Medical Futility Blog

MAID Lawsuit in South Africa

noreply@blogger.com (Thaddeus Mason Pope, JD, PhD, HEC-C) — Fri, 10 Apr 2026 05:21:00 +0000

I am delighted to play a small part in this lawsuit just filed in the High Court in Pretoria. This action seeks to decriminalize and legalize medical assistance in dying in South Africa.

The core application requests the court to declare the existing common-law prohibition of assisted dying unconstitutional and invalid, paving the way for a significant shift in the nation’s approach to end-of-life care.

U.S. MAID: Pioneer Stuck in the Past

noreply@blogger.com (Thaddeus Mason Pope, JD, PhD, HEC-C) — Fri, 10 Apr 2026 05:10:00 +0000

I have been attending ICEL5 meetings on medical aid in dying since Tuesday. Countries from around the world are are sharing their approaches to eligibility and regulation.

Unfortunately, few here judge that they have anything to learn from the United States. Yes, it was a pioneer in 1994. But it has not innovated in the way that almost every other MAID jurisdiction has. Eliana Close suggests that the United States get with the times."

Default Surrogates - When May Hospitals Designate Them?

noreply@blogger.com (Thaddeus Mason Pope, JD, PhD, HEC-C) — Wed, 08 Apr 2026 18:23:00 +0000

A case pending before the U.S. Court of Appeals for the Fifth Circuit and the Supreme Court of Mississippi could have major implications for how hospitals designate default surrogates, the most common type of substitute decision maker for incapacitated patient.

When Mark Stanford was admitted to a nursing home, his brother signed the admissions paperwork as his surrogate. Stanford was later injured in a fire. When the family filed a lawsuit against the nursing home, it moved to enforce the arbitration agreement. The family alleged the agreement was invalid because Stanford’s brother did not have authority to sign it. Because Stanford’s son (a higher priority surrogate) was available, his brother lacked authority. The U.S. District Court for the Southern District of Mississippi agreed.

On appeal the parties dispute whether healthcare providers must take affirmative steps to ensure that no higher priority individual is reasonably available. Must they search and eliminate the availability of higher-class surrogates (e.g., a son) before recognizing the authority of a lower-class surrogate (e.g., a brother)? The U.S. Court of Appeals certified this question to the Mississippi Supreme Court which has not yet ruled.

Because Mississippi adopted the Uniform Health Care Decisions Act, this case could have significant nationwide implications for how default surrogates may be recognized.

Delaware Court Refuses to Override Patient Advance Directive

noreply@blogger.com (Thaddeus Mason Pope, JD, PhD, HEC-C) — Tue, 07 Apr 2026 20:03:00 +0000

J.L.S. was an 86-year-old individual residing at a hospital facility. The Delaware Chancery Court denied J.L.S.’s guardian’s petition to change his code status based on J.L.S.'s deteriorating condition.

The physicians’ testimony regarding prognosis, tracheostomy, PEG placement, and likely outcomes underscored the gravity of the medical circumstances. But the Court held that the neither a guardian nor the court can disregard valid health-care instructions solely because of a worsened prognosis.

The Emergency Petition sought authority for the Guardian to direct withdrawal of mechanical ventilation and to direct that J.L.S. not be reintubated in the event he could not breathe independently. But that relief would have required the court to authorize an action inconsistent with J.L.S.’s recorded full code instruction.

Medical Futility & Surrogate Decision Making at ICCEC 2026

noreply@blogger.com (Thaddeus Mason Pope, JD, PhD, HEC-C) — Mon, 06 Apr 2026 05:30:00 +0000

Here are some of the sessions at ICCEC 2026 that focus on medical futility, surrogate decision making, supported decision making, code status, conscientious objection, and related issues.

Missing Policies and Unbalanced Ethics Committees Threaten Fairness in Potentially Inappropriate Treatment Decisions

Bridging Ingroup/Outgroup Divides in Requests for Nonbeneficial Treatment: Rethinking Best Practices in Clinical Ethics Consultation

Ethical Considerations and Multidisciplinary Perspectives: A Panel Discussion on the Provision and Discontinuation of ECMO Therapy

Supporting Supported Decision-Making (SDM): The Need to Educate Patients, Supporters, and Clinicians

Surrogate Decision-Makers as Quasi-Patients: Resolving the Capacity Question

A Defense and Application of Secular Institutional Conscientious Objection

Rethinking Advance Healthcare Planning: Concise, Precise and Patient-Centered

Preventing Unintended Resuscitation of DNR Patients: A Multidisciplinary Quality Improvement Initiative

MAID / Death with Dignity in Oregon - 2025 Report

noreply@blogger.com (Thaddeus Mason Pope, JD, PhD, HEC-C) — Sun, 05 Apr 2026 05:30:00 +0000

The Oregon Health Authority has published its latest report on medical aid in dying.

During 2025, 637 people received prescriptions for lethal doses of medications, compared to 609 reported in 2024. 37 prescription recipients (6%) lived outside Oregon.

Since the law was passed in 1997, a total of 5,520 people received prescriptions and 3,691 people (67%) died from ingesting the medications.

Euthanasia Advance Requests Avoid Premature Dying

noreply@blogger.com (Thaddeus Mason Pope, JD, PhD, HEC-C) — Sat, 04 Apr 2026 05:30:00 +0000

Lode Deconinck claimed that he was made to "say goodbye too soon." His dementia qualified him for euthanasia in Belgium. But to qualify, Deconinck needed decision-making capacity at the time. This meant that he had to end his life earlier than he wanted. Now, Deconinck's case is being used to make the case for advance requests.

Under such a scheme (already available in Spain, Quebec, and the Netherlands), Deconinck could specify future circumstances under which he should receive euthanasia - even if he could not provide consent at that time.

The worldwide push for advance requests is one of the hottest issues at next week's International Conference on Assisted Dying and Other End of Life Care (ICEL5)

Hospices Where Nobody Dies

noreply@blogger.com (Thaddeus Mason Pope, JD, PhD, HEC-C) — Fri, 03 Apr 2026 05:30:00 +0000

The FBI has arrested Gladwin and Amelou Gill, the owners of 626 Hospice, which does business as St. Francis Palliative Care. The hospice's survival rate is more than 97% after five years.

A high survival rate at a hospice provider is one of a series of red flags for fraud because most people enter hospice care in the final stages of a terminal illness. The Gills are not alone. More than 700 of the nearly 1,800 hospice facilities in Los Angeles County have three or more flags indicating fraud.

From Bedside to the Courtroom: Managing Objections to Brain Death Determination (video)

noreply@blogger.com (Thaddeus Mason Pope, JD, PhD, HEC-C) — Thu, 02 Apr 2026 05:30:00 +0000

Here is the video from our recent webinar From Bedside to the Courtroom: Managing Objections to Brain Death Determination.

In this session of the Pediatric Neurocritical Care Education Series, Matthew Kirschen from Children’s Hospital of Philadelphia moderates a case-based panel discussion focusing on social, ethical, medical, and legal objections to brain death determination.

Compassion Legal - End-of-Life Justice Center at Compassion & Choices

noreply@blogger.com (Thaddeus Mason Pope, JD, PhD, HEC-C) — Wed, 01 Apr 2026 05:30:00 +0000

Everyone deserves to face life’s final chapter with dignity, clarity and control. Compassion Legal—the End-of-Life Justice Center at Compassion & Choices—is the nation’s first nonprofit law firm solely dedicated to advancing patient rights at the end of life.

If you or someone you love is struggling to get the care you want and deserve, Compassion Legal can help. Whether you are navigating your own care, advocating for someone you love, or seeking to shape the future of healthcare, Compassion Legal can help. They advocate for your right to quality care at the end of life.

They are a team of expert staff attorneys and pro bono partners who work at the intersection of law, medicine, and patient-directed care. From medical aid in dying and advance care directives to healthcare refusals and systemic accountability, they ensure that your decisions are honored and your values respected.

Delaware Publishes MAID / EOLOA Regulations

noreply@blogger.com (Thaddeus Mason Pope, JD, PhD, HEC-C) — Tue, 31 Mar 2026 05:30:00 +0000

Delaware's Silverio/Heather Block End-of-Life Options Act went into effect on January 1, 2026. But the Department of Health and Social Services just published its final regulations.

Included in these regulations are the forms that clinicians must complete and file. These are also collected on a new state website.

Texas Advance Directives Act - Rarely Used to Resolve NBT/PIT Medical Futility Conflicts

noreply@blogger.com (Thaddeus Mason Pope, JD, PhD, HEC-C) — Mon, 30 Mar 2026 05:30:00 +0000

For the past few years, Texas began formally collecting and reporting hospital use of the dispute resolution provisions in the Texas Advance Directives Act. But these reports, like the most recent one from April 2026, show that almost no hospitals are using this process.

These disputes are surely just as common as ever. What are the possible explanations? Here are four.

Informal Resolution. Hospitals are informally resolving these conflicts with better communication, negotiation, and mediation. Substantial evidence shows 95% of conflicts can be resolved this way - with tools like ethics consults, time limited trials.
Surrogate Surrender. Surrogates cave-in to the hospital, because they know the hospital ultimately has TADA and withholding or withdrawal is a fait accompli.
Clinician Surrender. Clinicians cave-in to surrogates. Even though the law supports unilateral withholding or withdrawal, the process is cumbersome and still creates bad PR for the hospital.
Reporting Noncompliance. Hospitals are not submitting the required reporting or not submitting it accurately.

Right to Die: The Barbara Mancini Story

noreply@blogger.com (Thaddeus Mason Pope, JD, PhD, HEC-C) — Sun, 29 Mar 2026 05:30:00 +0000

A new short documentary film shows how Barbara Mancini fought to honor the end-of-life treatment wishes of both her father and mother. Unfortunately, despite being an experienced nurse, Barbara was unable to prevent clinicians from violating her parents' wishes.

Fortunately, courts have become more receptive to unwanted medical treatment claims.

Are Dementia VSED Advance Directives Ethical? Should Clinicians Honor Them?

noreply@blogger.com (Thaddeus Mason Pope, JD, PhD, HEC-C) — Sat, 28 Mar 2026 05:30:00 +0000

The 2026 annual meeting of the American Geriatrics Society (AGS) is quickly approaching. The AGS Annual Scientific Meeting is set for April 30 through May 2. Today, Guideline Central showcases some of the sessions that primary care providers will not want to miss, as they are directly related to the conference’s clinical practice track.

One of these is my "Point-Counterpoint: Are Dementia VSED Advance Directives Ethical, And Should Clinicians Honor Them?"

In this point–counterpoint session, two experts will debate whether dementia-specific VSED advance directives are ethically justifiable and whether physicians and interdisciplinary teams should assist in drafting, interpreting, and operationalizing them in clinical and long-term care settings.

Status of MAID in the United States (video)

noreply@blogger.com (Thaddeus Mason Pope, JD, PhD, HEC-C) — Sat, 28 Mar 2026 01:33:00 +0000

PBS Newshour just ran a story about medical aid in dying (MAID). It focuses on Dr. Charles Blanke and one of his cancer patients. Blanke is one of the most prolific MAID clinicians in the United States, writing between 100 and 150 prescriptions a year.

Unresponsiveness Is Not Unconsciousness

noreply@blogger.com (Thaddeus Mason Pope, JD, PhD, HEC-C) — Fri, 27 Mar 2026 05:30:00 +0000

This recent article in JAMA cautions us to carefully distinguish unresponsiveness from unconsciousness.

"Covert consciousness, the enduring capacity for subjective experience even when all behavioral signs have ceased, challenges controlled donation. If a patient who appears insensate is in fact conscious despite being unable to move or communicate, the likelihood is increased that care decisions will rest on the mistaken presumption that the patient has permanently lost consciousness or the potential to recover it."

"The implications of covert consciousness extend to WLST decisions more broadly, sharpening the need for diagnostic and prognostic humility, clear communication of uncertainty, and neurologically informed safeguards."

Brain Death - Contested by Clinicians Too, Not Just by Families

noreply@blogger.com (Thaddeus Mason Pope, JD, PhD, HEC-C) — Thu, 26 Mar 2026 05:30:00 +0000

Most of the literature on brain death contestation focuses on contestation by the patient's family. But other clinicians also contest brain death determinations.

A new study measures "Neurocritical Care Experience and Attitudes Related to Organ Donation in the USA." One finding is that "Half of the respondents who had completed a BD/DNC evaluation had been approached by a clinician providing pre-donation treatment who had concerns about the accuracy of a declaration made by other clinicians."

Conversations in Ethics: Dead Donor Rule Disregarded: Four Pervasive Derelictions (Brain Death, DCD, NRP, and PMI)

noreply@blogger.com (Thaddeus Mason Pope, JD, PhD, HEC-C) — Wed, 25 Mar 2026 11:49:00 +0000

Later this morning, I will present "Conversations in Ethics: Dead Donor Rule Disregarded: Four Pervasive Derelictions (Brain Death, DCD, NRP, and PMI)" at Baptist Health South Florida.

Here is one key slide from the 600 that I am using. If you are not sure whether the patient is dead, then they are not dead. Both law and ethics require that uncertainty must be resolved in favor of life.

Latest Research on Medical Law

noreply@blogger.com (Thaddeus Mason Pope, JD, PhD, HEC-C) — Wed, 25 Mar 2026 05:30:00 +0000

Some of my newest articles are included in SSRN's summary of "The Latest Research on Medical Law." And there are other good articles too.

Thaddeus Mason Pope, Expand Right to Die Options for Older Americans: Eleven Ways to Avoid Late-Stage Dementia, in Law, Health Care, and the Aging Brain and Body (I. Glenn Cohen, Francis X. Shen, Nina Kohn, Susannah Baruch eds. Cambridge University Press forthcoming 2027). PDF

Thaddeus Mason Pope, Unwanted Medical Treatment Harms Patients: Taxonomy of Healthcare Consent Infractions, 59 University of Illinois Chicago Law Review (forthcoming 2026). PDF

Thaddeus Mason Pope et al., New VSED Advance Directive: Improved Documentation to Avoid Late-Stage Dementia, 53 Journal of Law, Medicine, and Ethics 491 (2025). PDF

Brain Death & Unrepresented Patients - Professor Pope at SCCM

noreply@blogger.com (Thaddeus Mason Pope, JD, PhD, HEC-C) — Wed, 25 Mar 2026 00:36:00 +0000

Here's a new record for me. I attended multiple days of a major professional society conference (SCCM) without using a single slide. Not one. Contrast that to the usual 1200.

First, in this session below, we had multiple tables discuss and vote on how to approach care for an unrepresented patient. We then debriefed each case. This was an unusually high level of interactivity. And it proved valuable and enjoyable.

Second, I moderated a roundtable where critical care clinicians shared challenges that they have faced with determination of death by neurologic criteria (brain death). Some clinicians explained why they deviate from AAN guidelines and make determinations in ways they judge superior. Others explained how their risk averse hospital prohibits BD/DNC testing if the family opposes even though nothing in state law demands that.

Nurses End Patient Lives Every Day

noreply@blogger.com (Thaddeus Mason Pope, JD, PhD, HEC-C) — Tue, 24 Mar 2026 05:30:00 +0000

A recent nursing journal article focuses on the ethics of NRP. But I love this quote from a nurse that places matters into a broader context:

“I mean, where else is it ok to end someone’s life? I mean, nowhere really. It’s not ok, is it? But in a hospital… that’s something we do all the time. We are always ending… killing people."

"I know I say it like that, but like, I know it, it sounds shocking, but that’s what we do, you know? We decide to turn off the machines. We decide to stop the medication. And it’s all decisions that we make, and what it really comes down to is ending people’s lives."

"I just think that outside of a hospital, I can’t really think of many situations where that’s normal and accepted and an everyday thing to do. But in a hospital… everyday… we are ending people’s lives… and I think that people… I dunno… it’s just weird—if you think about it… if you really think about it. But you can’t really, can you? You have to have your hospital head on, not your normal person head on, which would be horrified”

VSED Awareness for Those Unable to Use MAID

noreply@blogger.com (Thaddeus Mason Pope, JD, PhD, HEC-C) — Mon, 23 Mar 2026 05:30:00 +0000

I generally publish and present on VSED in narrower academic and scholarly venues. So, I was unusually pleased with the big reach of this recent Hemlock Society presentation and a recent VHA presentation.

In contrast to my more specialized work for professionals, Kate Christie and Nancy Simmers are raising awareness on a much wider scale. This recent article nicely summarizes some of their work. And it nicely explains the advantage of VSED in the context of dementia: "it takes years of slow suffering and compresses it into 10 days."

VSED remains important for at least three reasons:

1. Many patients live where MAID is unavailable.

2. Even patients living in one of the 14 jurisdictions that have authorized MAID are often ineligible (e.g. patients with dementia).

3. Even eligible patients living in one of the 14 jurisdictions that have authorized MAID have difficulty accessing it.

Kate Christie & her mother

Hospice Use Grows

noreply@blogger.com (Thaddeus Mason Pope, JD, PhD, HEC-C) — Sun, 22 Mar 2026 06:00:00 +0000

For the first time, a majority of Medicare decedents (53%) now use hospice. The National Alliance for Care at Home reports that in 2024, 1.91 million Medicare beneficiaries were enrolled in hospice care for one or more days, representing a 4.4% increase from 2023.

Japan Revising Guidelines on End-of-Life Care

noreply@blogger.com (Thaddeus Mason Pope, JD, PhD, HEC-C) — Sat, 21 Mar 2026 05:30:00 +0000

The Japanese Society of Intensive Care Medicine, Japanese Association for Emergency Medicine, Japanese Circulation Society, and Japanese Society for Palliative Medicine have proposed new guidelines for determining when to end life-sustaining treatment for patients.

Comments on Joint Guidelines of Four Societies Regarding the Termination/Withholding of Life-Supporting Treatment in Emergency and Intensive Care are open until March 27, 2026.

Since the establishment of the current guidelines, advances in medical technology have enabled the support of seriously ill patients. But there have been instances where this support does not align with patients' preferences. The proposed new guidelines focus on procedures for deciding whether to continue treatment after discussions with patients and their families.

The Controversial Case of Jahi McMath (book)

noreply@blogger.com (Thaddeus Mason Pope, JD, PhD, HEC-C) — Sat, 21 Mar 2026 00:55:25 +0000

Neurologist Calixto Machado has just published The Controversial Case of Jahi McMath: The Reality of a Suspected Brain-Dead Patient

When thirteen-year-old Jahi McMath was declared brain dead, a neurologist discovered signs that contradicted the diagnosis. She was in a new state of consciousness, revealing that our medical categories are incomplete and challenging the line between life and death.

What if the most controversial “brain-dead” case of our time revealed that medicine has not yet reached the limits of consciousness?

When thirteen-year-old Jahi McMath was declared brain dead, her story ignited an international debate. The headlines focused on conflict and controversy—but behind them lay a more profound truth. As the first neurologist to study her brain, the author discovered signs that contradicted the accepted diagnosis. Jahi was not brain-dead. She was in a state no one had yet described, what the author came to call Responsive Awake Syndrome.

For more than a decade, these findings were dismissed, ignored, or met with skepticism. Only after years of persistence did the medical community begin to recognize what Jahi’s case had already revealed: that our categories of consciousness are incomplete, and that medicine has not yet reached the limits of the human brain.

This book is both a scientific exploration and a personal testimony. It tells the story of a young girl who became a symbol, and of a physician who, guided by evidence and by conscience, stood in the eye of the storm.

Jahi McMath’s journey compels us to reconsider the boundaries between life and death, to question long-accepted dogmas, and to embrace the humility required when science confronts the mysteries of consciousness.