Current controversy J Med Ethics: first published as 10.1136/medethics-2019-105622 on 8 August 2019. Downloaded from Current controversies and irresolvable disagreement: the case of Vincent Lambert and the role of ‘dissensus’ Dominic Wilkinson, 1,2,3 Julian Savulescu1,3 1Oxford Uehiro Centre for ABSTRact There are contrasting immediate responses to Practical Ethics, University of Controversial cases in medical ethics are, by their very cases like that of Lambert. Some people read of his Oxford, Oxford, UK 2 case and react with horror at the idea of being kept John Radcliffe Hospital, Oxford, nature, divisive. There are disagreements that revolve UK around questions of fact or of value. Ethical debate alive indefinitely in a state of complete dependence 3Murdoch Children’s Research may help in resolving those disagreements. However, and lack of awareness. Others have the opposite Institute, Melbourne, Australia sometimes in such cases, there are opposing reasonable response. They respond with outrage at the idea of views arising from deep-seated differences in ethical stopping feeding and allowing to die a profoundly i Correspondence to values. It is unclear that agreement and consensus will disabled man, who does not appear to be suffering. Professor Dominic Wilkinson, A survey of the general public, published in 2014, Oxford Uehiro Centre for ever be possible. In this paper, we discuss the recent Practical Ethics, University of controversial case of Vincent Lambert, a French man, indicated that 40% supported withdrawal of treat- Oxford, Oxford OX1 1PT, UK; diagnosed with a vegetative state, for whom there ment from patients in VS, while 40% were unsure dominic. wilkinson@ philosophy. and 18% were opposed.8 A recent international ox. ac. uk were multiple court hearings over a number of years. Both family and health professionals were divided survey of the lay public found that 49% agreed Received 12 June 2019 or strongly agreed with withdrawal of treatment, about whether artificial nutrition and hydration should 9 Revised 10 July 2019 be withdrawn and Lambert allowed to die. We apply while 9% disagreed. In the same survey, two-thirds Accepted 12 July 2019 a ’dissensus’ approach to his case and argue that of those surveyed agreed or strongly agreed with withdrawal of treatment if they themselves were in the ethical issue most in need of scrutiny (resource 9 allocation) is different from the one that was the focus of a VS. attention. The recurrent nature of debate over treatment for patients in a VS suggests that it is unlikely that our communities will reach a common view on this The case of Frenchman Vincent Lambert is the contentious ethical issue. There then becomes a latest controversial example of disputed treatment question about how to deal with the issue of ethical for adult patients with profound brain injury.1 2 disagreement. Recently, following another contro- Lambert was seriously injured in a motorcycle acci- versial example of disputed treatment (the Charlie Gard case), we proposed a ‘dissensus’ framework dent in 2008, and subsequently diagnosed to be in 10 a vegetative state (VS). His wife, who was his legal that might be applied in such cases (box 2). In this http://jme.bmj.com/ paper, we examine the implications of dissensus for guardian, wished artificial nutrition and hydra- debates about treatment for patients like Vincent tion to be stopped and Vincent allowed to die. His Lambert. Our aim is not to settle those debates parents were strongly opposed to this. His case here. Rather, this analysis suggests that the most was heard multiple times in French and European important question to address may be different courts.3–5 In June 2014, the French Conseil d’Etat from the one that is most commonly the focus of (Supreme Administrative Court) concluded that ethical attention. on September 30, 2021 by guest. Protected copyright. Lambert’s doctors’ decision to withdraw artificial The first stage in the dissensus approach is to nutrition and hydration was lawful.6 The following separate out questions of individual benefit/harm year, the European Court of Human Rights found from questions of collective benefit/harm. As will that this decision did not breach Article 2 (the 6 become clear, the ethical approach to disagreement right to life) of the European Convention. Treat- is different in these two different situations. ment was withdrawn on 20 May 2019, but was reinstated within 24 hours when Lambert’s parents succeeded in a last minute legal appeal. The appeal IS CONTINUATION OR WITHDRAWAL OF court ordered treatment to recommence pending a TREatMENT BEST FOR THE PATIENT? review by a UN Committee on the Rights of Persons There are contrasting ethical arguments about treat- with Disabilities (UNCRPD).1 2 Then, on 28 June, ment for patients in a VS. © Author(s) (or their the French Cour de Cassation overturned the lower employer(s)) 2019. Re-use 7 permitted under CC BY. court ruling, allowing Lambert’s doctors to rein- In favour of withdrawal Published by BMJ. stitute their plan to sedate Lambert and withdraw Some pointed to the lack of benefit for Vincent treatment. Vincent Lambert died on 11th July, nine Lambert in continuing existence in a state of To cite: Wilkinson D, Savulescu J. J Med Ethics days after artificial nutrition was ceased. unconsciousness. Because he lacked any conscious Epub ahead of print: [please The Lambert case has obvious parallels with the include Day Month Year]. US case of Terri Schiavo, but there have been other i These contrasting reactions are not mutually exclu- doi:10.1136/ similar high-profile cases, over more than 40 years medethics-2019-105622 sive. Many people, including some family members, (box 1). might experience both sentiments.39 Wilkinson D, Savulescu J. J Med Ethics 2019;0:1–5. doi:10.1136/medethics-2019-105622 1 Current controversy J Med Ethics: first published as 10.1136/medethics-2019-105622 on 8 August 2019. Downloaded from precise detail and with the corresponding dates, was confirmed by Box 1 Controversial court cases relating to withdrawal of one of Mr Lambert’s brothers6 treatment from adults with profound brain injury (the dates below correspond to the dates of court hearings relating to If this is correct, continued treatment violated his prior life-prolonging treatment) autonomy, and seemed to frustrate Lambert’s right to have a say in his medical care and his right not to have his life prolonged in ► Vincent Lambert (France 2014–2019). a state that he would have regarded as deeply undesirable. It may ► Elena Englaro (Italy 1999–2008). be thought to deprive Lambert of his right to die with dignity,14 15 ► Terri Schiavo (USA 1998–2005). and to discriminate against him since, were he not so profoundly ► Tony Bland (UK 1993). disabled, he would have been able to refuse treatment. ► Nancy Cruzan (USA 1988–1990). ► Karen Ann Quinlan (USA 1975–1976). Against withdrawal However, it is not clear that artificial nutrition and hydration was ‘futile’ for Vincent Lambert.16 Such treatment had mani- 11 festly succeeded in the goals of providing nourishment and in interests, it was not in his best interest to keep him alive. If keeping him alive over the last 11 years. It may be that some treatment did not confer any positive benefit to Vincent, it 12 judge the quality of his life to be too low to warrant keeping him may be regarded as futile, or pointless. French legislation on alive, but others, notably Lambert’s parents, disagreed. Whether patient’s rights and end-of-life issues specifically direct doctors 3 it is ‘reasonably’ or ‘unreasonably’ obstinate to sustain life in not to continue treatment with ‘unreasonable obstinacy’, this this state is an ethical, not a scientific, question. While some, as includes treatment ‘n’ont d’autre effet que le seul maintien noted above, would have found his continued treatment undig- artificiel de la vie’ (having no effect other than to maintain life 17 18 13 nified, dignity is a deeply contested concept in bioethics. artificially). Others argued that Lambert’s essential human dignity remained In Vincent Lambert’s case, his wife maintained that while despite his profound disability, and that his life should have been he did not have a written advance directive, he had repeatedly protected ‘until its natural end’.19 expressed his wish not to be kept alive in a highly dependent The UNCRPD was due to hear a petition relating to the state. The Conseil d’Etat ruling had noted Lambert case. This committee might have had concern for the It is apparent …from the testimony of Mrs Rachel Lambert, rights of the severely disabled to receive life-prolonging medical that she and her husband, both nurses, had often discussed their treatment. The decision to withhold treatment from Lambert respective professional experiences… and that Mr Lambert had on was directly related to the extent of his brain injury. If he were several such occasions clearly voiced the wish not to be kept alive less severely disabled, artificial nutrition and hydration would artificially if he were to find himself in a highly dependent state. potentially bring benefits other than to maintain life artificially; The tenor of those remarks, reported by Mrs Rachel Lambert in there would not be a question of ‘unreasonable obstinacy’. As a consequence, the UNCRPD might have felt that the Conseil d’Etat decision represented discriminatory denial of healthcare on the basis of disability (and was thus arguably contrary to Box 2 The dissensus framework Article 25 of the UN Convention on the Rights of Persons with http://jme.bmj.com/ Disabilities).20 Background However, there is a potentially competing right. Article 12 It is valuable to seek agreement and consensus about important of the UN Convention emphasises the importance of advance issues in medical ethics.