Futility, conscientious refusal, and who gets to decide

Most discussions of medical futility try to answer the Futility Question: when is a medical procedure futile? No answer enjoys universal support. Some futility policies say that the health care provider will answer this question when the provider and patient (or surrogate decisionmaker) cannot agree. This raises the Decision Question: who has the moral authority to decide what to do in cases where futility is disputed? I look for a procedural answer to this question, an answer that does not turn on whether a given party happens to answer the Futility Question correctly. I argue that these policies get it right; the provider should decide because providers have a right of conscientious refusal that extends to refusing procedures on grounds of futility. This is a procedural answer because providers have this right even if they are sincerely mistaken about whether a procedure is futile.