Permanent vegetative state: the legal position

Abstract

Medicine's diagnostic and therapeutic capacities raise increasingly complex ethical and legal issues for consideration. This is particularly so when the patient is in a permanent vegetative state. This article reviews the current legal position in the case of adults in permanent vegetative state (pVS), with particular attention to the devices used by courts in reaching decisions about whether or not to prolong assisted nutrition and hydration. The article further considers the impact of the Human Rights Act 1998, and argues that the current legal position is significantly, if not determinatively, based on clinical judgement, even where there is some doubt about whether or not the cases actually meet the terms of the Royal College of Physicians (RCP) diagnostic guidelines. In addition, the article asks whether or not the devices used by courts to permit withdrawing assisted nutrition and hydration from patients in pVS could be categorised as assisted death, and notes the (arguable) weakness of these devices as a basis for derogation from the sanctity of life principle.

Notes

Royal College of Physicians (2003). The vegetative state: Guidance on diagnosis and management, Report of a Working Party of the Royal College of Physicians, p.2, para 1.9.

p. 4, para 2.5

p. 5, para 2.8

p. 7, para 3.3

p. 7, para 3.2

p. 9, para 3.5

Mason, J. K., McCall Smith, R. A., & Laurie, G. T. (2002). Law and medical ethics, (6th Edn.), London: Butterworths, at p. 473, para 16.10

Re T (adult: refusal of treatment) 9 BMLR 46 (1992) at p. 59

Re J (a minor) (wardship: medical treatment) [1990] 3 All ER 930 at p 938

David Glass v The United Kingdom [2004] Lloyd's Rep Med 76 (ECHR) at p. 85

[1993] 1 All ER 821, at p. 869

Mason, L. K., McCall Smith, R. A., & Laurie, G. T. (2002). Law and Medical Ethics, (6th Edn.), London, Butterworths, p. 558, para 18.77

[1957] Crim LR 365.

supra, note 7, per Lord Mustill at p. 131

supra, note 7, at p. 123

[1993] 1 All ER 821

1996 SLT 848; 1996 SLT 869

Practice Note [1996] 4 All ER 766

For a brief discussion of the differences between Scottish and English law, see McLean, S. A. M. (2001). Permanent vegetative state and the law. Journal of Neurology Neurosurgery and Psychiatry 7(suppl 1): 126–127.

[1995] Med.L.Rev. 80

17 BMLR 156 (1994) (CA)

[1995] Med.L.Rev. 84

[1995] Med.L.Rev. 86

[1995] Med.L.R. 86, at p. 87

This is likely to be impacted when the draft Mental Capacity Bill becomes law, broadly equating the legal position in England and Wales with that which now exists in Scotland

p. 8, para 3.8

[2004] EWHC 1879 (Admin)

at para 169

at p. 115

Code of Practice for Persons Authorised to Carry Out Medical Treatment or Research under Part 5 of the Act, SE/2002/73 (April 2002), Scottish Executive, para 2.62

at p. 164

The so-called Bolam Test, derived from the case of Bolam v Friern Hospital Management Committee [1957] 2 All ER 118

at p. 117

58 BMLR 87 (2000)

at p. 132

at p. 95

at p. 97

at p. 100

at para 145

[2004] EWHC 1879 (Admin)

at para 162

at para 166

65 BMLR 6 (2001)

at p. 8

38 BMLR 1 (1997)

at p. 10

id

38 BMLR 11 (1997) (Fam Div)

at p. 118

at p. 124