![handle is hein.journals/lvplr23 and id is 1 raw text is: SUZANNE OST*
BLINKING SUBJECTS; BLINKING JUSTICE? -
LAW, MEDICINE AND THE PVS PATIENT
ABSTRACT. This paper argues that in medical discourse, there is insufficient unanimity
of opinion with regards to the time at which an accurate diagnosis of PVS can be made and
that clearly, there is an incomplete medical knowledge of the PVS condition. The judiciary
chooses neither to question medical opinion that patients can be considered to be in PVS
despite a failure to satisfy the diagnostic criteria, nor medical opinion that patients in 'near
PVS' will never recover. It is apparent from an examination of the judgements given in
PVS cases that the law does not ascribe such individuals with full human status. Such a
legal position is particularly problematic in ethical terms when applied in cases involving
patients who are in a 'near PVS' position, and in the light of evidence that some PVS
diagnoses are inaccurate. The application of the best interests test in PVS cases results in
the adoption of a paternalistic, objective approach that fails to respect the former competent
individuals whom PVS patients once were. If, alternatively, the substituted judgement test
were to be adopted, the principle of individual autonomy would become central to the ques-
tion of whether PVS patients' treatment should be withdrawn. Furthermore, the application
of this test would also ensure that PVS patients continue to be viewed as 'persons'.
KEY WORDS: best interests test, human status, individual autonomy, PVS, substituted
judgement
INTRODUCTION
In recent years the UK courts have been faced with the controversial
task of ascertaining the legality of withdrawing medical treatment from
patients who have been diagnosed as being in persistent vegetative state
(PVS). The legal position following the case of Airedale Trust v Bland' is
that, provided it is in PVS patients' best interests, life sustaining medical
treatment can be withdrawn. Withdrawing treatment from such patients
raises a host of legal and ethical issues that this article seeks to examine.
As the law relies upon the medical profession's expertise upon medical
matters, one would expect unanimity of opinion to exist within the medical
profession with regards to the diagnosis of PVS and the time at which
it becomes viable to seek a declaration from the court to the effect that
* Thanks are due to Dr Elena Loizidou for her comments on earlier drafts of this article.
1 [1993] 1 All E.R. 821.
FOR Liverpool Law Review 23: 1-32, 2001.
O 2001 Kluwer Academic Publishers. Printed in the Netherlands.](ViewImageLocal?handle=hein.journals/lvplr23&div=1&collection=&method=preview&ext=.png&size=3)
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