Bioethics has no theory of process. We have labored to develop a widely shared set of substantive values, but have been slow to spell out exactly what processes our values command. Nor have we examined process itself, to gauge the impact of different procedures and debate what we should value in process itself.

The little work that has been done on process focuses almost exclusively on what action should be taken in one-to-one encounters. Thus, much has been said on the obligation of the physician to speak with the patient, share information, and seek consent. Indeed, it would have been difficult to advocate respect for patient autonomy at all, without at least requiring this minimal and individualistic sort of procedure. But the requirement of certain behaviors in individual encounters has not been set in any broader vision of institutional process.

Susan Wolf, in an important article on hospital or institutional ethics committees (IECs) and due process, writes:

There are few data upon which to draw to disagree with Wolf's first claim about a due process “wasteland.” I suspect that it is mostly true, although one can observe, as I do, that Susan Wolf has omitted a great deal of evolution concerning ethics consultation in her article.

Two Athenians set out to found a city free from the sophistry, power struggles, and litigiousness of Athens in Aristophanes’ play, The Birds. Their creation is to stand as a shining example of a virtuous demos in which reasoned discourse will give birth to goals beneficial to the individual and the community. The city that emerges, “Cloudcuckooland,” turns out to be a replica of Athens, driven by a morality of self-interest and the lust for world conquest. Its founders’ dream fades in a maze of doubtful arguments, crippling red tape, and insatiable litigiousness. Even so, Aristophanes hints, the dream survives, for no Athenian can escape from the restless hubris that leads to daring creation.

Special committees have been created in recent years to address difficult ethical issues in clinical care free from the bureaucratic amorality, professional friction, and litigiousness that can characterize problem-solving within health care institutions.

It has recently been observed that in the United States hospital ethics committees have passed through their infancy and that, even though they may not yet have come of age, they have entered their adolescence. Accordingly, they must increasingly expect to be held to account for their conduct, and be prepared for others to anticipate not only that they can be self-reliant but that their communities may rely on them to undertake several functions of public significance. The claim that they have grown beyond their infancy remains contentious in the U.S., and is unlikely to be made of Canadian hospitals ethics committees with the same confidence. It is not too early, however, to anticipate a time when Canadian committees too may be considered capable of performing acts that are of considerable public importance, particularly concerning hospital policies on organ transplantation.

In the landmark case of Crzan v. Director, Missouri Department of Health; the United States Supreme Court went out of its way to emphasize that the state was paying for Nancy Cruzan's care. The court refused to allow removal of the artificial nutrition and hydration that was maintaining Nancy Cruzan in a persistent vegetative state (PVS). What if, instead of the state's paying for the care, the parents had to “spend down” in order to be eligible for Medicaid? Could the state opt for life and require the family to pay for the care? If not, do constitutional rights depend on who can or will pay the cost of care?

Now turn the facts of Cruzan around and assume that the parents want to keep the child alive. Could the parents force the state to bear the cost of keeping a PVS patient alive indefinitely? If not, why should the state, but not the parents, have a constitutional right to preserve life? Do constitutional rights boil down to dollars?

“Medical futility” may be provisionally defined as a medical conclusion that a therapy is of no value to a patient and should not be prescribed. The current debate about medical futility is one of the most important and contentious in medical ethics. Proponents believe that allowing physicians to determine and withhold futile therapies can he done without disturbing the current paradigm of medical ethics which respects patient autonomy with regard to informed consent and the right to refuse treatment. Others conclude that medical futility is simply an unacceptable form of medical paternalism. Some adopt a middle position that doctors can predict medical futility; they believe that attempting this does not necessarily justify imposing decisions to forgo life-sustaining therapy on patients.

Regardless of its policy outcome, this important debate is leading to a reexamination of the nature of a patient's entitlement to health care and of the ends of medicine. It has two aspects. A definitional debate examines rhe concept of medical futility and its derived clinical criteria.

Joseph Finelli, after a heart transplant, is being artificially maintained by medications and a gastrostomy tube (G-tube). He is not brain dead nor in a persistent vegetative state. In my role as court-appointed Guardian ad Litem (GAL-court investigator), it appears to me that Mr. Finelli is being treated against his stated goals and values. After applying the substituted judgment factors, I recommend the withdrawal of the medication which sustains his life. His family adamantly opposes my position.

Joseph Finelli is a 57-year-old Italian-American Catholic husband and father of four adults. Mr. Finelli was an “extremely active” man. He enjoyed training dogs, hunting, running, and was an “avid” biker. Debilitating congestive heart failure eventually confined his activities to walking ten steps at a time. Surrendering his active life produced pronounced depression.

Two of the patient's rights in a Uniform Act for the Terminally Ill should he a) the right to be treated if there is reasonable doubt of the patient's wishes until it becomes clear that the treatment is not beneficial and that the patient is indeed terminally ill, and b) the right not to he subjected to treatment with no medical benefit. A physician with appropriate supporting independent opinions would he the logical individual to whom the responsibility of protecting those rights should be given. This is particularly true when the patient is incapable of his or her own medical decisions and has left no instructions regarding his or her personal goals in medical care in the event of severe illness. Two cases and an analysis of power in medical decision-making illustrate these points.

Is it futile to sustain biologic life when the patient will permanently require intensive medical care? Dr. Koch and Dr. Miles agree that such treatment would be futile; however, their concept of futility rests on no explicit standards and reflects no communal judgment. The authors view the lack of widely accepted medical standards as an impediment to answering this question definitively. Dr. Koch laments that patients and their families have seized too much power and have begun deciding that mere biologic life is worth sustaining. And Dr. Miles sees benefit to perceiving a decision not to sustain such life as “primarily biomedical” and “realistic.”

Here is where we disagree with these authors. We do not see the problem as a lack of standards that are medical. The question of prolonging a patient's life when the patient has no likelihood of regaining consciousness confronts moral, political, and economic issues.

Is it futile to sustain biologic life when the patient will permanently require intensive medical care? Dr. Koch and Dr. Miles agree that such treatment would be futile; however, their concept of futility rests on no explicit standards and reflects no communal judgment. The authors view the lack of widely accepted medical standards as an impediment to answering this question definitively. Dr. Koch laments that patients and their families have seized too much power and have begun deciding that mere biologic life is worth sustaining. And Dr. Miles sees benefit to perceiving a decision not to sustain such life as “primarily biomedical” and “realistic.”

Here is where we disagree with these authors. We do not see the problem as a lack of standards that are medical. The question of prolonging a patient's life when the patient has no likelihood of regaining consciousness confronts moral, political, and economic issues.

I welcome the long-overdue recognition of medical futility represented by the contributions of Koch, et al., Miles, and Dew, although I would be more comfortable with using the more global (and optimistic) term of “beneficence.” However labeled, the notion that medical treatment decisions are primarily that—medical decisions—is a far more appropriate starting point in both law and ethics than the customary departure point of patient autonomy. This is particularly true in cases in which the patient is not competent, and prior expressions of intent are remote, vague, or otherwise unreliable. Despite such flaws, prior statements have been invested with a talismanic quality, permitting avoidance of the genuine moral issues of duty and benefit that are presented by every severely ill and incompetent patient.

The rise of patient autonomy may actually have had less to do with genuine concern for the liberty of the patient than with the moral vacuum created by an excessively pluralistic view of medical ethics. Courts in particular have fallen out of the habit of a priori moral reasoning, replacing this discipline with balancing tests of asserred personal and governmental power.

The subject of physician efforts to limit care by unilaterally withholding particular therapies, even if the patient, or the family of an incompetent patient, wishes continued care, plays an increasingly prominent role in discussions of clinical medical ethics. Some providers have described a professional duty to define the futility of care, and to act on the determination of futility even in the face of the patient’s, or a surrogate’s, resistance. This aggressive stance has gained intellectual momentum and may be percolating down into clinical practice.

Given the history of the medical profession's diffident attitude toward patients’ rights and its reliance on well-meaning paternalism, the notion that doctors should determine futility and limit access to specific interventions must be carefully scrutinized. Indeed, the emergence of two other themes in health policy and ethics, in particular the living will/power of attorney initiative on the one hand and the open discussion of rationing care in Oregon on the other, tends to undermine the key rationales for physician control over futile care.

In 1990, the United States Supreme Court issued a decision in the Cruzan case, the first “right-to-die case” to reach that court. Prior to the Court's decision, there was widespread speculation as to what it would decide and what the impact of the decision would be. Speculation about the impact of the decision intensified after it was announced, with many suggesting that it would prove to be a serious setback to the consensus about the legality of terminating life-sustaining medical treatment that had evolved in the state courts since the Karen Quinlan case ushered in the era of right-to-die litigation in 1976.

This article examines a number of aspects of the legal consensus about forgoing life-sustaining treatment that emerged prior to Cruzan and discusses their viability in light both of what Cruzan did and did not decide and in light of subsequent judicial decisions in right-to-die cases. Two years after the Supreme Court's decision, it is apparent that the pre-Crtrzan legal consensus is stronger than ever.

Incoming patients across the country, as a requirement of the Patient Self-Determination Act,’ are met on the threshold of hospitals and informed of their right to accept or refuse treatment. They are also offered information about formulating advance directives to govern the use of lifesustaining treatment should they lose decision-making capacity. It is generally assumed that instructional directives covering specific treatment interventions must be followed in every setting within the hospital.’ This assumption is reinforced by the requirements of the Patient Self-Determination Act, since options accepted by patients at the portals of a health care institution are likely to be perceived as in force throughout the facility.

The “Do-Not-Resuscitate” (DNR) order is a specific directive mandating that cardiopulmonary resuscitation (CPR), a dramatic intervention that can restore breathing and heartbeat to patients who have experienced cardiac arrest, should not be performed on patients. Patients or their surrogates who agree to the entry of DNR orders into their medical records usually do so because they believe CPR would be useless or disproportionately burdensome.

Wanzer, et al., have noted that “all too frequently, physicians are reluctant to withdraw aggressive treatment from hopelessly ill patients, despite clear legal precedent.” Our collective clinical experience confirms that this reluctance persists among some physicians. In this study, we investigated physicians’ attitudes, knowledge, and reported practices regarding the effects of perceived legal constraints on the abatement of life-sustaining treatment from patients who are clearly dying. A factor in assessing these issues is the concept of defensive medicine-that is, the perception that doctors are being forced to order every possible laboratory test and second opinion, or to continue providing non-beneficial life-sustaining treatment, solely to protect themselves from future legal claims. This perception appears widespread among practicing physicians. However, we believe that defensive medicine represents only part of a complex constellation of factors that comprise physicians’ reluctance to abate treatment. This phenomenon encompasses medical, ethical, legal, social, psychological, and spiritual factors interacting in ways that are not fully understood.

Education to induce people to stop doing things that put them at risk of acquiring HIV infection has been all but universally acknowledged as the primary means of controlling the epidemic. Yet in the United States, official education efforts have been halfhearted. A substantial share of federal prevention money has been invested in individual testing and counseling, while other forms of prevention education have been largely left to private organizations whose effective use of federal education grants has been hampered by blue-nosed content restrictions. Despite the good intentions of many individual officials, the government has never thrown its full weight behind education; on the contrary, its policies of censorship and shame have sounded sympathetically with the AIDS-phobia of leaders in the national media, who for ten years have resisted so slight a step as accepting paid condom advertising. On several occasions, crucial studies of Americans’ sexual behavior have been cancelled under conservative pressure, and only in the past two years has the government begun assessing the success of such education as has been conducted.

To the surprise of many and the dismay of some, the U.S. Supreme Court took it upon itself last term to proclaim a national compromise on the question of abortion. The Court's announced truce, an elaboration on Justice O’Connor's “undue burden” idea, is pragmatic in design but unlikely to prove stable in practice. The three justices who spoke for the Court disparaged Roe with reluctant praise, then upheld its outer shell on the ground that social expectations and the need to sustain the appearance of the rule of law made it impolitic to do otherwise. This awkward doctrinal invention seem unlikely to yield a lasting peace. However artful as political brokerage, it is unpersuasive as principled jurisprudence. Its explicitly political calculus invites skepticism about its authors’ commitment to principled method even as it purports to preserve public regard for judicial legitimacy. Moreover, there is an unexplained “disconnect” between the opinion's avowed preservation of Roc's “essential holding” and its abandonment of Roe's commitment to reproductive freedom as a compelling interest.