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Guidelines and Policies

A guide for families and carers  of people with profound brain damage [PDF]    All
NHMRC
This guide has been prepared for the families and friends of someone diagnosed as being in a state of post-coma unresponsiveness (PCU) or a minimally responsive state (MRS). It also provides an overview of the ethical guidelines provided to Health Professionals involved in making decisions about the patient.

Ethical Guidelines for the Care of People in Post-Coma Unresponsiveness (Vegetative State) or a Minimally Responsive State All
NHMRC
The guidelines provide an ethical framework to guide decisions in the best interests of people in PCU or MRS, and they offer a basis for reaching consensus among health professionals and families involved in making these decisions.

Post Coma Unresponsiveness (Vegetative State): A clinical frame work for diagnosis Cth
NHMRC
Guidelines for assessment and diagnosis of Post-Coma Unresponsiveness.

The vegetative state. Guidance on diagnosis and management – 2003
Royal College of Physicians of London.

Cases


Cruzan v Director, Missouri Department of Health 110 S Ct 2841
(1990)
USA
The five-to-four decision of the US Supreme Court affirmed the state’s right to determine its requirements for ‘clear and convincing evidence’ and affirmed the right of the patient in a PCU to discontinue nutrition and hydration when sufficient evidence is available. The definition of ‘clear and convincing evidence’ set by each state could require oral or written evidence from another person affirming the patient’s wishes regarding life-sustaining treatment.

Airedale NHS Trust v Bland [1993] AC 789 (Bland) UK
The House of Lords determined that it was lawful to withdraw medical treatment and support, including nutrition and hydration, from Mr Anthony Bland, a patient in a persistent vegetative state.

Re G (Persistent Vegetative State) [1995] 2 FCR 46 UK
The court held that treatment could be withdrawn, even where the patient’s mother (although not his wife) objected to the withdrawal. The views of the next-of-kin or of others close to the patient cannot act as a veto to an application, but they must be taken fully into account by the court.

W v M and S and A NHS Primary Care Trust [2011] EWHC 2443 (COP) UK
The patient, M, had been severely brain damaged by viral encephalitis and left in a minimally conscious state. The health-care authorities and M’s family wished to withdraw ANH. The judge refused. The judge assessed M’s best interests and found that she was able to have some positive experiences and there was a reasonable prospect that those experiences would continue with increased stimulation. The judge did, however, order that a do not resuscitation order was, on balance, in M’s best interests.

An NHS Trust v DJ [2012] EWHC 3524 (COP) UK
Where health authorities sought to withhold CPR, dialysis and antibiotics from a patient in a minimally conscious state, should he suffer a clinical deterioration. The patient’s family argued that he had been improving and that he was reacting more to stimuli. They also argued that he would have wished for further treatment had he been competent. The judge found that orders to restrict emergency treatments were not in the patient’s best interests. The other aspects of his life, such as his family interactions, outweighed the medical aspects in favour of withholding treatment.

Northridge v Central Sydney Area Health Service [2000] NSWSC 1241 NSW
There was a dispute between the family of an incompetent patient and the health-care team responsible for his treatment. Following the intervention of the court, Mr Thompson’s condition improved (to a limited extent) and he was transferred to a rehabilitation facility. Mr Thompson, following an overdose of heroin, was admitted into the defendant hospital. On the basis of a diagnosis of significant brain damage made after four days of admission, the provision of antibiotics and food was stopped and a ‘not for resuscitation’ order was written. The family disagreed with this course of care and sought an order from the New South Wales Supreme Court to have his treatment reinstated. In his judgment, O’Keefe J had serious concern about the way in which and time at which the diagnosis of ‘chronic vegetative state’ was arrived at.

In application of Herrington; re King [2007] VSC 151 VIC
The patient had suffered a hypoxic arrest which left her in a persistent vegetative state. The patient’s partner sought an order to continue treatment but the Supreme Court refused finding that the evidence all suggested that the treatment should be ceased as it was no longer in the patient’s best interests given it had become futile.

FI v Public Guardian [2008] NSWADT 263 NSW
The Administrative Decisions Tribunal decided it was possible for guardians under the guardianship legislation to refuse treatment for a woman who was alleged to be in a vegetative state. The decision did not deal with the question of whether the treatment should be withdrawn but it did clarify that it was possible for such a decision to be made under the New South Wales legislation.

YID [2007] NSWGT 19 NSW
The Guardianship Tribunal appointed the Public Guardian as guardian with an end-of-life power to enable treatment withdrawal from a patient in a vegetative state.

EK (Guardianship) [2005] VCAT 2520 VIC
The case concerned a 94-year-old woman with advanced dementia. The patient’s niece felt the woman was in a vegetative state, but on examination only one of three doctors said that she was ‘virtually’ in a vegetative state, the other two denying it altogether. Because the niece had persisted with this view, VCAT appointed the public advocate as the patient’s guardian, rather than the niece, to determine the appropriate course of treatment.

Re A [1992] 3 Med LR 303
A case concerning a young boy who had suffered a head injury, the trial judge found that, even though the child’s autonomous functions were being carried on by artificial means, the child had died when his brain stem had ceased to function.

Krommydas v Sydney West Area Health Service [2006] NSWSC 901 NSW
The patient was in the intensive care unit at Westmead Hospital but the hospital argued that the patient had satisfied the definition of death as laid out in s 33. The judge felt that once this determina- tion based on ‘acceptable and credible evidence’ (namely brain stem criteria) had been made then there was no residual discretion remaining with the court to order continued treatment.

Re AAC [2009] QGAAT 27 QLD
A patient was diagnosed as brain dead by all her treating doctors. Not surprisingly, the Queensland Guardianship and Administrative Tribunal found that further life-sustaining treatment would be inconsistent with good medical practice. However, once death had been declared the Tribunal no longer had jurisdiction to make such an order. It would have been more appropriate for the Tribunal to make a finding of death, rather than approve treatment withdrawal.

Papers, Reports and Books

Death and legal fictions
Shah, SK, RD Truog, et al (2011) 37(12) Journal of Medical Ethics 719-22

Death, dying and donation: organ transplantation and the diagnosis of death
I H Kerridge et al (2003) 28 Journal of Medical Ethics 89-94

International perspective on the diagnosis of death
Gardiner, d, S Shemie, et al (2012) 108 Suppl 1 British Journal of Anaesthesia i14-28.

The Messiha and Schiavo cases: third-party ethical and legal [corrected] interventions in futile care disputes
Faunce, TA and C Stewart (2005) 183 (5) Medical Journal of Australia 261-3.

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