Article 9 of the Convention on Human Rights and Biomedicine requires them
merely to be taken into account': thus they need not always be complied with. The Convention'sExplanatory Reportadvises practitioners to check that their patients' wishes continue to applyand are still valid, taking account in particular of
technical progress in medicine' [22].
10.4. 3Decisions by proxy
According toMaking Decisions,the Government proposes to enact legislation
conferring on people with mental capacity the power to appoint a proxy to take
medical decisions for them, after the onset of incapacity. The person appointed
would not be able to authorise the withdrawal of artificial nutrition or hydration
unless explicitly invested with that power [23].
10.4.4 Patients in, or close to, permanent vegetative state
It could be argued that patients in, or close to, permanent vegetative state 4PVS) are
not critically ill. Provided that their nutrition and hydration are maintained, such
patients may survive for many years. It should, however, be recognised that the
perceived futility of life in PVS presents dilemmas akin to some of those associated
with critical illness. Furthermore, the emergencies which arise during the nursing
of PVS patients are often life-threatening.
InAiredale NHS Trustv.Bland41993), the House of Lords upheld a declaration
that the doctors' proposal to withdraw food and water from their patient was
lawful. In the judgement of the medical team 4and the family), keeping Anthony
Bland alive had become futile, because there was no hope that he would ever
recover from the carefully diagnosed PVS he was in. The court accepted that this
judgement was one which a respectable body of medical opinion shared, and
agreed that the continuation of artificial nutrition and hydration was not in the
best interests of the patient. The Law Lords did request that the moral, social and
legal issues raised by the case should be reviewed by Parliament and, as an interim
safeguard for patients, insisted that life-sustaining treatment should be withdrawn
from adults in PVS only with the backing of a court declaration.
Since the decision inBland,theclinical description of PVS has received much
attention. In 1994 the House of Lords' Select Committee on Medical Ethics
recommended the setting up of a working group to produce guidance on the
diagnosis and management of PVS. A Working Party of the Royal College of
Physicians responded to the challenge in 1996 with the publication of The
Permanent Vegetative State[24], which set out guidelines subsequently endorsed by
both the BMA and the Official Solicitor. According to the guidelines, the diagnosis
of PVS is not absolute but based on probabilities. A diagnosis should not be made
until the patient has been in a continuing vegetative state for more than 12 months
following head injury, or more than 6 months following other causes of brain
damage. As soon as the patient's condition has stabilised, rehabilitative measures
such as coma arousal programmes should be instituted. Reports based on clinical
and other observations of the patient over a period of time, will often be needed.
Nevertheless, diagnosis of PVS remains difficult, and ever since the decision in
206 Nursing Law and Ethics