Institutions should implement strategies to prevent intractable treatment conflicts, including proactive communication and early involvement of expert consultation.

The term “potentially inappropriate” should be used, rather than “futile,” to describe treatments that have at least some chance of accomplishing the effect sought by the patient, but clinicians believe that competing ethical considerations justify not providing them. Clinicians should communicate and advocate for the treatment plan they believe is appropriate. Requests for potentially inappropriate treatment that remain intractable despite intensive communication and negotiation should be managed by a fair process of dispute resolution.

The committee recommends the following approach to manage such cases:

When time pressures (such as a rapidly deteriorating clinical condition) make it infeasible to complete all steps of the conflict-resolution process and clinicians have a high degree of certainty that the requested treatment is outside accepted practice, they should refuse to provide the requested treatment and endeavor to achieve as much procedural oversight as the clinical situation allows.

There are two less-common situations for which the committee recommends different management strategies.

The medical profession should lead public engagement efforts and advocate for policies and legislation about when life-prolonging technologies should not be used.

Three main reasons justify this recommendation. First, collaborative decision making is a fundamental aspect of good medical care and is therefore a valuable ethical goal to foster (10). Second, once conflicts become intractable, there are only “second best” resolution strategies, which are likely to be protracted and burdensome to all parties involved. Third, most disagreements in ICUs arise not from intractable value conflicts but from breakdowns in communication that are amenable to communication interventions. Studies assessing proactive communication strategies have not specifically evaluated whether they prevent conflict, and there is a paucity of empirical evidence about the effect of such interventions on patient and family outcomes. However, such interventions have been shown to reduce the time needed to make decisions (11) and to improve family satisfaction (12, 13). Existing evidence suggests that most clinician–surrogate disputes can be resolved through ongoing communication (3, 4) or with the help of expert consultants, such as ethics or palliative care consultants (14).

Clinicians and administrators should ensure that reliable systems are in place to achieve timely, effective clinician–surrogate communication. Although the focus of this document is on decision making in ICUs, the committee also strongly endorses efforts to improve advance care planning as a way to prevent disputes in ICUs.

During family meetings, clinicians should listen closely to surrogates; provide emotional support and establish a trusting relationship; discuss the patient’s prognosis in clear, jargon-free language; elicit the patient’s values and preferences; and explain principles of surrogate decision making. Based on this conversation, clinicians should discuss which treatment options fit with patient’s goals, including the option of a treatment plan focused purely on palliation (Table 2) (15–22). Clinicians need not offer treatments that are outside the boundaries of accepted medical practice.

If surrogates request treatments that clinicians believe are not consistent with a patient’s values or interests, or are outside the boundaries of accepted practice, clinicians should not simply acquiesce to these requests. Instead, clinicians should seek to understand the surrogate’s perspective, correct any misperceptions, and share the clinician’s perspectives with the surrogate. If the surrogate continues to advocate for treatments that the clinician believes are ill advised, the clinician should respectfully advocate for an alternative treatment course. This is important, because clinicians are obligated to advocate for good medical practice as part of their professional role, and their judgments about the boundaries of good medical practice deserve careful consideration in decisions regarding life-prolonging treatments. In rare cases in which the surrogate is clearly not representing the values or interests of the patient, the clinician should identify an alternate surrogate or seek a court-appointed guardian.

The committee recommends increased efforts to teach clinicians end-of-life communication skills, including strategies to achieve shared decision making, conflict-resolution skills, and skills to emotionally support surrogates facing difficult decisions (23).

Hospitals should implement strategies to identify and intervene on nascent conflict in ICUs by encouraging involvement of individuals skilled in negotiation and communication (24). This recommendation is intended to emphasize that conflicts typically develop and worsen over time as communication breaks down and parties become entrenched in their positions. In some hospitals, ethics or palliative care consultants may be most skilled in mediation and conflict resolution. Other individuals may also be especially skillful in this role, such as expert clinicians, social workers, chaplains, and trained mediators. Hospitals should foster an organizational culture that encourages the early involvement of expert consultants to assist in conflict resolution.

The committee recommends use of the term “potentially inappropriate” rather than “futile” to emphasize two important aspects of such judgments. First, the word “inappropriate” conveys more clearly than the word “futile” or “ineffective” that the assertion being made by clinicians depends both on technical medical expertise and a value-laden claim, rather than strictly a technical judgment. Second, the word “potentially” signals that the judgments are preliminary, rather than final, and require review before being acted on. The ethical concerns that may be raised to justify the refusals include concerns that the treatment is highly unlikely to be successful, is extremely expensive, or is intended to achieve a goal of controversial value (Table 3).

Several considerations justify a procedural approach to conflict resolution, rather than giving all decision-making authority to either surrogates or individual clinicians. Giving sole authority to surrogates is problematic because, although it is generally accepted that patients/surrogates should be allowed to choose from accepted, available treatment options, there is no positive right to interventions that are outside the boundaries of accepted practice. In addition, surrogates sometimes experience strong emotional and psychological barriers to authorizing decisions to forego life support, even when those decisions are clearly consistent with the patient’s values and preferences (25, 26). Giving unilateral authority to surrogates may create a disincentive for them to genuinely consider clinicians’ perspectives and to move through the emotional challenges of foregoing treatment when doing so is consistent with a patient’s values and preferences (27).

Giving sole authority to individual clinicians is problematic because there is well-documented variability between clinicians in their judgments about what is appropriate care in such cases, raising the concern of undue variability in treatment decisions (1, 28–32). In addition, the perspectives of ICU clinicians about preferences for end-of-life care often differ significantly from the perspectives of patients and their family members (33–35). Giving all authority to clinicians may also create a disincentive for clinicians to fully engage in the time-consuming, challenging conversations often required to support surrogates and achieve mutually agreeable decisions.

A process-based approach to conflict resolution is also recommended because the cases in question are ethically controversial, have important interests at stake, and do not have explicit rules that can be mechanically applied to resolve disputes (36, 37). It is ethically important to incorporate multiple perspectives to minimize the risk that the values of any one individual will carry undue weight. In addition, process-based approaches better fulfill democratic ideals for resolving conflicts involving fundamental interests, such as transparency, legitimacy, accountability, and opportunity for appeal (38, 39). Procedural fairness is especially important because these cases generally involve patients who are vulnerable by virtue of incapacity, who have little choice regarding their treating clinicians, and who, because of their overwhelming illness, have severely limited ability to seek out other caregivers. Practically speaking, process-based approaches may allow mutually agreeable solutions to emerge as the conflict-resolution process unfolds over time (5). Within institutions, a process-based approach to conflict resolution may lessen arbitrariness by ensuring broader input, consistency, and the possibility for continuous institutional learning about how to manage future cases (39).

Hospitals should develop and adopt conflict-resolution processes that contain the seven characteristics detailed below, which are broadly informed by the conflict-resolution literature, philosophical conceptions of procedural justice, and prior professional society guidelines (Table 4) (5, 6, 8, 40–43). This process should be an option of last resort for the relatively rare cases in which conflicts remain intractable despite intensive communication and negotiation. In general terms, clinicians should conceptualize their judgments that requested treatments are inappropriate as preliminary claims in need of confirmation, rather than conclusions to be immediately acted on. The committee recognizes that some state laws or statutes may not currently permit this approach to resolving intractable clinician–surrogate conflicts and recommends that clinicians advocate to amend such laws (44).

Very rarely, situations will arise in which surrogates request treatments that clinicians have a high degree of certainty are outside accepted practice, but because of the urgency of the clinical situation, there is insufficient time to complete all steps of the recommended resolution process. For example, in a moribund, frail patient with multiple comorbidities who is on maximal circulatory support, surrogates may request extracorporeal membrane oxygenation when such an intervention is generally regarded as outside of the boundaries of accepted medical practice. Whenever possible, a temporizing treatment plan should be initiated to allow as much of the conflict-resolution process as possible to be completed. Such a plan need not include the requested treatment if the clinicians have a high degree of certainty that it is outside the boundaries of accepted practice.

Before refusing the requested treatment, clinicians should: (1) pause to check that the facts are clear, assumptions are verified, and moral blind spots are illuminated (see Table 5 for questions to assist in this analysis); (2) to the extent possible, engage other clinicians to ensure consensus regarding the refusal; and (3) explain to the surrogates the reasons for refusing to administer the requested treatment, with the goal of reaching a mutually agreeable decision.

The ethically important features of this strategy are that clinicians: (1) base judgments on their best understanding of their professional obligations, (2) have a high degree of certainty that the treatment being requested is outside the boundaries of accepted practice, and (3) only enact this strategy when it is not feasible to carry out the steps of the resolution process. Because decisions made using this approach have fewer procedural safeguards than decisions that carry out the entire process outlined above, they likely come with a higher degree of legal uncertainty for clinicians and health care institutions.

We recommend a narrow definition of the term “futile”—treatments that have no chance of achieving the intended physiologic goal—for two reasons (Table 3). First, using a narrow definition highlights a basic distinction between interventions that cannot work and those that might accomplish the desired physiologic effect but raise countervailing ethical concerns (i.e., potentially inappropriate treatments). This distinction is important because, although there is general agreement that clinicians need not provide strictly ineffective interventions, there is controversy regarding how to resolve conflicts about treatments that might produce effects of controversial benefit. For example, there is widespread agreement that clinicians need not administer cardiopulmonary resuscitation (CPR) to a patient who died many hours ago, because it cannot achieve any accepted medical goals (9). In contrast, there is legitimate controversy about whether administering CPR to a critically ill patient with advanced metastatic cancer should be undertaken in light of the small chances and duration of benefit. Additionally, broader definitions of futility (51) are problematic because they often hinge on controversial value judgments about quality of life or require a degree of prognostic certainty that is often not attainable.

Clinicians should not provide futile interventions for several reasons. First, it is widely accepted that administering ineffective interventions goes against the most basic ethical obligations of clinicians to benefit individual patients and to avoid harm (7, 52, 53). Such refusals are also justified by the profession’s obligation to steward medical resources responsibly, which preclude administering expensive interventions that cannot accomplish the desired physiological goals (54, 55). Additionally, the medical and nursing professions have a legitimate interest in safeguarding their integrity and trustworthiness, which would be undermined if clinicians administered interventions that they knew could not benefit the patient.

When responding to requests for futile interventions, clinicians should seek to understand the reasons for such requests, empathically correct misperceptions, provide emotional support, and explain why the requested interventions will not be provided. If disagreement persists, clinicians should generally obtain expert consultation to assist with conflict resolution. Clinicians should consider seeking expert consultation to provide intensive psychosocial support to the surrogate. Clinicians should not be required to administer futile interventions during the time period in which communication consultants are being involved. There should be retrospective institutional review of such cases to foster institutional learning and to identify systems-level strategies to prevent similar occurrences in future cases.

“Legally proscribed” treatments are those that may accomplish an effect desired by the patient, but for which there are laws, applicable judicial precedent, or public policies that prohibit their use (Table 3). “Legally discretionary” treatments are those for which there exist laws, judicial precedent, or policies that give physicians permission to refuse to administer them. These categories are important because they highlight that futility is not the only legitimate basis for clinicians to refuse to provide a requested intervention.

For example, if the surrogate of a patient with far advanced liver failure requests that clinicians expedite liver transplantation by circumventing existing organ allocation practices, the clinicians are justified in refusing the request (legally proscribed). Even though faster access to liver transplantation might accomplish the patient’s medical goal, clinicians’ refusal is permitted because there are explicit, well-established rules governing organ allocation. Additionally, some states have statutes that give physicians permission to forego CPR and other procedures in strictly defined circumstances (legally discretionary) (56).

Currently in the United States and most other countries, there are few laws, precedents, or widely accepted policies that can be applied to resolve conflicts in ICUs. We do not attempt to propose individual rules, because such determinations will likely evolve over time and will almost certainly vary within and across countries depending on how certain values are prioritized. Such variability should be permitted in light of moral pluralism (the idea that people often disagree over how to prioritize countervailing fundamental values [57]) and differences in health care resources across countries (58, 59).

Clinicians should not provide legally proscribed treatments and need not provide legally discretionary treatments if they are not indicated. When society has legitimately developed rules to govern controversial aspects of medical practice, clinicians are justified in acting according to those rules as part of their professional role. As a caveat, rules regarding legally proscribed or legally discretionary treatments may vary from state to state, or jurisdiction to jurisdiction.

When responding to requests for a legally proscribed or legally discretionary treatment, clinicians should ensure that they are correctly interpreting the relevant rule, seek to understand the reason for the request, explain why the requested intervention will not be provided, and provide emotional support. In general, clinicians should involve individuals with expertise in interpreting existing regulations (i.e., ethics consultants or legal counsel) to ensure that the rule is correctly interpreted and applied. Involvement of expert consultants should also be considered to help facilitate clear, accurate, and supportive communication with the surrogate.