The case has yet to be decided by the courts. Both understandings of futility, Rubin rightly observes, are morally flawed. Allowing the values of physicians to trump those of patients gives undue emphasis to the evaluations of physicians. This position claims validity on the basis that such unilateral decisions are based on facts rather than values. Rubin uses a social constructivist critique to challenge the fact value distinction.
Social constructivism sees scientific knowledge as unavoidably value laden.
Empirical study unavoidably involves value-laden choices as to the importance of possible questions to be studied, what constitutes a clinically relevant outcome and acceptable probabilities of error. When Doctors Say No is the most thorough philosophical rebuttal I have found of medical futility as the basis for unilateral decision-making by physicians. Our society has not yet had the needed debate as to whether, for example, people in a persistent vegetative state ought to receive life-sustaining treatment. Even given such a consensus, exemptions for those with strongly held religious beliefs would likely be invoked. 8 Canadian physicians must retreat from appeals to futility and engage in open dialogue with patients in which the values of both parties are open to scrutiny.