Ronald Clary, JD – Brain Blogger Health and Science Blog Covering Brain Topics Wed, 30 May 2018 15:00:03 +0000 en-US hourly 1 Pulling The Plug Too Soon? Fri, 09 Apr 2010 12:00:17 +0000 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.


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

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You Have a Right to Choose if we Agree Fri, 19 Feb 2010 12:00:47 +0000 My first encounter with informed medical consent came as a young law student. I was assigned to assist a lawyer in the defense of an older man who had refused treatment for leukemia. His daughter objected, and asked the court to appoint her to be his conservator so she could compel him to undergo treatment.

When the father spoke to my supervisor, his position became clear. His atypical choice was informed by his cultural background and personal character. An immigrant from Eastern Europe, he was adamantly against yielding control of his life to his daughter. He had tried the medicines, and found they sapped his strength and made him weak. He would rather go on strong for as long as possible and remain his own master.

At the hearing, the lawyer told the judge that his client understood his illness and the prospect of oncoming death, and still chose for his own reasons to turn down further treatment. After confirming this with the man himself, the judge denied the daughter’s request, leaving him to live or die on his own terms.

In the aftermath, it occurred to me that there had been no true issue concerning the man’s ability to comprehend the situation or express his feelings. Yet, he was still forced into a court fight because he decided to turn down treatment. Shouldn’t his clearly stated opinions be enough?

Dr. Alec Buchanan of the Yale Department of Psychiatry evaluated the existing state of law and practice concerning informed consent and reported his findings in a paper in the Journal of the Royal Society of Medicine. Examining medical and legal approaches to the issue of capacity in such matters, he found that “mental capacity is not the sole determinant of what will happen when a patient chooses a course of treatment that doctors consider against the patient’s best interests.” Other factors included the views of relatives, “previous expressed views of the patient,” the opinions of medical staff, and the values of society as a whole.

Buchanan pointed out that acceptance of a patient’s medical decision by professionals and family depends in part on the complexity and gravity of the issue. The harder the choice, or the more grave the potential outcome, the higher the level of scrutiny to which any choice will be subjected. Legal opinions have also followed this logic, holding that “the more serious the decision, the greater the capacity required.”

Such scrutiny is in conflict with the value of autonomy, the ability of the individual to act freely in accordance with their own perceptions and belief. Buchanan says that in the context of medical consent, the importance of autonomy increases with the level of a person’s capacity.

While it is clear that these observations correctly describe how the real world works, it is disturbing that they reflect true disrespect of individual autonomy. If it is acceptable to drag clearly lucid people into court to measure their mental capacity for medical consent, why not question capacity for other decisions? The potential outcome of a poorly chosen marriage might be a devastating divorce, with tragic paths for children of the union. A business contract might eventually lead to unforeseen results which could end in someone’s lifetime ruin. Yet we do not find clearly lucid individuals brought into court in advance so they may be judged as to their ability to make those decisions. At most, poor outcomes in domestic or business pursuits might result in a later determination of incompetence.

Of course, in the area of medical treatment, a poor choice may result in permanent injury or death. For this reason, the law permits family, medical staff, and “other interested parties” the option of advance intervention in health care decisions. Such action is a direct negation of the individual’s right to choose in the most crucial and intimate of matters.

How to both assure competence and maintain autonomy?

From the standpoint of the medical profession, the appropriate emphasis should be on ethical and legal education for professionals to assure that the rights of individuals are not violated.

From the standpoint of the patient, there is no substitute for a properly drafted advanced medical directive or power of attorney which clearly sets forth his or her specific desires and which names an individual who can honestly, quickly, and accurately discern a patient’s wishes in the context of medical treatment. Such an individual can sustain the decision of a patient if a question of capacity arises.

The ability of a physician or of the state to override the wishes of a patient and to violate their body should be closely and exhaustively controlled. It should not depend on the subjective assessment of capacity made by someone else, regardless of their qualifications.


Buchanan, A. (2004). Mental capacity, legal competence and consent to treatment Journal of the Royal Society of Medicine, 97 (9), 415-420 DOI: 10.1258/jrsm.97.9.415

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