Never ethical or lawful to withdraw treatment from patients with a persistent disorder of consciousness, British Law professor says

By Xavier Symons

There has been significant debate in recent years about the ethics of withdrawing life-sustaining treatment from patients with prolonged disorders of consciousness (PDOCs). Some examples of PDOCs include patients in a minimally conscious state and those in a persistent vegetative state.

Prevailing wisdom in both law and ethics suggests that decisions about treatment withdrawal should primarily be determined by patients themselves, and, specifically, prior statements that patients have made about their treatment preferences.

Ethicists have also argued that the low quality of life of PDOC patients, and the high cost of continuing life support, may give us reason to withdraw treatment from patients who have little prospect of recovery.

Yet a provocative new article published in the Journal of Medical Ethics directly challenges prevailing opinion on how to treat PDOC patients. University of Oxford Professor of Law Charles Foster argues that it is never ethical (nor, from the perspective of British law, legal) to withdraw treatment from patients with PDOCs.

Foster notes that in British law there is a strong presumption in favour of the continued life of a patient with deep and prolonged impairment of consciousness. The author quotes Baroness Hale [a judge on the Supreme Court of the United Kingdom], who in Aintree University Hospitals NHS Foundation Trust v James [2014], stated that:

“The authorities are all agreed that the starting point is a strong presumption that it is in a person’s best interests to stay alive.”

Foster contends that it would take a very strong legal, medical, or ethical argument to nullify this presumption. Yet such arguments have not been forthcoming.

Sometimes it is argued that the many patients in a minimally conscious or permanent vegetative state have very little prospect of recovery. Yet Foster is skeptical about the reliability of the data on such patients. He writes that diagnosis of PDOCs is “notoriously difficult”, and that there is only a “tenuous basis” for estimates about the likelihood and speed of recovery of patients with a PDOC.

Foster is suspicious of the view that the presence of consciousness in PDOC patients provides a reason for the withdrawal of treatment. He argues that, from both a legal and ethical point of view, we should not dismiss the quality of life of patients in a PVS state. He writes:

For all we know, patients in PDOC might be in a profoundly peaceful state of optimal self-realisation, and feel no need to express their consciousness in the exuberantly detectable ways that we more frenetically conscious creatures do. This might sound ridiculous, but unless it is demonstrably ridiculous (and it plainly is not), the legal consequence is, and the ethical consequence should be, that life should be preserved.

Foster even provides reason to be suspicious of the previously expressed wishes of patients. We cannot know what it is like to have a PDOC, the author suggests, precisely because it entails a completely different state of consciousness, or no consciousness at all:

…changes in brain function that occur when a patient is in PDOC plunge the patient into a condition the nature of which is unknown and (at least at present) unknowable.

We should, therefore, not consider a patient’s statements about treatment preferences to be binding.

The article has already attracted significant attention in academic circles, and is likely to garner several responses from critics.

Xavier Symons is deputy editor of BioEdge where this appeared.