Ethics

LOANE SKENE, University of Melbourne - Law School
DOMINIC WILKINSON, University of Oxford - Division of Public Health and Primary Health Care
GUY KAHANE, University of Oxford ? Oxford Uehiro Centre for Practical Ethics
JULIAN SAVULESCU, University of Oxford - Uehiro Centre for Practical Ethics
In a recent English case before the Family Division of the English High Court, the Official Solicitor objected to the withdrawal of treatment from a patient diagnosed as being in vegetative state (VS) despite agreement between the NHS Trust and the patient?s family that treatment should be withdrawn: An NHS Trust v. J. One objection arose from the possibility, based on a recent medical article, that a functional magnetic resonance imaging test (fMRI, commonly called a brain scan) might indicate that the patient retained a degree of consciousness. This seems to be the first objection of this kind and in this case, after a short time, the Official Solicitor agreed with the family and the Trust that treatment should be withdrawn without performing fMRI. However, all cases involving the withdrawal of life-sustaining treatment from patients in VS must come before a court (now the Court of Protection) and the issue is likely to be raised again. Indeed, given the significant advances in neuroimaging studies of VS since 2006, and probable further scientific progress in the near future, questions about the legal significance of fMRI are likely to become increasingly important.

This paper assesses the possible effects on decision making about the withdrawal of life-sustaining treatment if fMRI suggests that a patient in VS has some level of consciousness. It focuses on the principles set out in the Mental Capacity Act 2005 (UK) (which has come into force since the case mentioned above), the Mental Capacity Act Code of Practice (CoP) and the common law. Relevant legal factors include the patient?s wishes expressed in an ?advance decision to refuse medical treatment? under the Act, decisions by a donee of a lasting power of attorney appointed under the Act, both of which are binding under the Act if they apply in the circumstances; and, if there is no such provision, the patient?s best interests, taking account of the patient?s wishes inferred from general evidence and the futility of continuing treatment. Current research suggests that neuroimaging will at most establish that some patients diagnosed as being in VS are in fact in a condition that clinicians describe as a ?minimally conscious state? (MCS). The patients reported to date have not recovered beyond that state and, indeed, may revert to VS. However, applications for fMRI when judicial approval is sought from the Court of Protection to withdraw treatment from patients in VS may delay the process and raise issues for the Court in assessing the relevance of fMRI to the patient?s interests. This paper outlines legal principles relevant to judicial review and discusses underlying philosophical issues, including the limited availability of resources for health care.