Medical Treatment: Decisions and the Law

13. Permanent Vegetative and Minimally Conscious States

CONCLUSION

The substantive law in relation to PVS has changed little over recent years. The principles enunciated by the House of Lords in Bland still apply. However, as the case law relating to the MCA develops, and in the light of the Lambert decision, change may also follow in how PVS cases are considered in future. In stark contrast, the rate of medical research into the differential diagnosis of PVS and MCS has been rapid: recent research suggested that some patients thought to be in a vegetative state could be aware, despite appearing to be unconscious and being behaviourally unresponsive. The disturbing level of misdiagnosis mandates a cautious approach to the immediate acceptance of a PVS diagnosis by the court. Even in very recent cases there have been patients initially said to be in a PVS who were in fact in a MCS when a rigorous diagnostic approach utilising SMART testing was adopted. It is essential that any application for withdrawal of artifi cial hydration and nutrition should be supported by a sound diagnostic approach with convincing evidence that all reasonable treatment, assessment and rehabilitation measures have been undertaken. Any indications of possible consciousness, apparent either from medical records or from witness testimony, should be analysed and explained to determine whether they in fact are indicators of consciousness. If a diagnosis of PVS is clearly established then the fi nal steps of withdrawal of life-sustaining hydration and nutrition will generally be permitted by the court. For all other permanent disorders of consciousness the outcome will turn on the unique facts of the particular case.

Summary

The legality of the withdrawal of feeding in Bland was resolved by analysing whether the doctor should or should not continue treatment and not by an assessment of whether the doctor should take a course which in fact causes or accelerates the patient’s death.

Not continuing feeding is an omission, not an act. Criminal liability for the consequence of an omission to act can arise only when there is a duty to act. Here, because continuing treatment is no longer in the patient’s best interests, there is no continuing duty to act; that is, there is no duty on the doctors to continue feeding. Thus, if death follows a failure to feed, that death is not the criminal (or civil) responsibility of the doctor: the cause of the death is legally the original disease or trauma which caused the vegetative state.

In contrast, where a person is in MCS with some (although very much reduced) consciousness then the continuation or withdrawal of treatment (including clinically assisted nutrition and hydration) must be determined in accordance with their best interests applying s 4 MCA 2005.

Contents

  • A Introduction  13.1
  • B PVS: Legal principles 13.2
  • The Bland decision  13.3
  • The problem with ‘act’ and ‘omission’ 13.4
  • Continuing treatment as an assault 13.5
  • European Convention on Human Rights  13.6
  • European Convention on Human Rights: the Lambert decision 13.7
  • Extending Bland to other cases  13.8
  • MCS: Legal principles  13.9
  • Advance directives/prior consent 13.10
  • Withdrawal of treatment in MCS 13.11
  • Summary  13.12
  • C Diagnosis of PVS and MCS 13.13
  • ‘Permanent’ VS 13.14
  • Diagnosis of a minimally conscious state 13.15
  • Imaging  13.16
  • Interventional programmes 13.17
  • D Role of the family  13.18
  • E Is an application to court required?  13.19
  • Consequences  of  withholding  nutrition  and  hydration   without   court approval 13.20
  • F Application to court 13.21
  • Confidentiality 13.22
  • Evidence  13.23
  • G Emergency cases 13.24
  • Critique of Frenchay approach 13.25
  • H Children  13.26
  • I Doctors who disagree in principle  13.27
  • J Conclusion  13.28
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