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High Court to rule on patient in near vegetative state

The case of a woman in whom "near permanent vegetative state" has been diagnosed is expected to provoke controversy, as the health authority is the first to seek approval for the withdrawal of artificial nutrition and hydration from a patient who is not in a vegetative state. Unlike vegetative patients, who have only reflex eye movements, the woman is able to track an object with her eyes.

James Munby, the QC regularly briefed by the Official Solicitor to represent patients' interests, revealed the pending case last week at a conference in London on the permanent vegetative state, jointly sponsored by the BMA, the Official Solicitor's office, and the Centre for Medical Law and Ethics at King's College, London. The conference was chaired by Sir Stephen Brown, president of the High Court's family division, who has presided over most of the court's "right to die" cases.

The House of Lords laid down in the case of Tony Bland--who was in a permanent vegetative state after the Hillsborough disaster--that doctors should not stop artificial feeding for vegetative patients without court sanction. It emerged at the conference that police in Lancashire and the Bristol area had contacted the BMA about two cases in which doctors were suspected of discontinuing feeding without going to court.

In one, the patient was "definitely not vegetative," according to a BMA spokeswoman. In the Lancashire case, the doctor was questioned, but the Crown Prosecution Service decided that the evidence did not warrant a prosecution. A similar decision is thought to have been taken in the Bristol case.

Mr Munby said that the court had sanctioned withdrawal of feeding in 10 cases so far, and four more were pending. He said: "The correct question as formulated by the House of Lords in the Bland case was not whether it was in Tony Bland's interests that he should be allowed to die. The correct question is: Is it in the best interests of the patient that treatment should be continued? If not, then it is lawful for treatment to be discontinued."

View larger version (94K): [in this window] [in a new window]   The Scottish courts recently gave doctors permission to withdraw feeding from Mrs Janet Johnston

In fact, Mr Munby added, it was his view that following the House of Lords ruling it was unlawful for treatment to be continued in such cases. So he was puzzled by the fact that only 10 cases had come to court, when there were thought to be 1000 to 1500 patients in the permanent vegetative state in Britain.

"Is it that large numbers of doctors are doing what the House of Lords told them not to do--discontinuing treatment without coming to court--or is it that large numbers of doctors are doing what, on one view of the law, the House of Lords has told us is unlawful?" he asked.

He predicted that the latest case would have the same outcome as the cases of the permanent vegetative state: "It may be that we will shortly come to the position where the crucial question 'Is the patient in PVS or is the patient not quite in PVS?' will become less crucial." Last year the Irish Supreme Court sanctioned the withdrawal of artificial feeding from a woman in "nearly, but not quite" permanent vegetative state for 23 years. Courts made a similar ruling in New Zealand in the case of a patient with Guillain-Barre syndrome and in Jersey in the case of a child in a non-cognitive but not permanent vegetative state.

Keith Andrews, medical director of the Royal Hospital for Neurodisability, southwest London, said that his unit's study of patients misdiagnosed as in permanent vegetative state was a cause for concern but demonstrated that clinical tools could distinguish between vegetative and non-vegetative patients (BMJ 1996:313:13-6).

Bryan Jennett, emeritus professor of neurosurgery, University of Glasgow, said that the requirement that every case should come to court "puts the UK in a unique position on the international scene."--CLARE DYER, legal correspondent, BMJ

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