Unilateral Withdrawal, Technological Creep, and the Role of Proportionality in ECMO Policy

There is a well-known American legal maxim, hard cases make bad law. If we agree that Mr. J’s case is hard, what lessons follow from the application of current ECMO guidelines and what kind of support should clinicians expect from practice guidelines to start? The two conclusions of the paper, that unilateral withdrawal of life-sustaining therapy (WLST) is not justified by current ethical constructs, and, accordingly, that it may be possible to justify ECMO as a form of destination therapy poses significant considerations. Our primary concern is that the author’s reasonable conclusion that there is no ethically justification for the WLST of Mr. J against his wishes, becomes, by extension, an argument against policy contraindicating intentional destination ECMO (ECMO-DT). In other words, we believe that the ethical guidelines can and should both a) support the discouragement/prohibition in the principle of ECMO-DT while at the same time b) allowing clinicians/fiduciaries the autonomy to offer conscientious care to those stranded en route to an intended destination. Consultations regarding the unilateral withdrawal of life-sustaining treatment are difficult at the best of times. The author of this paper has proposed a clinical scenario that successfully seems to successfully resist the appeal of any single ethical principle to justify the clinical team’s intention to unilaterally withdraw Mr. J. from his ECMO circuit (or otherwise withhold) against his expressed wishes. If the author’s argument is indeed successful, relevant questions arise: what are the implications of lack of principled justification to other similar cases? What are the implications to the various justifications of unilateral WLST in general? As in jurisprudence, should canonically difficult clinical cases inform and define overarching legislation, or should clinical guidelines serve an entirely different function, supporting broader clinical/ethical goals? We would like to suggest a clinical example from outside critical care to demonstrate how the combination of potentially burdensome technology applied beyond its intended scope can result in significant iatrogenic harm, and how the subsequent role of effective guidelines mitigated harmful practice. In North America in the early 2000s, dysphagic patients with diagnoses of advanced dementia were much more likely than now to receive percutaneous endoscopic gastronomy tubes. At the time, it was assumed that percutaneous endoscopic gastrostomy (PEG) might prevent aspiration pneumonia and assure caloric intake in these frail, often elderly patients. The use of PEG tubes in the dementia population is an example of medical technology or function creep (Koops 2021), defined simply as the expansion of a technology beyond its intended purposes. Of course, the novel use of existing technology is not inherently inappropriate. However, the promulgation of PEG tubes in advanced dementia patients had little evidence to support the theoretical benefit but bestowed a host of iatrogenic burdens. These included the device failing to fulfill its intended purpose to prevent aspiration and a handful of unforeseen harms including the proliferation of chemical and physical restraints after attempted unplanned self-directed extubations, and a significantly lower quality of life, and a failure to prolong life.