A new report raises important questions about whether or not some people diagnosed as irrevocably unconscious really are.

The study published in The New England Journal of Medicine (NEJM) finds that some patients previously diagnosed to be in a vegetative state were mentally aware and able to communicate. Researchers found that when such patients were placed in an functional MRI (fMRI) scanner and asked questions, they exhibited measurable brain activity showing actual understanding and response.

This means that fMRI can be used as a communication tool linking some patients who are unable to physically respond to those around them.

This new technique of determining consciousness and communication, when fully realized, has serious legal and ethical implications. It may make a significant difference in the way in which decisions are made to continue or withhold treatment in cases involving a diagnosis of a vegetative state. Currently, decisions to continue or deny treatment to non-responsive patients are made by doctors and surrogates who often act on the authority of documents known as advanced directives or “living wills” which, according to current practice and law, have evolved to permit the withdrawal of care and treatment, including nutrition and hydration. Usually, these decisions depend upon a finding that the individual is in a permanent persistent vegetative state where no communication is possible, and that the patient cannot comprehend their condition and express an opinion. Now it appears that the current practices used to determine the presence of consciousness and withdrawal of treatment may be inadequate. The findings of the new study show that, even when no physical movement or observable response to stimuli are present, means exist to permit some individuals to respond sufficiently to prove that they understand their condition and may wish to continue treatment.

The gravity of this finding is underscored by the level of uncertainty that already exists in such cases. The New England Journal article references other sources showing that even before the use of fMRI as used in the study, cases of persistent vegetative states and other related disorders were already improperly diagnosed 40% of the time. How many of these cases end in termination of treatment when the patient is actually conscious and capable of assisted communication?

This information is sobering to me as an attorney who prepares health care directives. I find that in the usual course of an estate planning review, it is difficult to have clients focus on the issue of health care. Now, the question arises concerning my responsibility to inform my clients of the fMRI option and whether or not to require a test before a decision is made to withdraw treatment.

In my experience in estate planning, clients customarily spend little time pondering the Advanced Medical Directive and its’ consequences.  When I bring up the topic, the usual response is a quick and dismissive “just pull the plug.” Their presumption of medical certainty made such a decision simple.

Now, I anticipate the discussions will be longer and more tentative.

References

Monti, M., Vanhaudenhuyse, A., Coleman, M., Boly, M., Pickard, J., Tshibanda, L., Owen, A., & Laureys, S. (2010). Willful Modulation of Brain Activity in Disorders of Consciousness New England Journal of Medicine, 362 (7), 579-589 DOI: 10.1056/NEJMoa0905370

Andrews K, Murphy L, Munday R, & Littlewood C (1996). Misdiagnosis of the vegetative state: retrospective study in a rehabilitation unit. BMJ (Clinical research ed.), 313 (7048), 13-6 PMID: 8664760