Persistent Vegetative State and Futility: Should Communication by fMRI Change the Law?

Earlier this month, I discussed Adrian Owen’s research using fMRI scanners to communicate with patients who appeared to be in a Persistent Vegetative State (PVS) . By interpreting brain activity in Canadian PVS and minimally conscious patients, the researchers claim that patients can not only answer questions, but even lay down new memories.

The question of how this new research will affect patients diagnosed with PVS or minimally conscious patients is already being tested in court. Yesterday, the Vancouver Sun  reported on the case of Kenny Ng, a minimally conscious patient following a major car crash 7 years ago. Mr. Ng’s wife, Lora, wishes to withdraw hydration and nutrition. According to her lawyers, Doctors advised this course of action shortly after his car accident, but, hoping for an improvement, Mrs Ng had initially refused. After 7 years with no outward signs of improvement, Mrs Ng has asked for nutrition and hydration to be removed, ending his life. However, Mr. Ng’s parents and siblings argue that Owen’s research is “exactly what Kenny has been waiting for over the last seven years”, and that he should be kept alive so he can be assessed for inclusion in Owen’s trials.

If the decision is made in favour of the family, as Thaddeus Pope highlights, it will represent a major change to previous US and Canadian case law.

Owen has made a major scientific breakthrough. However, it is not clear that the discovery of consciousness means that the treatment should not be withdrawn. Paradoxically, the discovery of consciousness in very severely brain-damaged patients may provide more reason to let them die. Although functional neuroimaging is likely to play an increasing role in the assessment of patients in a vegetative state, caution is needed in the interpretation of neuroimaging findings.

A more detailed discussion of the ethical issues is available at:

1. Skene, L., Wilkinson, D., Kahane, G., and Savulescu, J. (2009). ‘Neuroimaging and the Withdrawal of Life-Sustaining Treatment from Patients in Vegetative State’. Medical Law Review. 17: 245-261. doi: 10.1093/medlaw/fwp 002 ISSN: 1464-3790

2. Wilkinson, D., Kahane, G., Horne, M., and Savulescu, J., (2009). ‘Functional Neuroimaging and Withdrawal of Life-sustaining Treatment from Vegetative Patients’. Journal of Medical Ethics. 35: 508-511.

3. Wilkinson, D. and Savulescu, J. (2011) ‘Knowing when to stop: futility in the ICU’. Current Opinion in Anaesthesiology April 2011 Vol: 24 (2) pp 160-165

4. Wilkinson, D., Kahane, G., and Savulescu, J., (2008). ‘Neglected Personhood’ and Neglected Questions: Remarks on the Moral Significance of Consciousness’, American Journal of Bioethics. 8:9 31- 33.

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4 Responses to Persistent Vegetative State and Futility: Should Communication by fMRI Change the Law?

  • web says:

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  • Andrew Peterson says:

    Dr. Savulescu,

    Thank you for drawing attention to these important issues. Adam Shriver, post-doctoral fellow in philosophy and neuroscience at the Rotman Institute of Philosophy, has recently posted a response to your entry on the Rotman Institute blog.

    http://www.rotman.uwo.ca/2012/can-the-discovery-of-consciousness-provide-more-reason-to-let-a-patient-die-a-response-to-savulescu/

    We would very much welcome a reply, should you be interested.

    Best wishes,

    Andrew

  • Julian Savulescu says:

    Sorry, I just saw this as it came over the Xmas break. I tried to leave a comment but they are closed. Of course, if we can get meaningful information from the patient, that is the first thing to do. I agree with the blog. I never suggested we should withdraw treatment on a patient who wants it to be continued, though this might be justifiable in some circumstances on distributive justice grounds

  • George says:

    If there is any universal ethical norm, held in common among all definitions of civilization, it is to protect the weak from predation by the strong.

    The research by now clearly demonstrates that a person who is in a “vegetative state” is actually quite conscious, and is suffering primarily from the complete inability to control their body. Since they do not even have the raw animal ability to survive by their own efforts, for example by eating in the forest and sleeping in a tree, the social norms of work ethic and responsibility for oneself cannot possibly apply, any more than they can apply to an infant.

    Thus the rights accorded to an infant should as well be accorded to the person in such a condition. The question of distributive justice is moot so long as other societal resources are allocated toward luxuries or are overtly wasted: it is a question of will rather than one of resources in any absolute sense.

    Let us also be clear about “letting” such patients die. This is clearly a case where “let” equals “make.” Free of the three-letter euphemism, the four-letter word expresses the actual intent: MAKE the patient die, in other words kill them with more or less justification.

    If we are to choose to kill these people, the next question is as to how humane a method should be used to kill them. An involuntary dry fast is surely one of the crueler methods available, not to mention inefficient and un-economical, particularly as compared to an overdose of certain drugs or the inhalation of certain gases. One need hardly go as far as Zyklon-B to find a gas that will do the job quickly, so that the hospital bed may be allocated to someone who has been “deemed” as “more worthy.”

    So let us be clear about this: we are considering setting down a course that will entail killing innocent persons for the “crime” (or perhaps the “civil tort”) of being the very weakest among us.

    One might legitimately argue for such a policy purely to take a “devil’s advocate” position and rub the noses of the public in the realities of the situation: forcing people to confront it and confront the morality of their response to it.

    But anyone who would seriously argue for killing off the weakest among us, as a matter of “distributive justice” in a world of luxury and waste, is a moral monster.

    (I also posted this comment on the other site referred in Andrew Peterson’s link; whether it shows up or not remains to be seen. I am not accusing the present author of moral monstrosity, as I see an exception for arguing for killing off these patients as a matter of forcing people to confront the issue.)

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