Comment: the law governing the withdrawal of artificial nutrition and hydration from patients in a permanent vegetative state

New medical evidence regarding functional magnetic resonance imaging (fMRI) of patients diagnosed in vegetative states is in the news. The relevant article is Monti, Martin M., Vanhaudenhuyse, Audrey, et al. Willful Modulation of Brain Activity in Disorders of Consciousness N Engl J Med 2010 0: NEJMoa090537. [Addendum on 13 November 2012: newer evidence will be discussed in tonight’s Panorama programme showing that a patient previously thought to be in a vegetative state was able to provide information about his condition to researchers.]

English law on the withdrawal of artificial nutrition and hydration from patients diagnosed in a permanent vegetative state is governed by the decision of the House of Lords in Airedale NHS Trust v. Bland [1993] A.C. 789. Anthony Bland was in a persistent vegetative state (PVS) following the Hillsborough disaster. His family and medical team agreed that it was in his best interests to withdraw artificial nutrition and hydration (ANH). A declaration that such withdrawal would be lawful was sought from the courts. The House of Lords decided that although the intention of the doctor would be to bring about Bland’s death, the proposed withdrawal would be lawful as it constituted an omission rather than an act. The doctor’s duty did not require the provision of treatment that was not in the patient’s best interests.

In Bland, Lord Goff held that as a matter of practice, judicial approval should be sought in all PVS cases in which the patient’s medical team believe it is in her best interests for ANH to be withdrawn. The practice of obtaining judicial approval in all PVS cases has been formalised, first by the Official Solicitor’s successive Practice Directions, and more recently by the Code of Practice issued under the Mental Capacity Act 2005 (MCA) which assumes that the existing common law rule will continue despite the Act’s silence on this point. It will therefore continue to be the case that even when a patient-appointed donee of a lasting power of attorney consents to the withdrawal of ANH from a PVS patient, the approval of the Court of Protection will be sought prior to the implementation of the decision. (Mental Capacity Act 2005 Code of Practice [6.18], [8.18], [8.19], subsequently confirmed by Court of Protection Practice Direction 9E on serious medical treatment). This practice of seeking judicial approval in PVS cases has not been extended to other cases in which a decision is made to withdraw life-sustaining treatment, including ANH (in the dying phase) and ventilation. Although some such cases have come to court, most do not.

What is it that is special about PVS cases? Absent any judicial attempt to rationalise the special treatment of such cases, one can only speculate as to whether the rule requiring judicial approval in such cases reflects particular concern or is simply the result of historical accident. When ANH is withdrawn in a palliative care setting at the very end of life on the basis of the patient’s best interests, judicial involvement is not required. PVS patients, though, are not obviously dying and could live for many years longer if ANH were continued.

(adapted and updated from Penney Lewis, ‘Withdrawal of Treatment from a Patient in a Permanent Vegetative State: Judicial Involvement and Innovative ‘Treatment’’, Medical Law Review, Vol. 15, 2007, pp.392-399)

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