Should cases of permanent vegetative state still go to court?

Since the judgments in the Tony Bland case in 1993 it has been necessary to obtain high court approval before withdrawing artificial nutrition and hydration from a patient in a permanent vegetative state. There have been 18 cases in England and one in Scotland, and in this issue Wade and Johnston review the medical and legal procedures involved (p 841).¹ A consensus exists in many countries that such treatment withdrawal is medically, morally, and legally appropriate, but only in the United Kingdom is a court appearance required before this can be done.² May it not be time to change this practice?

In the Bland case the Master of the Rolls and four of the five judges in the House of Lords indicated that their recommendation that future cases should each come to court was to be an interim measure until a body of medical expertise and practice had been built up and public confidence established.³ In early 1995 the Law Commission proposed that in future court approval might be replaced by a certificate from an independent medical practitioner, appointed for that purpose by the Secretary of State.⁴ Later that year the Scottish Law Commission went further, requiring only that the treating doctor carry out such consultations as accord with good medical practice.⁵ Both commissions allowed that if there was a dispute between relevant parties a court could be asked to adjudicate. Neither the Westminster nor the Scottish parliament has so far discussed adopting these proposals, which would require primary legislation. However, in 1996 the Court of Session declared that not every case of persistent vegetative state in Scotland need come to court, but later the Lord Advocate stated that only if the court had been involved could he guarantee immunity from prosecution for the doctors.⁶ In practice therefore the position in Scotland is effectively the same as elsewhere in the United Kingdom.

The recently published BMA guidance document takes this matter further.^7–8 It too hopes that it will eventually be decided that cases of withdrawal of treatment in cases of persistent vegetative state should no longer require court review provided that the withdrawal is undisputed and accords with agreed guidance. Moreover, it can see no reason to differentiate between permanent vegetative state and other conditions where artificial nutrition and hydration are no longer considered to be beneficial treatment. For all such cases, including permanent vegetative state, it proposes a formal clinical review by a senior clinician who is not part of the treating team. This clinician’s written opinion and other details of all such cases should be available for regular local audit and kept for the Commission on Health Improvement should it wish to review them.

In the United States in the years after the landmark Quinlan case in 1976 over 100 requests to authorise withholding or withdrawing treatment from a variety of cases, including many of permanent vegetative state, were heard in state courts and one in the US Supreme Court.⁹ By 1990, however, several judges had declared that it was no longer necessary—indeed it was undesirable—for such cases to come to court unless there was some dispute.¹⁰ If one of the alternatives to court review proposed for Britain were to be adopted it would still impose more formality than is required in any other country.This would require the decision making process for withdrawal of artificial nutrition and hydration to be similarly formal to the declaration of brain death—which requires two doctors to certify that the UK colleges’ diagnostic criteria have been met.

Since the BMA guidance was published some media commentators have expressed concern that doctors alone should be left to make these difficult decisions.¹¹ However, it has been the Bland judges and the law commissions, not doctors, who have led the arguments for dispensing with court review of cases of permanent vegetative state. Only years later has the medical profession come up with a proposal that not only addresses the problem of permanent vegetative state but also requires extra safeguards for all cases where withdrawal of artificial nutrition and hydration is contemplated. It is to be hoped that this will provoke debate among doctors, lawyers, and the public that will lead to safe and more compassionate practice, while reducing legal uncertainties for doctors.

Education and debate p 841