Neuroimaging and the withdrawal of life-sustaining treatment from patients in vegetative State

Medical Law Review

Volumn 17, Issue 2, 2009, Pages 245-261

  Skene, Loane ^a   Wilkinson, Dominic ^b   Kahane, Guy ^c   Savulescu, Julian ^c  

^a UNIVERSITY OF MELBOURNE   (Australia)

^b UNIVERSITY OF OXFORD   (United Kingdom)

^c UNIVERSITY OF OXFORD   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

ARTICLE; BRAIN; HUMAN; LEGAL ASPECT; PERSISTENT VEGETATIVE STATE; RADIOGRAPHY; TREATMENT WITHDRAWAL; UNITED KINGDOM;

BRAIN; ENGLAND; HUMANS; PERSISTENT VEGETATIVE STATE; WALES; WITHHOLDING TREATMENT;

EID: 67649491261     PISSN: 09670742     EISSN: 14643790     Source Type: Journal    
DOI: 10.1093/medlaw/fwp002     Document Type: Article

References (122)

1. [2006] E.W.H.C. 3152 (Fam.)
2. [2006] All E.R. (D.) 73 (Dec.)
3. Commentary, P Lewis, 'Withdrawal of Treatment from a Patient in a Permanent Vegetative State: Judicial Involvement and Innovative Treatment' (2007) 15 Med. L. Rev. 392-9.
4. AM Owen and others, 'Detecting Awareness in the Vegetative State' (2006) 313 Science 1402.
5. A second objection arose from the possibility that zolpidem (a sleeping pill) might stimulate a temporary increase in consciousness: R Clauss and W Nel, 'Drug Induced Arousal from the Permanent Vegetative State' (2006) 21 Neuro, Rehabilitation 23-8. (The use of zolpidem is not discussed in this 4 paper.)
6. The President of the Family Division agreed that the patient should be given zolpidem for three days but she did not respond.
7. The Mental Capacity Act 2005 came fully into force in England and Wales on October 1 2007.
8. For brevity, the paper considers only this Act and the 6 common law, not the Adults with Incapacity (Scotland) Act 2000.
9. The CoP was issued on 23 April 2007.
10. Airedale NHS Trust v Bland [1993] A.C. 789, [1993] 2 W.L.R. 316
11. British Medical Association, Withholding and Withdrawing Life-Prolonging Medical Treatment: Guidance (or Decision Making, 2nd edn. 2001, 3rd edn. 2007
12. General Medica Council, Withholding and Withdrawing Life-Prolonging Treatments: Good Practice in Decision-Making, 2007, para 83
13. Royal College of Physicians, The Vegetative State: Glance on Diagnosis and Management (R.C.P. 2003) (R.C.P. Guidance)
14. Australian Government, National Health and Medical Research Council, Ethical Guidelines for the Care of People in the Post-coma Unresponsiveness (Vegetative State) or a Minimally Conscious State, draft 2007 (N.H.M.R.C. Guidelines).
15. A Owen, 'When Thoughts Become Actions: Using fMRI [function magnetic resonance imaging] to Detect Awareness', Paper Presented at the Workshop, Consciousness in the Persistent Vegetative State: Philosophical and Methological Issues', Philosophy Faculty, Oxford, March 8 2008 (the Workshop).
16. A. Zeman, 'Consciousness and Neuroimaging: An Introduction', Paper Presented at the Workshop, above n 8
17. R.C.P. Guidance, above n 7.
18. Multi-Society Task Force on P.V.S., 'Medical Aspects of the Persistent Vegetative State (2)' (1994) 330 New Engl. J. Med. 1572.
19. Ibid.
20. VS and MCS are clinically distinct and both are different from 'coma' ('eyes-closed unconsciousness'); 'brain death' ('total absence of all brain function', caused by injury or disease); 'locked-in syndrome' ('consciousness is preserved but the patient is para zed except for eye movement and blinking'), though patients can move from one state to another: R Fine, 'From Quinlan to Schiavo: Medical, Ethical, and Legal Issues in Severe Brain Injury'(2005) 18 B.U.M.C. Proceedings 303 at 303-5.
21. JT Giacino and others, 'The Minimally Conscious State: Definition and Diagnostic Criteria' (2002) 58 Neurology 349.
22. S Laureys and others, 'Residual Cognitive Function in Comatose, Vegetative and Minimally Conscious States' (2005) 18 Curr. Opin. Neurol. 726.
23. A Owen and MR Coleman, 'Functional Neuroimaging of the Vegetative State' (2008) 9 Nat. Rev. Neurosci. 235
24. A Owen and others, 'Detecting Awareness in the Vegetative State' (2006) 313 Science 1402.
25. Owen, above n 15.
26. The absence of such a res onse by the other patients examined does not in itself establish that they do not also possess some level of awareness; they might be deaf or have no memory of playing tennis, for example.
27. Bland, above n 7
28. NHS Trust 'A'and 'B'and NHS Trust 'B' and 'H'[2001] 2 F.L.R. 367
29. Re AK (2000) 58 B.M.L.R. 151 (High Ct, Fam. Div., Hughes J)
30. R (Burke) v General Medical Council (Official Solicitor and others intervening) [2005] E.W.C.A. Civ. 1003, [2006] Q.B. 273
31. Re B (Adult: Refusal of Treatment) [2002] 2 All E.R. 449.
32. In the matter of Karen Anne Quinlan 355 A 2d 647 (1976) (S.C.(N.J.))
33. Cruzan v Director, Missouri Department of Health 497 US 261 (1990)
34. Schiavo ex rel. Schindler v Schiavo ex rel. Schiavo, 403 F.3d 1223, 2005 WL 648897 (11th Cit. March 23, 2005)
35. Nancy B v Hotel-Dieu de Quebec (1992) 85 D.L.R. (4th) 85 (Que. Sup. C.).
36. Northridge v Central Sydney Area Heath Service [2000] N.S.W.S.C. 1241 (O'Keefe J.)
37. BWV; Ex parte Gardner [2003] V.C.A.T. 121
38. [2003] V.S.C. 173 (Morris J.)
39. In the Application of Herrington; Re MC [2003] Q.G.A.A.T. 13
40. RWG [2000] Q.G.A.A.T. 2
41. Messiha (by his tutor) v South East Health [2004] N.S.W.S.C. 1061
42. Krommydas v Sydney West Area Health Service [2006] N.S.W.S.C. 901
43. Re King [2007] V.S.C. 151 (unreported, Williams J, April 24 2007, BC200703616).
44. Auckland Area Health Board v Attorney General [1993] 1 N.Z.L.R. 235 (HC(NZ)) (Re L).
45. See also, CoP, para 9.5.
46. See also CoP, ch 9.
47. Advance refusals of medical treatment were binding under the common law before the Mental Capacity Act came into force: See, for example, Re T (Adult Refusal of Treatment) [1993] Fam. 95
48. Bland, above n 7, at 864 (Lord Goff)
49. at 891-4 (Lord Mustill)
50. Re C (Adult: Refusal of treatment) [1994] 1 W.L.R. 290. The new formal requirements in the Act mean that some prior advance directives will no longer be binding if they do not meet the criteria in the Act, but not all. An advance directive that is inapplicable because it does not meet the statutory requirements to refuse life-sustaining treatment (see text) could be evidence of the patient's wishes even if it is 25 not binding.
51. CoP, ch 9, Quick Summary.
52. CoP, para 8.18.
53. This is the case even for decisions that are so serious they need to be made by a court: CoP, ch 8 and para 10.48.
54. A 'serious medical treatment decision' includ s 'stopping life-sustaining treatment': CoP, paras 10.40, 10.43, 10.44
55. and witholding or stopping artificial nutrition and hydration': CoP, paras 10.45, 10.48.
56. See AR Maclean, 'Advance Directives and the Rocky Waters of Anticipatory Decision-Making' (2008) 17 Med. L. Rev. 1.
57. CoP, 'Scenario: Assessing if advance decision is applicable' following para 9.44.
58. At present, there is little indication of whether some brain-damaged patients diagnosed as being in VS might in fact be in MCS and what their wishes mig lit have been if they had been asked when they were competent to consider themselves in a state of MCS rather than VS. MCS is a neurological condition that has been clinically defined only recently and very few patients are likely to have expressed explicit wishes concerning the provision of life-sustaining treatment in MCS rather than VS.
59. MJ Fuhrer and others, 'Relationship of Life Satisfaction to Impairment, Disability, and Handicap among Persons with Spinal Cord Injudry Living in the Community' (1992) 73 Archives of Physical Medicine an Rehabilitation 552
60. G Albrecht and P Devlieger, 'The Disability Paradox: High Quality of Life Against All Odds' (1999) 48 Social Science and Medicine 977.
61. EJ Emanuel, DL Fairclough, LL Emanuel, 'Attitudes and Desires Related to Euthanasia and Physician-Assisted Suicide among Terminally Ill Patients and Their Caregivers' (2000) 284 J. Am. Med. Assoc. 2460
62. L Ganzini and others, 'Physicians' Experiences with the Oregon Death with Dignity Act' 34 (2000) 342 New Engl. J. Med. 557.
63. Mental Capacity Act 2006 ss.9; 11(7) (c); Sch. 1, Pt 1. Note s.11(8): may refuse consent to life-sustaining treatment only if the instrument confers power to do that. To become operative, lasting powers of attorney must be registered with the Public Guardian: S.9(2)(b), s.58(l)(a), Sch 1, Pt 2. See also, CoP, ch 7.
64. Defined in s.4(10).
65. Mental Capacity Act 2005 (UK) ss.1(5), 4 (Factors relevant to best interests defined), 9(4), 16(3).
66. CoP, para 5.32.
67. Compare Public Advocate v RCS (Guardianship) [2004] V.C.A.T. 1880 (September 27 2004), in which a state-appointed guardian was able to refuse treatment under the Medical Treatment Act 1988 (Vic.) on the basis of an objective assessment of the patient's wishes. The decision may be open to question but the President of the Tribunal, Morris J., presided.
68. Dr Fine 'fear[s] it represents a state of greater suffering [than VS]': id, above n 12 at 305.
69. See also D Wilkinson and others, 'Letting Vegetative Patients Die, the Implications of Functional Neuroimaging' (2009) Journal Medical Ethics (forthcoming).
70. Bland, above n 7, at [1993] 1 All E.R. 821 at 894; [1993] A.C. 789, 897.
71. Dr Fine notes that none of the four or five patients he encountered in 25 years of medical practice who were in 'locked-in state' wanted to stay alive in that condition but some physicians have reported patients who do want to stay alive: id, above n 12, at 305.
72. New York: Vintage Books, 1998.
73. A positive response would not require treatment to be continued, as patients are not legally entitled to require treatment to be provided: See text to notes 18-21.
74. Bland, above n 7, All E.R. at 892; A.C. at 894 (Lord Mustill).
75. Bland, above n 7, All E.R. at 892; A.C. at 895.
76. Bland, above n 7
77. Schiavo ex rel. Schindler v Schiavo ex rel. Schiavo, above n 19
78. Ex parte Gardner, above n 20.
79. Bland, above n 7 at All E.R. at 871; A.C. at 870.
80. However, the converse is not true. If a patient is found not to respond to fMRI (such as not responding to the 'tennis' or other such exercise), that should not be taken in itself as supporting a diagnosis of VS. As Owen et al. observed (above n 2), positive evidence is far stronger than negative evidence, since the patient might not be conscious or attentive at the time of the scanning. However, evidence from failed repeated attempts might have more stificant weight.
81. Bland and, above n 7, at All E.R. at 869; A.C. at 868
82. compare BWV; Ex parte Gardner, above n 20 at 490: Treatment is futile if 'it [has] no prospect whatever of im roving [the patient's] condition' (emphasis added).
83. Owen and others, above n 2, 15.
84. R.C.P. Guidance, above n 7.
85. The application of the R.C.P. Guidance was considered in An NHS Trust v D and others [2005] E.W.H.C. 2439 (Fam.) at [39]
86. NHS Trust A v M; NHS Trust B v H [2001] 2 W.L.R. 942 at [11]-[13] (H.C.)
87. NHS Trust v P, 19 Dec 2000 (H.C.)
88. Re D (Medical Treatment) [1998] F.L.R. 411 (H.C.) (the latter three approving the earlier 1996 edition of the RCP Guidance). Other cases involving diagnosis of PVS include Re H [1998] 2 F.L.R. 36
89. NHS Trust v P, 19 Dec 2000 (H.C.)
90. NHS Trust A v H [2001] 2 F.L.R. 501.
91. Schiavo ex rel. Schindler v Schiavo ex rel. Schiavo, above n 19.
92. J. Greer stated that 'The court saw few actions [from 12 hours of videotape of the [patient] that could be considered responsive': Quoted by Fine, above n 12, at 307.
93. Though a negative response is less significant unless repeated on later occasions.
94. A Owen and others, 'Functional Neuroimaging of the Vegetative State' (2008) 9 Nat. Rev. Neurosci. 235-43
95. A Owen, personal communication (March 2008).
96. ND Schiff and others, 'Behavioural Improvements with Thalamic Stimulation after Severe Traumatic Brain Injury' (2007) 448 Nature 600-3.
97. See also W Glannon, 'Neurostimulation and the Minimally Conscious State' (2008) 22 Bioethics 337-45.
98. As suggested by Lord Mustill in Bland, above n 7 at 897.
99. For example, J. Keown disagrees with this proposition: 'Restoring Moral and Intellectual Shape to the Law after Bland' (1997) 113 Law Quarterly Review 481.
100. For further discussion, see J Savulescu and G Kahane, 'Brain-damage and the Moral Significance of Consciousness' (2009) 33 Journal of Medicine and Philosophy 1-21.
101. J Keown and L Gormally, 'Human Dignity, Autonomy and Mentally Incapacitated Patients: A Critique of Who Decides?' http://webjcli.ncl.ac.uk/1999/issue4/keown4.html.
102. Above n 62,
103. citing National Conference of Catholic Bishops, Ethical and Religious Directives for Catholic Health Care Services (U.S. Catholic Conference 1995).
104. New South Wales Department of Health, Guidelines for End-of-life Care and Decision Making (2005) (at [7.4]). http://www.health.nsw.gov.au/ policies/gl/2005/df/GL2005_057.pdf.
105. Bland, above n 7, at All E.R. at 894
106. AC at 897.
107. Above n 21.
108. Above n 19.
109. Gillick states that 'Recent information supports the conclusion that tube feeding ... can cause [suffering]'. The incision in the abdominal wall to insert the tube has 'a long-term rate of complications ... rang[ing] from 32 per cent to 70 per cent'. Medical problems include 'superficial skin infections and dislodgment or clogging of the tube', diarrhoea, and 'aspiration [that] appears to result from reflux of gastric contents and aspiration of saliva': Gillik, above n 62.
110. Above n 21.
111. Above n 21, at 245, referring to Nancy B v Hotel-Dieu de Quebec, above n 19, another case concerning a patient with respirator-dependent patient with Guillain-Barre syndrome.
112. Bland, above n 7 at All E.R. 879
113. AC at 879.
114. He said that this was a matter for Parliament to decide: All E.R. at 893
115. A.C. at 896.
116. [1995] 1 WLR 898, [1995] 2 All ER 129, [1995] 1 FLR 1056 (CA).
117. [1995] 2 All E.R. 129 at 129.
118. However, others have said that, from a person's point of view, even a tiny chance of recovery from VS makes continued treatment worthwhile and that patients should consider this seriously in order to make an informed decision about advance directives: J Stone, 'Pascal's Wager and the Persistent Vegetative State' (2007) 21 Bioethics 84
119. see also A Fenwick, 'Applying Best Interests to Persistent Vegetative State - A Principled Distortion?' (1998) 24 Journal of Medical Ethics 86.
120. Wilkinson and others, above n 39
121. And in An NHS Trust v J, above n 1, the parties accepted that fMRI was not in the patient's best interests;
122. unfortunately there was no explanation for this conclusion, as Penney observes: Above n 1 at 393.