Potential legal implications of advances in neuroimaging techniques for the clinical management of patients with disorders of consciousness

Pywell, Stephanie (2015). Potential legal implications of advances in neuroimaging techniques for the clinical management of patients with disorders of consciousness. In: Sturma, D.; Honnefelder, L. and Fuchs, M. eds. Jahrbuch für Wissenschaft und Ethik. Band 19. Berlin: De Gruyter, pp. 115–146.

DOI: https://doi.org/10.1515/jwiet-2014-0110

Abstract

Three disorders of consciousness (DoCs) – coma, vegetative state (VS) and minimally conscious state – may render patients unable to communicate. Differential diagnosis is challenging, and numerous patients diagnosed as being in VS may be minimally conscious. DoCs are caused by illnesses or traumatic injuries likely to cause pain that will be not be treated if doctors believe patients are unconscious.

Neuroimaging has detected signs of consciousness in some unresponsive people, enabling some to give consistently correct ‘yes’/‘no’ answers to questions. This establishes that such patients have a degree of consciousness, so they can be asked whether they are in pain and, if so, how they would like it to be treated. This paper characterises being misdiagnosed as being in coma or VS as mental torture, and being left in pain as inhuman treatment. It considers whether the UK has a duty under its international human rights undertakings to employ all possible techniques diagnose DoCs accurately, and to treat any pain whose existence can be ascertained. It notes the European Court of Human Rights’ pragmatism about Contracting States’ resources, and suggests that the UK’s National Institute for Health and Care Excellence would deem neuroimaging not to be cost-effective.

At present, it is unlikely that the United Kingdom has a duty to undertake regular neuroimaging of all patients with DoCs. Even at the current state of knowledge, however, regular reassessment of patients with DoCs is essential in order to avoid inflicting unnecessary suffering on these extremely vulnerable people.

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