Withdrawal of treatment from a patient in a permanent vegetative state: Judicial involvement and innovative 'treatment'

Medical Law Review

Volumn 15, Issue 3, 2007, Pages 392-399

  Lewis, Penney ^a  

^a KING'S COLLEGE LONDON   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

ETHICS; FAMILY; HUMAN; LEGAL ASPECT; NATIONAL HEALTH SERVICE; NOTE; PASSIVE EUTHANASIA; PERSISTENT VEGETATIVE STATE; PSYCHOLOGICAL ASPECT; SUBARACHNOID HEMORRHAGE; UNITED KINGDOM;

EUTHANASIA, PASSIVE; FAMILY; GREAT BRITAIN; HUMANS; PERSISTENT VEGETATIVE STATE; STATE MEDICINE; SUBARACHNOID HEMORRHAGE;

EID: 35448953074     PISSN: 09670742     EISSN: 14643790     Source Type: Journal    
DOI: 10.1093/medlaw/fwm017     Document Type: Note

References (68)

1. [1993] A.C. 789.
2. Ibid., at 876 (Lord Lowry) at 881 (Lord Browne-Wilkinson) at 887 (Lord Mustill).
3. Supra n. 1 at 867-9 (Lord Goff), 883-4 (Lord Browne-Wilkinson) at 897 (Lord Mustill, holding that 'the proposed conduct is not in the best interests of Anthony Bland, for he has no best interests of any kind'). It appears unlikely that the withdrawal of ANH will be found to be in the patient's best interests if the patient is not in a PVS or in the dying phase.
4. See W Healthcare NHS Trust v. H and others [2005] 1 W.L.R. 834 at [20], [27]-[32] (C.A.);
5. NHS Trust v. I [2003] E.W.H.C. 2243 (Fam.) at [21].
6. See also C. Dyer, 'Withdrawal of Food Supplement Judged as Misconduct' (1999) 318 BMJ 895 (describing a case in which a doctor was found guilty of serious professional misconduct and suspended from practice for 6 months for authorising the withdrawal of artificial nutrition from an incompetent stroke patient who subsequently died).
7. Royal College of Physicians, The Vegetative State: Guidance on Diagnosis and Management (RCP 2003) www.rcplondon.ac.uk/pubs/ brochure.aspx?e-165 (accessed on 4 July 2007).
8. See, e.g. An NHS Trust v. D and others [2005] E.W.H.C. 2439 (Fam.) at [39]
9. NHS Trust A v. M; NHS Trust B v. H [2001] 2 W.L.R. 942 at [11]-[13] (H.C.);
10. NHS Trust v. P, 19 December 2000 (H.C.);
11. Re D (Medical Treatment) [1998] F.L.R. 411 (H.C.) (the latter three approving the earlier 1996 edition of the RCP guidance).
12. [2006] E.W.H.C. 3152 (Fam.) at [14].
13. A.M. Owen et al., 'Detecting Awareness in the Vegetative State' (2006) 313 Science 1402.
14. R. Clauss and W. Nel, 'Drug Induced Arousal from the Permanent Vegetative State' (2006) 21 NeuroRehabilitation 23-28.
15. Ibid., at 23.
16. Supra n. 5 at [30].
17. Supra n. 5 at [21].
18. [2006] All E.R. (D.) 73 (Dec.).
19. That is, judicial approval would be desirable, but not essential. Failure to obtain judicial approval would not, in and of itself, render the subsequent decision or action unlawful. Judicial approval is, however, always obtained in such cases.
20. Supra n. 1 at [873-4].
21. Supra n. 1 at 815, approved by Lord Goff at 873.
22. Supra n. 1 at 874.
23. Ibid. Interestingly, though, only a very small number of such cases have come to court. Searches in LexisNexis and Westlaw in July 2007 generated 18 post-Bland cases in England and Wales.
24. See Re GF (Medical Treatment) [1992] 1 F.L.R. 293 (H.C.);
25. Official Solicitor, Guidance on Sterilisation Cases, www.officialsolicitor.gov.uk/docs/Sterilisationcases.doc (accessed on 4 July 2007).
26. Supra n.1 at 874.
27. See, e.g. NHS Trust v. P, supra n. 4. (Butler-Sloss P.: 'It is important, in my view, that the decisions as to best interests should continue to be a decision made by the court. It is such a serious decision to come to'.) A robust defence of the judicial authorisation requirement was mounted by Mr Justice Hedley in 2005, while the Mental Capacity and Assisted Dying for the Terminally Ill Bills were before Parliament and the Terry Schiavo case had been in the news.
28. Trust A, Trust B, Dr V v. Mr M [2005] E.W.H.C. 807 (Fam.) at [12] ('[T]he court, as a publicly accountable body, is the proper repository of this responsibility rather than doctors and rather than the family'.)
29. Practice Note (Official Solicitor: Declaratory Proceedings: Medical and Welfare Proceedings for Adults Who Lack Capacity), 28 July 2006, [2006] 2 F.L.R. 373, www.officialsolicitor.gov.uk/docs/ PracNoteMedicalandWelfareDecisions.doc
30. and www.officialsolicitor.gov.uk/docs/PVScases.doc (accessed on 4 July 2007).
31. An alternative view would have been that the Mental Capacity Act 2005 supplants the common law in this area. Procedures such as the withdrawal of artificial nutrition and hydration from PVS patients would therefore be included in the general authority in s.5 and could be authorised by a donee of a lasting power of attorney. This view is reinforced by the fact that the government explicitly chose not to proceed with the Law Commission's proposals on treatments requiring court approval. See Law Commission, Mental Incapacity, Report No. 231 (HMSO 1995) at [6.3]-[6.15]
32. Making Decisions (Cm 4465 1999) at [12].
33. Mental Capacity Act 2005 Code of Practice, 2007, www.justice.gov.uk/docs/ mcacp.pdf (accessed on 4 July 2007) at [6.18], [8.18] and [8.19].
34. See, e.g. NHS Trust A v. M; NHS Trust B v. H, supra n. 4
35. Swindon and Marlborough NHS Trust v. S, 1 December 1994, (1995) 3 Med. L.R. 84 (H.C.);
36. Frenchay Healthcare NHS Trust v. S [1994] 1 W.L.R. 601 (H.C.);
37. Re D (Medical Treatment), supra n. 4 and
38. NHS Trust A v. H [2001] 2 F.L.R. 501 (H.C.).
39. See, e.g. Re R (Adult: Medical treatment) (1996) 31 B.M.L.R. 127 (H.C.) and
40. W Healthcare NHS Trust v. H and others, supra n. 3.
41. See, e.g. C. Seale, 'National Survey of End-of-life Decisions Made by UK Medical Practitioners' (2006) 20 Palliative Med. 3, Table 3 (reporting a rate of non-treatment decisions of 33.4% of all non-sudden deaths (95% confidence interval 27.1-39.8%)).
42. Supra n. 1 at 815, approved by Lord Goff at 873.
43. For examples of such rubber-stamping, see Re S, 16 March 1998 (H.C.); Re M, 16 June 1998 (H.C.). For cases in which the diagnosis was not straightforward,
44. see, e.g. Re D, supra n. 4
45. Re H [1998] 2 F.L.R. 36
46. NHS Trust v. P, supra n. 4
47. NHS Trust A v. H, supra n. 23.
48. See, e.g. Re G [1995] 2 F.C.R. 46 (H.C.).
49. See An NHS Trust v. D and others, supra n. 4 at [42] for an example of a PVS case in which the family refused to accept the diagnosis and the Trust did not seek to withdraw ANH but rather to withhold certain life-preserving treatments.
50. Supra n. 1 at 870-1
51. Re G, supra n. 28
52. Swindon and Marlborough NHS Trust v. S, supra n. 23
53. Re A Ward of Court [1995] 2 I.L.R.M. 401 (Irish S.C.);
54. Trust A, Trust B, Dr V v. Mr M, supra n. 19 at [16]
55. British Medical Association, Guidelines on Treatment Decisions for Patients in Persistent Vegetative State (BMA 2006) www.bma.org.uk/ ap.nsf/Content/pvstreatment (accessed on 4 July 2007).
56. Mental Capacity Act 2005, ss.9-11.
57. Mental Capacity Act 2005, s.11(8).
58. Mental Capacity Act 2005 Code of Practice, 2007, [6.18], [8.18] and [8.19].
59. Mental Capacity Act 2005, ss.15-17, 23(2).
60. Mental Capacity Act 2005, s.4(7).
61. Re SL (Adult Patient: Medical Treatment) [2001] Fam. 15 at 27-8, 30 (C.A.).
62. Ibid., at 30.
63. Simms v. Simms and Another; A v. A (A Child) and Another [2003] Fam. 83 at [48],
64. citing Lord Diplock in Sidaway v. Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] A.C. 871 at 893.
65. Supra n. 5 at [18].
66. Ibid.
67. See, e.g. Medical Research Council, The Ethical Conduct of Research on the Mentally Incapacitated (MRC 1991) www.mrc.ac.uk/ Utilities/Documentrecord/index.htm?d=MRC002409 (accessed on 4 July 2007) at [6.3.4], [8.2]
68. Royal College of Psychiatrists, Guidelines for Researchers and for Research Ethics Committees on Psychiatric Research Involving Human Participants (Gaskell 2001) www.rcpsych.ac.uk/publications/ collegereports/cr/cr82.aspx (accessed on 4 July 2007) at [5.6(B)], [5.6(D)].