Mind Reading and Consent to the Withdrawal of Life Sustaining Treatment
In Airedale Hospital Trustees-v-Bland  AC 789 the House of Lords set out principles to be applied on an application to withdraw life sustaining treatment from a patient in a persistent vegetative state.
It was regarded as axiomatic in such cases that the patient's own wishes could not be known and that life-sustaining treatment "is of no benefit to him because he is totally unconscious and there is no prospect of any improvement in his condition ... it is the futility of the treatment which justifies its termination." Lord Goff.
The Bland judgments have provided the template for subsequent court decisions in relation to patients in a PVS.
The work of Adrian Owen shown on Panorama this week calls into question those assumptions. Brain scanning has been used to "read" the minds of patients. They are asked to imagine certain activities and images show their brain activity. Once it is established that the patient is able to imagine, say, playing tennis and to do so on cue, then a question can be put to the patient. The programme showed a patient in a vegetative state being asked whether he was in pain - imagine playing tennis for "yes" or walking through the rooms of a house for "no". The brain activity shown led Adrian Owen to conclude that the patient was able to understand and consciously respond to the question.
Only about 20% of patients who were clinically in a vegetative state were found to dsiplay consistent brain activity on cue.
At the very end of the programme the question of consent to die was briefly touched upon. One parent of a patient said that he would never ask the question unless his son "brought it up". Of course, all the patient might be able to do, using the techniques shown, is "answer" questions. He would not be able spontaneously to communicate a wish to have or not to have treatment. Another comment made was that being able to answer questions about say pain, was not the same as establishing capacity. I wonder whether it is as simple as that?
A severely disabled adult may have capacity to make a decision or an advance decision about treatment - see X Primary Care Trust-v-XB  EWJC 1390 (Fam) in which the patient had communicated an advance decision by eye movement alone. The Mental Capacity Act 2005 makes clear that difficulty in communication does not determine capacity. If a patient's answer to a question about pain is regarded as having validity, as showing that the question is understood and that the patient has given an informed answer to it, why would other questions, such as the desire to continue treatment, not have validity? by a series of questions some patients may be determined to lack capacity, but others may be found to have capacity.
If the conclusion that these patients are communicating meaningfully is correct, then the assumption made in Bland that the patient in a PVS has no consciousness is surely wrong. And that assumption has underpinned much of the judicial decision making about withdrawing treatment from such patients.
No doubt the understanding and use of this technology will progress. More sophisticated interactions will become possible. The hope would be that they can lead to beneficial treatment and rehabilitation, but communication, however rudimentary, also provides information as to the patient's wishes and feelings. It is difficult to ignore the opportunity to determine those wishes and feelings when decisions are being made whether to continue treatment of that patient.