Relevant case law

The Bland case is a landmark. The 17-year-old Bland was caught up in a stampede when attending the Football Association Cup semi-final in 1989. He suffered brain damage from lack of oxygen due to a crush injury to his chest, and ended up in a PVS. There was consensus in the House of Lords that Bland had no best interests of any kind and that the decision to withhold treatment should not be based on his best interests.7 The court sanctioned withdrawal of Bland's treatment, which in the opinion of the medical profession offered him no clinical benefits. Lord Goff of Chieveley correctly pointed out that a doctor is not required to continue life-prolonging treatment in the best interests of a patient in a PVS when the futility of the treatment can justify its termination.8

However, such reasoning has not been rigorously followed in subsequent cases. In NHS Trust v D, Ms D had mitochondrial cytopathy to the extent that she was in a PVS and had no awareness of any kind. The doctors applied to the court for a declaration that it would not be in Ms D's best interests to try to prolong her life with invasive resuscitation if either her breathing failed or she suffered cardiac arrest or contracted a potentially life-threatening infection that would normally be treated by antibiotics. The most relevant question was ‘Are there any advantages to this patient in attempting by the use of very invasive procedures to prolong her survival beyond that which will naturally occur?’ The court held that there was none and Ms D's best interests demanded that she should be allowed to die peacefully and with dignity.4

In A Hospital v W, because W was in a PVS after a cycling accident, Sir Mark Potter held that it would not be in W's best interests to continue life-sustaining treatment and that such measures could be lawfully withdrawn.5

In Re D, a 55-year-old man, Mr D, developed a swelling in his thyroid gland for which he underwent an operation in May 2011. In the course of the procedure, Mr D had a cardiac arrest after which he suffered severe and irreparable brain damage. He ended up in a PVS. Mr Justice Peter Jackson held that allowing Mr D to ‘die with dignity and with as little suffering as possible’ served his best interests.6 Although both Sir Mark Potter and Mr Justice Peter Jackson considered futility of treatment in their analysis, the best interests test underlay their decisions to allow withdrawal of treatment.

The best interests of patients in a PVS

One would not dispute that a patient in a PVS no longer has any quality of life. For someone with no cognitive function and no prospect of ever recovering such capacity in this world, we contend that it must be a matter of indifference whether he or she lives or dies. There should be no room for the court to hold that denial of life-sustaining treatment is in the best interests of a patient in a PVS even with reference to ‘the right to dignity’ or ‘the right to die with dignity’.

Futility of treatment

Without disrespect to the court's decision to authorise withdrawal/withholding of treatment for patients in a PVS, we merely propose a consistent approach for the court to reach the same conclusion in line with existing legal and ethical principles. In fact, a medical practitioner is under no legal duty14 to continue a treatment, ‘where it is the doctor's clear professional view that such treatment would provide the patient with no clinical benefit or would be futile’.12 A treatment may be futile should it offer no reasonable benefit or should the potential risks far outweigh the expected benefits.15 One must bear in mind, furthermore, that the question is always whether the treatment would be futile, not whether the patient's life would be worthwhile. In the absence of a binding AD, withdrawal of treatment for a patient in a PVS could be appropriate based on the futility of the treatment without resort to the best interests of the patient.

While the court is entitled to a professional opinion as regards the futility of a treatment so far as it can withstand logical analysis,16 critics might argue that the futility of a treatment relies too much on the subjective assessment of individual medical practitioners. As a risk for someone might be considered a benefit by someone else, a risk–benefits assessment may not satisfactorily underlie the assertion that a treatment is futile. Such a view of relativism has ignored the principal duties of medical practitioners. While it is entirely valid to argue that not everyone would consider it a benefit to live for a long time, the essence of medical care is to pursue a well-recognised common goal to promote health and relieve suffering. It is on this principle that the ethical and legal duties of medical practitioners are based. To pursue something deviating from these core values would be beyond the remit of the duties of medical practitioners.

Of course, ethicists have not yet agreed upon the definition of futility. Schneiderman et al17 suggested that futility measured according to a qualitative parameter refers to any treatment that merely preserves permanent unconsciousness or that fails to end total dependence on intensive medical care. In the mid-1990s, the American Medical Association stated that ‘since definitions of futile care are value-laden, universal consensus on futile care is unlikely to be achieved’. Since then, there has been a switch to the process-based procedural approach to resolving futility disputes.18 However, such an approach was criticised for disguising futility as a criterion of distributive justice for rationing of healthcare. Moratti pointed out, and we agree, that futility should pertain exclusively to the appropriateness of treatment for an individual patient, and expensive interventions should not be labelled futile to justify denial to certain patients on the grounds of lack of resources.19 Although the latest development of futility pinpoints the importance of better communication and negotiation, the fact remains that negotiation may still fail with intractable conflict.20 Suffice it to say that intervention should not be given if there is a general consensus in the medical profession that a treatment is futile.

There are instances where, considering the invasive nature of a treatment, the risks of bodily injuries, and the poor quality of life achieved even if the treatment is successful, doctors may have different opinions as to whether a treatment is futile or not. It is important that the medical profession continue to evolve new strategies for resolving the questions of futility. However, the fact that there is no consensus on the definition of futility should not undermine its value. At the extremes of the continuum, medical practitioners would unanimously agree that some treatments would apparently be too risky to apply and others would offer no clinical benefits at all. It is noteworthy that the House of Lords have held that existence in a vegetative state with no prospect of recovery is regarded by the medical profession as not being a benefit, and this forms a proper basis for the decision to discontinue treatment and care.21 In other words, futility alone is sufficient to justify withdrawal of life-sustaining treatment for patients in a PVS. With this in mind, and considering that patients in a PVS have no interests that can be furthered by dying with dignity, the UK courts should consistently refrain from the best interests test for similar cases in the future.