Patient Transfers

Two paramedics are called to the home of a 60-year-old man (Mr. Smith) suffering from chest pain. Vital signs reveal a blood pressure of 90/60, a pulse of 50 and irregular, and respirations of 24. The ECG shows multiple PVCs (which means that he is at high risk of suffering a cardiac arrest). Smith requests to be transported to St. Mary's Hospital where his doctor and records are located.

The paramedics, however, believe that he is potentially unstable, and they decide to transport him to the nearest hospital, which is County General. At County General, the emergency physicians want to admit Smith to the coronary care unit. He again requests transport to St. Mary's Medical Center where he had heart surgery several years ago. The admitting doctors believe that his condition is potentially unstable and do not want him transported. Nonetheless, Smith persists in his demands to be transferred to St. Mary's Medical Center.


Medically, it would probably be best for the patient to be admitted to the Coronary Care Unit at County General as soon as possible. On the other hand, the patient's physicians and records are at another hospital, and admitting the patient where he is not comfortable or refusing to transfer the patient may not be in the patient's best interest. What is the paramedic's respon­sibility? Is potential medical instability the overriding factor in all cases?

Commentary

This case exposes two problems with the generally plausible claim that a para­medic's responsibility (obligation) is to act in the best interest of his patient. The first problem concerns the sense of a patient's "best interest" that a paramedic is to try to secure, and it is exposed in the last few lines of the case when we are told that while immediate admittance to County General would seem to be in Smith's best interest when viewed from one perspective (the narrow vantage point of providing the statistically least risky response to potential instability), it may lose this status when viewed from another perspective (for example, one taking a variety of interests into account).

Thus the problem is that until we clarify which of a patient's interests are relevant to the paramedic's obligation, we cannot determine which treatment alternative would best protect those interests, nor whether the paramedics fulfilled their obligation by taking Smith to County General.

The second problem presupposes that we have a relatively clear understanding of the internal structure of a paramedic's obligation to act in the best interest of his patient and questions the strength of this obligation when it conflicts with other morally relevant considerations, most notably, with a patient's right of self-determination. In the present case, the potential for conflict lies in the fact that Smith's demand to be taken to Saint Mary's may amount to a demand for treatment that is not in his best interest and perhaps a denial of consent to the treatment that is in his best interest.


And if this is the case, given that a competent person's right of self-determination includes the right to accept or reject medical treatment independent of whether that treatment is in his best interest, the paramedics will not be justified in treating Smith contrary to his demand unless it can be shown either that he is not expressing a voluntary and informed decision to reject the treatment that is in his best interest in favor of a riskier alternative or that emergency situations such as this one provide grounds for justifiably suspending or modifying the general right of self-determination.

An additional problem would arise if the paramedic were given instructions from the base station physician which were not in the patient's best interest. The conflict now would be between the paramedic's obligation to act in the patient's best interest and his obligation to follow the issued instructions. While this is an important problem, I will not address it here and will, instead, restrict my focus to the above-mentioned (potential) conflict between the obligation to act in the patient's best interest and the obligation to respect a patient's right of self-determination. To this end I will assume the paramedic and the relevant physician agree on what would be best for Smith.


In short, the two problems that stand in the way of resolving this case are (a) the need to clarify the sorts of interests and considerations with respect to which a paramedic is to determine the treatment that is "best" for his patient and (b) the need to determine the grounds by which a paramedic may justifiably treat a patient in accordance with his best interest and contrary to an expressed demand for a riskier alternative. In the first part of this essay I discuss, quite generally, a few of the ways in which we might understand the general claim that a paramedic has an obligation to act in the best interest of his patient.

My aim here is more to suggest the direction that a reasonable account would take than to defend one precise interpretation. In the second part of this essay I begin with the assumption that immediate admittance to County General is in Smith's best interest (or, rather, is the treatment that is called for by the paramedic's obligation) and examine five potential justifications for treating Smith in accordance with this assumption and contrary to his demand to be taken to Saint Mary's.

DETERMINING THE BEST INTERESTS OF THE PATIENT


Did the paramedics fulfill their obligation to act in Smith's best interest by taking him to County General, or would it have been better for Smith to have been taken to St. Mary's? As suggested above, answering this question requires that we first clarify the sense of a patient's "best interest" that a paramedic is to try to secure. Only then will we be in a position to determine which treatment alternative would fulfill this obligation and assess whether the risk posed by potential instability will always be an overriding consideration. Table presents some of the grounds by which a paramedic might determine what is in the best interest of his patient.


Table. Grounds for Determining a Patient's "Best Interests."

1. Subjective best interest — based on the patient's personal values and interests.

2. Immediate objective best interest — based on the universal human interest in avoiding signif­icant harm and death.

3. Overall best interest — based on a combination of the patient's attitudes, values, and hedon­istic considerations as well as on his immediate and long-term objective interests.

4. Modified objective best interest — based primarily on the patient's fundamental immediate interest in avoiding death and significant harm but with consideration given to the patient's other interests if (a) all treatment alternatives will protect patient's physical well - being and (b) no treatment alternative is significantly less risky than the others.

Subjective Interests


One option is to interpret the paramedic's obligation as directing him to act in the patient's subjective best interest. This option can be quickly dismissed though, because in the absence of a written document, it is unlikely that a paramedic would have the necessary information about a patient's subjective values and interests that he would need before he could determine which treatment would best protect those inter­ests.

Furthermore, even if the paramedic should seem to have such information, he would have the time neither to assess its accuracy nor to determine whether he has overlooked some conflicting information. So let us set aside the purely subjective inter­pretations and turn our attention to the primarily objective accounts.

Immediate Objective Interests


A second interpretation can be derived from the importance of a patient's immediate objective interest in avoiding significant harm or death from the current medical emer­gency. Since the satisfaction of this interest is often a necessary condition for the fulfillment of a patient's other interests, and since its satisfaction often requires that quick decisions be made on the basis of accurate information, we might view the para­medic as justified in concentrating solely on this interest while ignoring considerations about the patient's comfort, attitude, values, and long-term interests.


More precisely, we could adopt a narrow interpretation of the paramedic's obligation which (a) regards the patient's immediate objective interest in avoiding serious harm and death as the only relevant interest and (b) instructs the paramedic to try to protect this interest by examining the least risky response to the specific problem indicated by the patient's vital signs and other objectively measurable criteria and providing the statistically least risky response to the indicated problem. With respect to the present case, this would amount to providing the medically preferable response to the signs of potential instability, that is, immediate admittance to the nearest coronary care unit.

In criticism of this narrow interpretation, one might note the following two dif­ficulties. First, while its basic aim is to protect the patient's immediate physical well-being, it is not clear that providing the least risky response to the specific medical problem (for example, the instability) will actually work toward this end.

For even though the relevance of such considerations as the patient's comfort, attitude, or emotional state cannot be as precisely measured or predicted as, say, the patient's vital signs, and even though paramedics do need to make quick decisions using accurate information, completely ignoring these less quantifiable considerations can have an adverse effect on the patient's physical condition. In the present case, for example, it may be that repeatedly ignoring Smith's demand to be taken to Saint Mary's will anger him to the point of triggering an arrest that otherwise would never have occurred.

And if this is the case, while immediate admittance to the nearest coronary care unit may be the best response medically to the specific signs of potential instability when this problem is considered in isolation, it is not the treatment that is in Smith's best interest.


Perhaps this first criticism could be partially met by affording the paramedic the discretion to consider a patient's other interests when, and only in so far as, they are likely to affect the patient's physical condition. For example, a patient's anger at being treated against his will, or even his comfort level, would be relevant when it would be likely to show itself as a change in his vital signs. This modification would then give the narrow interpretation of the paramedic's obligation a better chance of achieving its aim of protecting the patient's immediate welfare, without also requiring the paramedic to assess and balance numerous and only vaguely measurable considerations.

But the second criticism remains: Even though a paramedic cannot be expected to consider all of a patient's interests, why should a patient's immediate objective interest in avoiding harm and death be the only relevant interest? No doubt this is a centrally important interest, but when the information is available, why not allow the paramedic to take into account the patient's long-term objective interests as well as some of the more hedonistic or subjective considerations?

This implicit suggestion that other in­terests are relevant becomes especially persuasive when we consider cases in which (a) both treatment alternatives have a very high probability of protecting the patient's immediate welfare and (b) one alternative is slightly less risky than the other. For example, suppose that both County General and Saint Mary's have fine coronary care units and that the latter is one-fourth mile further away. In such a case, it is intuitively plausible to claim that the greater satisfaction of a patient's long-term, hedonistic or subjective interests can compensate for the minimally greater risk to the patient's im­mediate objective interests and thus tip the scales in favor of the riskier treatment.

Overall Interests


The above criticisms suggest that we might want to abandon the narrow inter­pretation of the paramedic's obligation in favor of one at the other end of the scale, one directing the paramedic to determine and provide the treatment that is in the patient's "overall" best interest. According to this third interpretation, the paramedic is to respond not just to a specific medical problem but rather to the person who happens to have a medical problem.

That is, he is to consider the patient's attitude, values, immediate and long-term objective interests, and even some of the more hedonistic considerations, balance these, and then provide the treatment that will be best for the patient overall. Applying this interpretation to the present case requires at least the following calcula­tions.


First, given that the medically proper response to the indicated vital signs and ECG is immediate admittance to the nearest coronary care unit, we would have to compare the riskiness of the alternatives with respect to their relative distance from the original scene. Second, given that County General is closer, we would need to subtract from the benefits achieved by immediate admittance to County General those benefits that were lost by not admitting Smith to the hospital where his physician and records are located.

Third, we would then need to consider that Smith has demanded to be taken to Saint Mary's and to assess the effect that treating him contrary to this demand would have on his interests. With respect to his immediate objective interests, there is the above-mentioned possibility that it would aggravate his physical condition. With respect to his long-term interests, there is the risk that being admitted to a hospital where he is not comfortable will increase the length of a recovery period.

And with respect to his subjective interests, there is the fact that Smith repeats his demand, which suggests that he has some important (though not disclosed) interests that might be fulfilled only at Saint Mary's. And fourth, this "overall" interpretation has room for such personal or hedonistic considerations as the hospital's religious affiliation, nearness to family, and the accompaniment of wine with the meals.


I have not attempted to make the above calculations because just mentioning them should be enough to show that this third option is less tenable than the one it is intended to replace. One problem is that while it aims to provide the treatment that "really is best" for the patient overall, there is strong reason to doubt a paramedic's ability to make the necessary calculations, much less balance them together.

We may justifiably question, for example, how the paramedic would quantify the extra comfort that Smith would have at one hospital or the benefit that this would provide toward a speedy recovery. We should also ask about the scales that the paramedic would use both to calculate the risk that anger would aggravate Smith's heart problems and to balance this risk against that of transporting Smith to Saint Mary's. Similarly, it seems fair to ask how the paramedic could base the subjective or hedonistic judgments on anything other than his own interests and values.

A second and more important problem is that even if a paramedic were able to make the necessary calculations, it is not clear that he ought to do so when time itself is a critical factor. Taking the time to calculate which treatment alternative would really be best for the patient overall can preclude the possibility of successfully providing that treatment or, for that matter, the possibility of successfully providing any treatment. In other words, when time is of the essence, it may actually be in the patient's best interest for the paramedic not to try to determine which treatment would be in the patient's best interest.


Third, while this broader interpretation correctly recognizes that a patient's immediate objective interest in voiding serious harm and death need not be the only relevant interest, it loses sight of the earlier point that this interest is often fundamentally more important than the others. Since the protection of a patient's physical well-being is often a necessary condition for the fulfillment of his other interests, there should be a point at which the greater risk to one's immediate welfare cannot be compensated for by a higher probability of gain to one's other interests.

Modified Objective Interests


The above discussion suggests that in so far as we understand a paramedic's responsibility as one of "acting in the best interest of his patient," we need to restrict the scope of relevant interests in a way that lies between the extremes of expecting the paramedic to consider only the patient's immediate objective interest in escaping the present emergency unharmed and of expecting the paramedic to consider as many interests as possible.

More precisely, it suggests that the preferable account would lie closer to the (modified) narrow interpretation in that it would recognize the fundamental, but not sole, importance of the patient's interest in protecting his physical well-being, as well as the fact that critical decisions must be made in minimal time with minimal knowledge about the patient.

This might be done by understanding the paramedic's obligation as requiring him to give primary weight to the patient's immediate objective interests in avoiding significant harm and death, while allowing him to consider the patient's long-term interests, discernible subjective interests, and / or hedonistic consid­erations, only when each treatment alternative has a high probability of protecting the patient's physical well-being and neither is significantly less risky than the other.

APPLICATION TO THIS CASE


Applying this fourth account to the present case, the available information is not quite sufficient for a definite decision about whether Smith should be taken to County General or to Saint Mary's. It does, however, lean strongly toward the former. First, Smith's immediate interest in avoiding cardiac arrest is clearly the paramedic's primary concern. This implies that admittance to County General would be the preferable al­ternative in so far as it offers the best chance of avoiding (or successfully responding to) this threatened result.


Second, the high risk of cardiac arrest, together with the other information, indicates that the present case is not one in which additional interests are relevant. Thus third, even though the above interpretation denies that potential instability is the overriding factor in all cases, there is little reason to doubt that is the overriding factor here. Of course, were we to learn that Saint Mary's is just a few minutes farther away, that it has an acceptable coronary care unit, and that Smith's anger at being treated against his will is affecting his physical condition, the assessment may need to be changed.

But this problem can be set aside for now because a final decision as to which treatment is required by a paramedic's obligation to act in the best interest of his patient will be necessary only if it should turn out that this obligation overrides the other morally relevant considerations in the present case. And to determine this we need to turn to the second issue, namely, the potential conflict that arises between the values of protecting a patient's welfare and respecting his autonomy when he expresses a demand for treatment that is not in his best interest.

CONFLICT BETWEEN THE OBLIGATION TO PROTECT A PATIENT'S WELFARE AND RESPECT FOR HIS AUTONOMY


In the above discussion, that Smith demanded to be taken to Saint Mary's was assumed to be morally relevant only in so far as it helped determine which treatment alternative would be in Smith's best interest. The possibility that this demand carries independent moral weight, that perhaps it ought to be honored even if it is not in Smith's best interest, has thus far been ignored.

Yet this, I think, is the more urgent issue, for given that Smith's demand to be taken to Saint Mary's implicitly includes a demand not to be taken to County General and given that a competent patient's right of self-deter­mination includes the right to deny consent to the treatment that is in his best interest, the paramedic will not be justified in taking Smith to County General unless it can be shown either that Smith is not here exercising his right of self-determination or that there are grounds for suspending or modifying this right. In the remainder of this discussion, I will assume that admittance to County General would be in Smith's best interest and then discuss some of the general ways in which we might establish the permissibility of treating a patient in accordance with his best interest and contrary to his demand for a riskier alternative.


The general strategy is that unless one of the following arguments (Table) can defensibly be applied to the present case, the paramedic's obligation to act in the best interest of his patient will be overridden by his obligation to respect Smith's right of self-determination.

Table. Possible Arguments for Treating a Patient in Accordance with His Best Interests and Contrary to His Demand for a Riskier Alternative.

1. The patient exhibits overt signs of incompetence.

2. All persons who require assistance from paramedics are incompetent.

3. There are morally good reasons in favor of the practice in which paramedics are (temporar­ily) exempted from the obligation to respect a patient's right of self-determination.

4. The patient is not expressing a voluntary and informed decision.

5. The paramedic is justified in judging that the patient is not really exercising his right of self- determination.

Argument 1

One way to show that a paramedic is justified in treating a patient contrary to his demand is to establish that the patient is currently incompetent to make a voluntary and informed decision and thus unable to make a decision that carries independent moral weight. When this is the case, there is no independent obligation to honor the demand and thus no real conflict between the values of protecting the patient's welfare and respecting his autonomy.

But this approach will not work for the present case. The problem is that while it is no doubt true that many persons requiring the aid of a paramedic are at that time incompetent to make critical decisions about their own care, there is no solid basis for a finding that Smith is currently incompetent. After all, he is not in shock nor otherwise suffering from a severe accident.


Nor is he denying the chest pains, babbling incoherently, or offering illogical reasons for his decision. Instead, he is repeatedly calling for treatment which, though not optimal, is neither bizarre nor necessarily and seriously more harmful than the other alternative. (For contrast, imagine a case in which a patient with a severed arm demands to be taken to a veterinarian's clinic 120 miles away.) Furthermore, the bare fact that his demand is for nonoptimal treatment cannot be sufficient grounds for a judgment of incompetency without rendering the right of competent patients to reject medical treatment quite superfluous.

Argument 2

Lacking any specific and overt signs of incompetency, a second way to establish that a paramedic is justified in treating a patient contrary to his demand would be to establish the more general claim that no person who is in need of a paramedic could be competent to make a decision that meets the standards of informed consent.

The core idea of this approach is that if a person is in such dire straights that he needs a paramedic, he is certainly not in a position to be making critical decisions about his own care. For given the stress and fear (the explanation continues) that must accompany an emergency situation, how could he have the clarity of mind to comprehend the various alternatives and then decide that he is willing to accept the greater risks associated with the nonoptimal treatment?


Were this general claim correct — were it true that no decision made under cir­cumstances requiring a paramedic could meet the standards of informed consent, re­gardless of Smith's outward appearance of competence — there would be no obligation to honor his demand. But surely it is false. Given both the diversity of persons and the types of emergencies that can occur, it is implausible to think that there is not one person who would be competent to assess his alternatives and withhold consent from the treatment that is in his best interest.

Furthermore, were we to accept the claim that the stress and urgency of a situation, or even the knowledge that one's welfare is in danger, (always) renders a person (temporarily) incompetent, we would face a number of untenable implications for matters both inside and beyond the scope of emergency medicine. It would imply that if a Jehovah's Witness is in need of a blood transfusion, he is unable to make a binding decision to reject that transfusion.

It would also imply that some of our "heroes," those who risked their lives to save others, do not deserve that status because the dangerous circumstances rendered them incompetent and their acts less than voluntary. And it might even provide criminals with the excuse that they do not deserve (full) punishment because they were incompetent at the time of the crime.

Argument 3

A third and more plausible way to show that a paramedic is justified in treating a patient contrary to his demand would be to establish the claim that even if the patient is competent, the standardly overriding obligation to respect the voluntary and informed decision of a competent patient is suspended in situations requiring aid of a paramedic.


As the basis for defense of this claim, one might rely on (a) the fact that the practice of paramedics must be governed by a set of general rules or policies, together with (b) the difficulty in determining whether, within the time constraints posed by an emergency situation, any given patient is making a voluntary and informed decision for nonoptimal treatment. In other words, one might argue as follows:

Even though there are some persons who, while in need of a paramedic, are competent to make an autonomous decision for nonoptimal care, the special features of emergency situations (for example, time constraints and unfamiliarity with the patient) exaggerate the difficulty of distinguishing these patients from those who merely appear to be exercising their right of self-determination.

When we view this difficulty in light of the types and gravity of mistakes that derive from incorrect judgments about a patient's competence (or consent), we find ourselves choosing between the following two options. First, we could adopt a practice in which par­amedics are expected to assess a patient's competence (consent) and then honor the demands of those patients who are judged to be exercising their right of self-deter­mination. The relevant consequence here is that some persons will be incorrectly judged to be competent and thus be given treatment which is neither in their best interest nor in accordance with their autonomous decision.

Second, we could adopt a practice in which para-medics are directed to proceed as if no patient were competent to be making a critical decision about his own care. The relevant consequence here is that some actually competent persons will be treated contrary to their voluntary and informed decision for a riskier alternative. But since these patients will be given the treatment that is in their best interest, we see that this second option is the lesser of two evils and thus is the policy that ought to be adopted.

In short, this third approach entails that Smith's demand may be justifiably ignored not because Smith shows clear signs of incompetence, nor because no one in need of a paramedic is competent to deny consent to the treatment that is in his best interest. Rather, it is because there are morally good reasons in favor of a practice in which paramedics are exempted from the standardly over­riding obligation to respect a patient's right of self-determination.


This approach has at least two points in its favor. First, it does not deny that there are cases in which the paramedic's obligation to act in the best interest of his patient conflicts with the general obligation to respect a person's right of self-determination. It only says that the difficulty in determining which cases these are, together with the undesirable consequences of a mistaken judgment, justifies the paramedic in assuming that there is no such conflict in any given case.

Second, since the paramedic is not required to determine a patient's competence (or consent), he is free to concentrate solely on providing the best possible treatment for the patient. Even before arriving at the scene the paramedic knows that a patient's statements are relevant only if they aid in the assessment of the patient's best interest.

But in spite of the benefits, the above argument — that the risk of mistake justifies the paramedic in proceeding as if no patient were competent to withhold consent from the optimal treatment — is open to serious criticism. First, it may actually do more harm than good to the end it hopes to achieve. While the aim is to preclude the risk that some patients will not receive the treatment they need, the knowledge that one's right of self-determination is suspended upon the arrival of a paramedic may inhibit persons from seeking a paramedic's aid at all.

They may try to get to the hospital themselves or ask a friend for help rather than risk being treated against their will. Second, the implication that a patient's right of self-determination is suspended in every case re­quiring a paramedic is highly suspect in light of the fact that competent persons have a right to reject lifesaving treatment within a hospital, as well as a right to refuse to go to a hospital or even call a paramedic. It suggests a picture in which the right of self- determination somehow vanishes when an emergency occurs (or even when another person prematurely calls a paramedic) but then reappears once the paramedic's work is finished.

Furthermore, while the risk and gravity of mistakenly judging a patient to be consenting to treatment that is not in his best interest is, no doubt, an important consideration, it does not follow from this that we ought to remove the risk through a blanket suspension of the right to guide one's own care. Instead, the better approach would seem to be one in which rules or safeguards are developed (a) to compensate for the fact that judgments about competence and consent must be made in minimal time and with minimal background knowledge about the patient, while (b) the interests of those who are unable to make or express autonomous decisions about their own care are still protected.


As examples of such safeguards, we might begin with standard presumptions in favor of competence and the overriding right of self-determination and then reduce the risk that a patient would mistakenly receive a treatment that is neither in his best interest nor in accordance with his autonomous decision, by placing the margin of error on the side of protecting the patient's best interest.

We might then require that as the degree of risk between the demanded treatment and the treatment that is in the patient's best interest increases, so does the required level of certainty that the patient is con­senting to the riskier alternative. Similarly, we might require that the strength of the reasons needed to override the presumption in favor of competence decreases as the comparative risk of the demanded treatment increases. Such safeguards would allow some competent persons to be incorrectly judged incompetent.

But they would also entail that paramedics have an obligation to respect the informed decisions of those patients who do not fall within this category. And in light of that, they would create a balance between the general and conflicting values of protecting a person's welfare and respecting personal autonomy.

It is beyond the scope of this discussion to examine the specific safeguards that might be employed in emergency medicine. The main point here is that the risk of mistakenly judging a patient to be competent is not a sufficient justification for com­pletely exempting paramedics from the general obligation to respect a person's right of self-determination. And this shows that the above third approach is not a sufficient justification for disregarding Smith's demand to be taken to Saint Mary's. It also suggests that if such a justification is to be found, it will rest, somehow, on a claim that Smith is not really exercising his right to deny consent to treatment at County General.

Argument 4

More precisely, the above discussion implies that since a patient's right to accept or reject medical treatment — independent of whether that treatment is in his best interest — is not suspended in situations requiring the aid of a paramedic, then in cases in which there are no grounds for judging the patient to be incompetent, the permis­sibility of treating that patient in accordance with his best interest and contrary to his demand for a riskier alternative rests on whether the paramedics are justified in judging that the patient is not exercising his right of self-determination.

This suggests that a fourth way to establish the permissibility of disregarding a patient's demand is to show that the current demand is not morally binding because it does not fulfill the standards of informed consent. One might try to prove, for example, that the patient lacked some crucial information or that he failed to comprehend the relevant risks, thus indicating that his demand for a given treatment was neither an autonomous decision for that treatment nor a denial of consent to the treatment that is in his best interest.

With respect to the present case, this fourth approach seems more promising than the earlier three. There is no need to show that Smith is incompetent, nor to deny that the paramedic's obligation to act in the best interest of his patient is sometimes over­ridden by his obligation to respect a patient's right of self-determination. Still, it is unlikely that it provides a sufficient justification for taking Smith to County General because the information in the present case offers, at best, a weak basis for establishing that Smith's demand falls short of informed consent.

The initially plausible grounds seem to be either that Smith was not aware of the extra risk associated with transportation to Saint Mary's or that he failed to appreciate that he might die from cardiac arrest. But these grounds become implausible in light of such facts as Smith's previous expe­rience with heart surgery, the reasons behind his demand, and the repetition of his demand. Moreover, the paramedics apparently had the opportunity to speak with Smith about his condition, the alternatives, and the risks, and any uncertainty about his consent could have been clarified.


In defense of this fourth approach, one might object that the opportunity to speak with Smith was irrelevant because the paramedics still could not have been certain that Smith "fully understood" the risks or that he "really wanted" to be taken to Saint Mary's.

More generally, one might first make the claim that paramedics will often be uncertain as to whether a patient actually comprehends the relevant risks and alternatives and then argue that in such cases the paramedics should not act on the patient's demand if it is not in his interest to do so. Yet even if this claim is correct, it cannot be used as a justification for treating a patient contrary to his demand without first distinguishing two sources of a paramedic's uncertainty.

On the one hand, the uncertainty might be the sort that can exist in any case, regardless of the evidence, reasons, and / or discussions that occurred. It might derive from the paramedic's belief that he would choose a different treatment, were the situation reversed, or from a general skepticism about the likelihood that a person who fully comprehends the relevant risks would autonomously choose a treatment that is not in his best interest.

If this is the sort of uncertainty in question, one that is not based on any specific features of the case beyond the fact that the demand was for nonoptimal treatment, it cannot be allowed as an adequate justification for disregarding a patient's demand. To do so would return us to the problems of the earlier alternatives, including the fact that a person's right to reject medical treatment would now be superfluous because any decision for nonoptimal treatment could be overridden by a charge of this sort of uncertainty.


On the other hand, if a paramedic's uncertainty as to whether a patient is making an autonomous decision derives from specific features of the case, it may provide grounds for justifiably disregarding the demand. Suppose, for example, that discussions with a patient expose inconclusive or mildly conflicting evidence about the patient's compre­hension of the risks. Though this evidence may not be enough to prove that the patient's demand fell short of informed consent, it could justify the paramedic in judging that it does.

This is so, since once we have granted the need for safeguards, especially ones entailing that the margin of error should protect the patient's interests and that the requisite level of certainty should increase in accordance with the relative risk of the demanded treatment, it follows that a paramedic can be justified in judging that a patient is not exercising his right of self-determination when the evidence places the decision within the "borderline" or "gray area."

Argument 5

In short, the above objection does not vindicate the fourth approach because the morally important sort of uncertainty is not strong enough to prove that the patient was, in fact, not expressing a voluntary and informed decision. It has, however, suggested one final ground: A paramedic is justified in treating a patient contrary to his demand when the paramedic is justified in judging that the patient is not exercising his right of self-determination. The key and benefit of this more lenient fifth approach is that the paramedic's justification can derive as much from facts about the patient and his demand, as from a combination of the basic circumstances of the case and the relevant safeguards.

As mentioned above, it can derive from conflicting evidence about the patient's com­prehension of the relevant risks. It can also derive from circumstances which effectively prevent the paramedic from both (a) determining that the patient is exercising his right of self-determination and (b) acting on the obligation to respect that right. I have in mind the following sort of case.

Suppose that the patient demands treatment X which poses 30% greater risk of death than treatment Y. (Perhaps one hospital is 30% farther away than the other.) Also suppose that the circumstances are such that taking the time to determine whether the patient is making a voluntary and informed decision for X (and denying consent to Y) would have the effect of increasing the patient's risk of death to 60%. (Perhaps the hospitals are in opposite directions, such that the paramedic must choose between protecting the patient's interests and honoring his demand before he can start any treatment.)


In such a case there is no way for the paramedic both to determine that the patient is exercising his right of self-determination and to provide the demanded treat­ment — because in the course of assessing whether the patient has made an autonomous decision for a 30% riskier treatment, the possibility of providing that treatment has been removed. In its place is now an option to provide a similar treatment with a 60% greater risk. But since the patient has not demanded nor consented to a 60% riskier alternative, a new assessment of consent would have to be made. This, of course, would take more time, which in turn would increase the comparative risk to, say, 90%. And so on.

In such a case, the paramedic's justification for assuming that the patient is not exercising his right of self-determination derives from (a) safeguards which place the margin of error on the side of protecting the patient's interests and (b) circumstances which make an assessment of the patient's consent rather pointless. And even if the paramedic were to determine that the patient was making a voluntary and informed decision for a riskier treatment, he would not then be able to provide that treatment.

Applying the fifth approach to the present case, it seems that the given information is not sufficient to determine whether this approach provides a justification for taking Smith to County General: We have no record of discussions with Smith, nor information about, for example, the location of the hospitals and comparative risk of the alternatives.

Still, the fact that Smith has not wavered in his demand, nor (apparently) given signs that he did not comprehend the greater risk of transportation to Saint Mary's, together with the fact that the fifth approach relies on rather precise and uncommon circum­stances, suggests that it will most likely not provide grounds for treating Smith contrary to his demand.

CONCLUSIONS


In conclusion, the fourth and fifth approaches are more plausible than the other three. But they still offer only slim possibilities for justifiably treating Smith in accord­ance with his best interest and contrary to his demand to be taken to Saint Mary's. In order for either to be successful, additional information would need to be provided which shows that, contrary to appearances, there are grounds for judging that Smith was not exercising his right of self-determination.

And in the absence of such information, we have to conclude, I think, that while it would be in Smith's best interest to be taken to County General, the paramedic's responsibility to provide this treatment is overridden by his obligation to respect Smith's right of self-determination.

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