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Rasouli - Opportunity to Carve out PVS with Bright Lines

Posted May 22 2011 10:04am
After reading the physician/appellant brief in Rasouli, it struck me that they were asking for far too much judicial deference.  The physicians are asking for permission to unilaterally withdraw (without consent) life-sustaining treatment when they determine (all by themselves) that it would provide no benefit.  The process (described on p.10 of their factum) does not even include ethics committee review.  It certainly seems as though the EPC brief was correct to point out the real lack of due process and safeguards.  

But on further reflection, I think that the physicians/appellants’ proposal is reasonable if it is limited to the facts of the case.  In other words, their position seems reasonable if states as follows "When we determine with a high level of medical certainty that a patient is PVS, then we can stop treatment without consent."  In that situation, the internal processes are purely medical and value-free.  Second opinions and the opportunity for independent opinions are sufficient.  The typically controversial judgment about the benefit or worthwhileness of medical intervention need not be addressed on a case-by-case basis with respect to a patient in PVS.  The court might announce an ex ante rule (which would be well-supported by the literature) that patients in PVS cannot benefit.  In sum, the court might give providers permission to unilaterally withhold or withdraw treatment from patients who are in PVS.  
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