In an new editorial in Critical Care Medicine [38(8): 1742-43], Randall Curtis and Robert Burt argue that we should not abandon the ideal of shared decision-making for even the tough futility conflicts. They argue that when there is "persistent disagreement with families" that simply "requires even more persistent efforts to find a mutually acceptable resolution." After all, they argue, the majority of conflicts can be resolved "through deliberate communication and negotiation." Therefore, we ought not develop rules (e.g. Texas-style) that are "designed to settle" the rare intractable case because such rules could have "an unfavorable effect of the resolution of more common and less intractable disputes."
Curtis and Burt do support "informed assent" as an "appropriate approach." But they do not endorse this to impose clinical references but rather only to facilitate "the family's unspoken and unspeakable [because of religion, culture, emotional burden] preferences." Curtis and Burt fail to acknowledge or address that there will still be intractable disputes. Presumably, they would agree with Robert Truog that physicians should just accede to family wishes in the rare remaining intractable cases.