The minimally conscious state: A challenging (sub) group for decision-making in people who lack capacity

The minimally conscious state (MCS) is a paradigmatic category of mental disability. Absent a valid and applicable advance refusal, all decisions must be made in patients’ “best interests.” This includes decisions about clinically assisted nutrition and hydration (CANH).
Following a definitive diagnosis of permanent vegetative state the law is well settled that withdrawal of CANH will be in the person’s best interests. There is no such certainty for MCS. On broadly similar facts CANH was held to be in the best interests (W v M), whereas in M v N withdrawal of CANH was lawful. In W v M the sanctity of life was the central concern whereas M v N emphasised N’s precedent autonomy as evidenced by family views. Although both decisions were concerned with patients in MCS, opposite conclusions were reached. Decision-making is challenging because MCS represents a wide spectrum of disordered consciousness. While it may be too high to state that decisions are arbitrary, it is evident that variation exists as to how decisions are reached. The emergent concern is that some patients be disadvantaged inadvertently in certain circumstances. An ethico-legal framework is proposed for principled decision-making to enhance consistency of approach for people in MCS.