Abstract
In this article, we reassess the court's role in the withdrawal of clinically assisted nutrition and hydration from patients in the permanent vegetative state (PVS), focussing on cases where health-care teams and families agree that such is in the patient's best interest. As well as including a doctrinal analysis, the reassessment draws on empirical data from the families of patients with prolonged disorders of consciousness, on economic data about the costs of the declaratory relief process to the National Health Service (NHS), and on comparative legal data about the comparable procedural requirements in other jurisdictions. We show that, following the decision in the Bland case, the role of the Court of Protection is now restricted to the direct supervision of the PVS diagnosis as a matter of proof. We argue that this is an inappropriate role for the court, and one that sits in some tension with the best interests of patients. The blanket requirement of declaratory relief for all cases is economically expensive for the NHS and thus deprives other NHS patients from health care. We demonstrate that many of the ancillary benefits currently offered by declaratory relief could be achieved by other means. Ultimately, we suggest that reform to the declaratory relief requirement is called for.
Highlights
As well as including a doctrinal analysis, the reassessment draws on empirical data from the families of patients with prolonged disorders of consciousness, on economic data about the costs of the declaratory relief process to the National Health Service (NHS), and on comparative legal data about the comparable procedural requirements in other jurisdictions
In the 20 or so years since the decision in Bland, the legal expectation in England and Wales has been that the court should be involved by way of declaratory proceedings in every decision to withdraw clinically assisted nutrition and hydration (CANH) from patients in the permanent vegetative state (PVS), even where families and health-care teams agree that it is an appropriate course of action
Recent British Medical Association (BMA) guidance is explicit about this: As expertise and professional guidelines develop on PVS, the BMA can see no reason to differentiate between decisions for patients in PVS and those for patients with other very serious conditions where ANH is not considered to be a benefit, which are currently governed by established practice without the need for legal review . . . The BMA hopes that in future the courts will decide that PVS cases no longer inevitably require court review, where consensus exists, as long as such withdrawal is in accordance with agreed guidelines.[16]
Summary
The requirement that the court must consider all PVS cases, even in the absence of disputes or diagnostic disagreement, is not without controversy British clinicians, it seems, are largely of the view that once a patient’s vegetative state has been diagnosed as permanent, and where the family is in agreement, it should be possible to withdraw treatment without recourse to a court.[15] recent British Medical Association (BMA) guidance is explicit about this: As expertise and professional guidelines develop on PVS, the BMA can see no reason to differentiate between decisions for patients in PVS and those for patients with other very serious conditions where ANH is not considered to be a benefit, which are currently governed by established practice without the need for legal review .
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