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Scottish judges say court can decide in PVS cases

Five senior judges ruled last week in Scotland's first right to die case that a single judge in the Court of Session can sanction the withdrawal of artificial feeding from a patient in the persistent vegetative state. The case of Janet Johnstone, who is 53 years old and has been in a persistent vegetative state since 1992 after an overdose of prescribed medicines, will now go back to Lord Cameron, who referred the case to the more senior judges because of its complexity and sensitivity.

The judges ruled that the court could authorise doctors to discontinue feeding, but as a civil court it could not grant the immunity from prosecution sought by the Law Hospital NHS Trust. The Lord Advocate, Lord Mackay of Drumadoon, is to issue a policy statement on criminal liability within the next few weeks.

The ruling opens the way for such cases to go to court in Scotland in the same way as they have done in England since 1992, when doctors caring for Tony Bland, a victim of the Hillsborough football stadium disaster, sought court sanction to end his life.

The decision coincided with the publication of new guidelines from a Royal College of Physicians working party to help doctors diagnose persistent vegetative state. The guidelines were prepared before the discovery this month that a patient diagnosed as having the condition for seven years was sentient and able to communicate with hospital staff.

Professor David London, the college registrar, said: "Our guidance is based on the best evidence available to us at the time and is intended to help doctors by differentiating the clinical states in line with current knowledge. When we have seen the clinical details of this recent case, we will review the guidance."

The group prefers to use the term "permanent" rather than "persistent" vegetative state and states that it can be diagnosed when a patient has been in a vegetative state for more than a year after a head injury or for six months after brain damage from other causes. The state should be diagnosed by two independent doctors with experience in assessing disturbances of consciousness. The assessors must ask medical and other clinical staff and relatives or carers about the patient's reactions and responses. The diagnosis is based on clinical criteria, including no awareness of self or the environment, no evidence of language comprehension or expression, and no response to visual, auditory, or tactile stimuli.--CLARE DYER, legal correspondent, BMJ

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