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
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.