Beyond medical futility: a proposed taxonomy ofultra vires acts in medicine

Abstract

When is a physician’s act non-medical, and how might such non-medical acts be classified? One approach, analogous to the substantive due process inquiry employed by American courts weighing the constitutionality of legislative acts, would involve consideration of the following questions: 1) Is a legitimate medical goal being pursued? 2) Are the means being employed legitimately medical? 3) Are the goals and means appropriately related? Accordingly, a physician acts medically when employing legitimate and appropriate medical means in pursuit of a legitimate medical goal. In contrast, when the goals pursued or means employed are not legitimately medical, or when the two are not appropriately related, the act ismedically ultra vires (“beyond the powers”)—that is, an act beyond the physician’s power or authority—and consequently non-medical.Medically ultra vires acts may be further sub-classified depending upon which prong of the above trident is defective. Where the goal of the act, though achievable, is not legitimately medical, the act ismedically ultra vires because of goal illegitimacy, ormedically ultra fines (“beyond the ends”). Where the means employed are not legitimately medical, the act ismedically ultra vires because of means illegitimacy, ormedically ultra modos (“beyond the means”). Where the means and goals are not appropriately related, the act ismedically ultra vires because of means-goals disjunction, ormedically ultra nexus (“beyond the connection”). Medical futility (where the medical goal in question, albeit legitimate, cannot be achieved by the act under consideration) represents the paradigmatic example of the latter.