Chapter 12: Permanent Vegetative State

This is part of the online companion site to the book Medical Treatment: Decisions and the Law - The Mental Capacity Act in Action, edited by Christopher Johnston, written by members of 3 Serjeants' Inn and published by Bloomsbury Professional in 2010.

The site provides (1) updating material as it becomes available and (2) hyperlinks to website addresses given in the hard copy. The material is organised according to the book's chapter headings. Click on the chapter headings on the left-hand side to access the material for other chapters.

Updating material    

Updating material will be added here as developments occur.

Update to Chapter 12 (Permanent Vegetative State), paragraph 12.13 

[Cases outside the RCP guidelines]

Withdrawing artificial nutrition and hydration from patient in minimally conscious state?

On 28th September 2011 Mr Justice Baker handed down a landmark judgment in the case of W v M [2011] EWHC 2443 (COP), setting out his conclusion that it was not in the best interests of a 52 year old woman, in a minimally conscious state following a stroke, for artificial nutrition and hydration (“ANH”) to be withdrawn.

M’s family made the application and sought the withdrawal, basing their argument substantially on what they say were M’s wishes and feelings. The application was opposed by the Official Solicitor on behalf of M and by the Primary Care Trust.

Mr Justice Baker decided that the withdrawal was not in M’s best interests.

A number of points are of interest and importance:

• While the case of Bland is authority for the proposition that ANH can lawfully be withdrawn from a patient in a permanent vegetative state (“PVS”), this was the first occasion on which an application for the withdrawal of ANH had been made in respect of a person in a minimally conscious state.
• While the “balance sheet” approach to best interests is not applied in PVS cases, it must be applied in all other cases, including the case of a patient in a minimally conscious state.
• In this case, M had some positive experiences, and the importance of preserving life was the decisive factor in reaching the conclusion that the advantages of continuing ANH outweighed the disadvantages.
• The various statements made by M before her stroke, as recounted by her family, that she would not wish to live a life dependent on others, were to be taken into account, but could not be given significant weight. They were not a clear account of what she would want to happen in these circumstances.

For the future, practitioners should note:

Formal assessment (SMART and WHIM) tools play a crucial role in guarding against misdiagnosis (M having initially been diagnosed as being in a vegetative state).

People can record their views about what they would like to happen to them if they find themselves dependent on others in a formal advance decision under the Mental Capacity Act 2005 which, if shown to be valid, the Court will abide by.

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Hyperlinks

Paragraph 12.1 - Footnote 4:
...The British charity headway states now that ‘There are normally just less than 100 people in the UK in PVS at any one time.’ http://www.headway.org.uk/Coma-and-PVS.aspx .
 
Paragraph 12.1 - Footnote 16:
Legislation was initiated and passed unopposed in the Senate by a voice vote on Sunday 20 March 2005 to allow the federal courts to intervene in preventing the withdrawal of Terri Schiavo’s feeding tube. After summoning sufficient House members back from the Easter recess to provide a quorum, an identical bill was then passed in the House of Representatives at 12.42am on Monday 21 March 2005. President Bush was awakened shortly afterwards at his ranch in Crawford, Texas to sign the bill into law which he did while standing in a hallway at around 1.08am. In a speech later that day, President Bush declared: ‘… in extraordinary circumstances like this, it is wisest to always err on the side of life.’ http://www.nytimes.com/2005/03/21/politics/21debate.html (21 March 2005) and http://www.nytimes.com/2005/03/22/national/22bush.html (22 March 2005).
 
Paragraph 12.1 - Footnote 19:
http://www.timesonline.co.uk/tol/news/world/europe/article5701289.ece (February 10, 2009).
 
Paragraph 12.1 - Footnote 21:
http://www.timesonline.co.uk/tol/life_and_style/health/article3004892.ece (December 9, 2007).
 
Paragraph 12.3 - Footnote 12:
See also the ‘British Medical Association’s MCA tool kit’ http://www.bma.org.uk/images/MentalCapacityToolKit%20July2008_tcm41-175571.pdf; see paras 6.18, 8.18 and 8.19 of the MCA 2005 Code of Practice.
 
 Appendix 12.1 - Reference 4:
 http://www.bma.org.uk/ethics/index.jsp

 
Appendix 12.1 - Reference 11:
BMA. Euthanasia and physician assisted suicide: Do the moral arguments differ? London: BMA, April 1998. Available on the BMA website (http://www.bma.org.uk/ethics/index.jsp).
 
Appendix 12.2 - Reference 7:
BMA. The Mental Capacity Act 2005. Guidance for Health Professionals. London: BMA, March 2007; BMA. Medical treatment of adults who lack capacity: guidance on ethical and medico-legal issues in Scotland. London: BMA, October 2007. Both are available at: http://www.bma.org.uk/ethics/index.jsp