inappropriate therapy in the ICU, a fair process with checks and balances needs to be consistently applied. Once a professional makes a determination of disproportionate or inappropriate therapy, the first requirement is that comprehensive communication with the patient or decision-maker has been achieved. Often decision-makers do not want to consent to stopping life-sustaining therapy but may assent if the physician impugns the treatment as more harmful than beneficial. Clinicians should have maximized palliative care, communicated what is being done to ensure comfort, and documented a second opinion by a qualified consultant within the institution. This independent medical review should confirm the disproportionate or inappropriate nature of the intervention, the use of best palliative practices, and that adequate communication with decision-makers has been attempted. The intramural second opinion within an institution and use of interdisciplinary teams can overcome perceptions of abandonment by the patient or family and warrant that the treatment request is inappropriate.

The second requirement is that a formal procedure be in place and be consistently applied. This approach has been demonstrated to be effective; in an experience with 43 cases at Baylor University, all but six were solved by mediation, three more families eventually agreed to withdrawal of life support, and the final three died during a proscribed waiting period.4 The process approach should be provided in writing to the decision-maker in advance of a formal mediation process. After clarifying the conflict, a formal arbitration should be conducted with key stakeholders—a fair process where providers, decision-makers, and neutral parties can attempt to achieve consensus. If conflict remains, a notice of the intent to withhold or withdraw a therapy should be given and a multiday waiting period be set. During this waiting period, the providers should facilitate the opportunity for a second opinion extramural to the institution. If an alternative provider is identified, one should facilitate transfer of the patient to that person’s care. There should be in place a means to extend the waiting period for extraordinary circumstances. Finally, when the process approach steps have been completed and the waiting period lapsed, unilateral withholding or withdrawal of a therapy or intervention may be done and optimal palliative care delivered.

Richard Mularski, MD, is staff physician, Department of Medicine, Pulmonary and Critical Care and Palliative Medicine, Veterans Affairs Greater Los Angeles Healthcare System, Los Angeles; member, national ethics committee, Veterans Health Administration, and the UCLA ethics committee; and Fellow in Health Services Research at the Veterans Health Administration.

1. Carlet J, Thijs LG, Antonelli M, et al. Challenges in end-of-life care in the ICU: Statement of the 5th International Consensus Conference in Critical Care: Brussels, Belgium, April 2003. Intensive Care Med. 2004;30(5):770-784.
2. Mularski RA, Osborne ML. The changing ethics of death in the ICU. In: Curtis JR, Rubenfeld GD, eds. Managing Death in the Intensive Care Unit. New York: Oxford University Press; 2001:7-18.
3. President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research. Deciding to Forego Life-Sustaining Treatment: A Report on the Ethical, Medical, and Legal Issues in Treatment Decisions. Washington, DC: US Government Printing Office; 1983.
4. Fine RL, Mayo TW. Resolution of futility by due process: early experience with the Texas Advance Directives Act. Ann Intern Med. 2003;138(9):743-6.