Review

Persistent vegetative state

The Official Solicitor for England and Wales issued in July the following revised practice note on how applications to discontinue the treatment of patients in PVS should be made.

PRACTICE NOTE : VEGETATIVE STATE

The need for the prior sanction of a High Court judge

1. The termination of artificial feeding and hydration for patients in a vegetative state will in virtually all cases require the prior sanction of a High Court judge: Airedale NHS Trust v Bland [1993] 1 All ER 821 @ 833, [1993] AC 789 @ 805 per Sir Stephen Brown P and Frenchay Healthcare Trust v S [1994] 2 All ER 403, [1994] 1 WLR 601.
2. The diagnosis should be made in accordance with the most up-to-date generally accepted guidelines for the medical profession. A working group of the Royal College of Physicians issued guidance on the diagnosis and management of permanent vegetative state (PVS) in March 1996 (JR Coll Physns 1996; 30: 119-21). This has been endorsed by the Conference of Medical Royal Colleges. The working group advises that the diagnosis of permanent vegetative state is not absolute but based on probabilities. Such a diagnosis may not reasonably be made until the patient has been in a continuing vegetative state following head injury for more than 12 months or following other causes of brain damage for more than 6 months. Before then, as soon as the patient’s condition has stabilised, rehabilitative measures, such as coma arousal pro- grammes, should be instituted (see Airedale NHS Trust v Bland [1993] 1 All ER 821 @ 872, [1993] AC 789 @ 870-71). It is not appropriate to apply to court for permission to terminate artificial feeding and hydration until the condition is judged to be permanent. In many cases it will be necessary to commission reports based on clinical and other observations of the patient over a period of time.

Applications to court

3. Applications to court should be by originating summons issued in the Family Division of the High Court seeking a declaration in the form set out in paragraph 5 below. Subject to specific provisions below, the application should follow the procedure laid down for sterilisation cases by the House of Lords in Re F (Mental Patient: Sterilisation) [1989] 2 All ER 545, [1990] 2 AC 1 and in the Official Solicitor’s practice note (Sterilisation Practice Note [1996] 2 FLR 111).
4. Applications to court in relation to minors should be made within wardship proceedings. In such cases the applicant should seek the leave of the court for the termination of feeding and hydration, rather than a declaration. The form of relief set out in paragraph 5 below should be amended accordingly.
5. The originating summons should seek relief in the following form:

‘(1) It is declared that despite the inability of X to give a valid consent, the plaintiffs and/or the responsible medical practitioners: (i) may lawfully discontinue all life-sustaining treatment and medical support measures (including ventilation, nutrition and hydration by artificial means) designed to keep X alive in his existing permanent vegetative state; and (ii) may lawfully furnish such treatment and nursing care whether at hospital or elsewhere under medical supervision as may be appropriate to ensure X suffers the least distress and retains the greatest dignity until such time as his life comes to an end. (2) It is ordered that in the event of a material change in the existing circumstances occurring before such withdrawal of treatment any party shall have liberty to apply for such further or other declaration or order as may be just.’

6. The case will normally be held in open court. The court will, however, usually take steps to preserve the anonymity of the patient and the patient’s family (and, where appropriate, the hospital) by making orders under section 11 of the Contempt of Court Act 1981: Re G (Adult Patient: Publicity) [1995] 2 FLR 528. An order restricting publicity will continue to have effect notwithstanding the death of the patient, unless and until an application is made to discharge it: Re C (Adult Patient: Restriction of Publicity After Death) [1996] 1 FCR 605.

The parties

7. The applicant may be either the next-of-kin or other individual closely connected with the patient of the relevant district health authority/NHS Trust (which in any event ought to be a party): Re S (Hospital patient: Court’s Jurisdiction)(C.A.) [1996] Fam. 1. The views of the next-of-kin or of others close to the patient cannot act as a veto to an application but they must be taken fully into account by the court: Re G(Persistent Vegetative State) [1995] 2 FCR 46.
8. The Official Solicitor should normally be invited to act as guardian ad litem of the patient, who will inevitably be a patient within the meaning of RSC Ord. 80. In any case in which the Official Solicitor does not represent the patient, he should be joined as a defendant or respondent.

The investigation

9. There should be at least two independent reports on the patient from neurologists or other doctors experienced in assessing disturbances of consciousness. One of these reports will be commissioned by the Official Solicitor. The duties of doctors making the diagnosis are described in the report of the working group of the Royal College of Physicians as follows:-

‘They should undertake their own assessment separately and should write clearly the details of that assessment and their conclusion in the notes. They must ask medical and other clinical staff and relatives or carers about the reactions and responses of the patient and it is important that the assessors shall take into account the descriptions and comments given by relatives, carers and nursing staff who spend most time with the patient. The medical practitioners shall separately perform a formal neurological examination and consider the results of those investigations which have been undertaken to identify the cause of the condition. It is helpful for nursing staff and relatives to be present during the examination; their role as responsible witnesses who spend a much longer time with the patient that can the medical practitioners must be recognised.
It is to be emphasised that there is no urgency in making the diagnosis of the permanent vegetative state. If there is any uncertainty in the mind of the assessor then the diagnosis shall not be made and a reassessment undertaken after further time has elapsed. The most important role of the medical practitioner in making the diagnosis is to ensure that the patient is not sentient and, in this respect, the views of the nursing staff, relatives and carers are of considerable importance and help.’

The views of the patient and others

10. The Official Solicitor’s representative will normally require to interview the next-of-kin and others close to the patient as well as seeing the patient and those caring for him. The views of the patient may have been previously expressed, either in writing or otherwise. The High Court may determine the effect of a purported advance directive as to future medical treatment: Re T(Adult: Refusal of Medical Treatment) [1992] 4 All ER 649, [1993] Fam. 95, Re C (Adult: Refusal of Medical Treatment) [1994] 1 All ER 819, [1994] 1 WLR 290. In summary, the patient’s previously expressed views, if any, will always be an important component in the decisions of the doctors and the court, particularly if they are clearly established and were intended to apply to the circumstances which have in fact arisen.

11. Members of the Official Solicitor’s legal staff are prepared to discuss PVS cases before proceed- ings have been issued. Contact with the Official Solicitor may be made by telephoning 0171 911 7127 during office hours.
12. This practice noted replaces the practice note dated March 1994 reported at [1994] 2 All ER 413, [1994] 1 FLR 654. Peter Harris, Official Solicitor, 26th July, 1996

Note The Official Solicitor’s office was well represented at a recent meeting to discuss the persistent vegetative state in Leuven, Belgium. The three day meeting combined a conference of a BIOMED I concerted action led by Professor Andrew Grubb of King’s College London, that is examining the medical, ethical and legal issues surrounding PVS, with the annual meeting of the European Association of Centres of Medical Ethics. A report may appear in a future issue of the Bulletin.