EXIT Newsletter

How should we decide?

Prof. Sheila McLean

The ruling of the Court of Session that Scottish Courts do have the jurisdiction to decide about whether or not nasogastric feeding and hydration can be removed from people in persistent vegetative state undoubtedly moves Scots Law forward, and brings it into line with other jurisdictions. But even for those who firmly believe that the withdrawal of artificial feeding is justified on grounds of compassion and respect for dignity there remains some concern both about the way in which the developed world treats these cases and the tests which are applied in them.

Lord Hope's formulation of the tests to be applied in the Janet Johnston case seems to move away from the somewhat spurious concept of "best interests" even although this is what he claims to be describing. The best interests test is spurious because the nature of the diagnosis itself means that the person in PVS has no interests whatsoever, far less "best" ones. Rather Lord Hope chose to indicate that artificial feeding could be removed when it provided no benefit to the patient - in other words, in situations where doctors feel that treatment is futile. Although I believe that this is a better formulation than that which is used in some other countries, it still leaves a lurking feeling of unease.

The discomfort with this conclusion is based on a number of factors. First, "futility" in medicine is not a clear cut concept. Indeed, there is a growing volume of literature (mostly emanating from the U.S.) which points to the difficulty of being certain that something is futile. Futility must have something to do with whether or not it can achieve its aim. Viewed from this perspective, the aim of artificial feeding is to maintain life, and in this it is manifestly successful, so how are we to define it as futile?

It is widely accepted that the tests used to judge medical behaviour are not particularly stringent....

Second, the Lord President made it clear that not all cases of this sort will need to be brought before a court in future. Rather, those caring for the patient and the relatives will be able to make these decisions, presumably in the majority of cases. Thus, the decision will clearly be one based on the best clinical judgement of doctors and will be tested (if challenged) against the rules which govern medical practice in general. It is widely accepted that the tests used to judge medical behaviour are not particularly stringent, and it might be thought that where the outcome is the ending of a life (no matter its quality) these tests are not strict enough to satisfy the general feeling that taking life (without the consent of the individual) is not a "good" thing.

Third, there is a paradox in the fact that - since the abolition of the death penalty - not even our criminal courts can sanction death.1 So, even where something is proved to the highest legal standard of "beyond reasonable doubt" the court cannot authorize the ending of a life. Yet, the outcome of a civil court's findings, based on the much lower standard of "a balance of probabilities" combined with the test generally applied to medical practice and already described as lacking stringency, may result in just such approval being given.

My suspicion is that the routes taken by courts have been tailored so that they cannot be seen as endorsing voluntary euthanasia....

These concerns are not founded on, although they may be exacerbated by, recent reports that some people who have been diagnosed as being in PVS have apparently recovered (although the extent of the recovery is not clear). Whatever one's views about "death with dignity" it is surely unsatisfactory that an unconsented-to ending of life is not tested as strictly as is humanly possible. My suspicion is that the routes taken by courts have been tailored so that they cannot be seen as endorsing voluntary euthanasia, hence the use of the criteria I have already described. Yet, arguably, the conclusion must be that the courts are endorsing a form of non-voluntary euthanasia, whilst refusing to accept the validity of a competent request for assistance in dying. For this and other reasons, it is surely time (as one of the judges in the Court of Session strongly urged) that end of life decisions were the subject of public debate, culminating ideally in an honest appraisal of the values to which we subscribe and a legislative response.

Footnote 1. I am grateful to Mr Angus Stewart QC for bringing this point to my attention.

Sheila A.M. McLean is International Bar Association Professor of Law & Ethics in Medicine at Glasgow University, and Director of the Institute of Law & Ethics in Medicine.