Seeking certainty?: Judicial approaches to the (non-)treatment of minimally conscious patients

• Published in: Medical law review 2017-08, Vol.25 (3), p.428-455
• Main Authors: Huxtable, Richard, Birchley, Giles
• Format: Article
• Language: English
• Subjects: Judicial power; Medical care; Patients
• ISSN: 0967-0742; 1464-3790
• DOI: 10.1093/medlaw/fwx014

A modest, but growing, body of case law is developing around the (non-)treatment of patients in the minimally conscious state. We sought to explore the approaches that the courts take to these decisions. Using the results of a qualitative analysis, we identify five key features of the rulings to date. First, the judges appear keen to frame the cases in such a way that these are rightly matters for judicial determination. Secondly, the judges appraise the types and forms of expertise that enter the courtroom, seeming to prefer the 'objective' and 'scientific', and particularly the views of the doctors. Thirdly, the judges appear alert to the reasonableness of the evidence (and, indeed, the parties) and will look favourably on parties who are willing to co-operate. But the judges will not simply endorse any consensus reached by the parties; rather, the judges will reach their own decisions. Those decisions must be taken in the best interests of the patient. Fourthly, the judges approach this assessment in different ways. A balancing exercise is not consistently undertaken and, even in those cases in which it is, the weight accorded to particular factors varies. As we discuss, the consistency and predictability of the law in this area is open to question. Finally, however, we cautiously suggest that some consistent messages do begin to emerge: the courts' apparent preference for certainty in diagnosis and prognosis provide pointers for how cases might be decided.