For the past two decades, much of the medical, ethical, and legal discussion about death and dying has focused on the right of individuals to reject treatments that only prolong the dying process. Yet if the volume of literature devoted to medical futility in recent years is any indicator, a significant number of individuals are now clamoring for the very treatments that others fought to reject.

Much of this discussion concerning medical futility comes from a medical or philosophical perspective. On the few occasions that the judicial system has addressed the subject of medical futility, it has applied the law unevenly and often without much reflection about the consequences of its rulings, leaving clinicians and patients with little guidance. Statutes that address medical futility directly are fewer still and have proved ineffective at resolving the hypothetical and real problems that the futility debate creates for clinicians and patients across the country.

In this chapter, we survey the legislation and court decisions that have specifically addressed the issues of medical futility and explore whether the established right to refuse treatment can inform the futility debate and the right to receive treatment, or whether a new set of laws and legal principles is needed.

The emergence of the futility problem

A consensus on what constitutes futile treatment remains elusive. However, conflicts over medical futility are beginning to surface as a new type of end-of-life decision-making case.