Severe brain injury and consciousness
Commonly diagnosed prolonged disorders of consciousness include that of a persistent vegetative state and a minimal awareness state.
Claimants who have sadly suffered a severe brain injury may enter a state of unconsciousness, which can last for many years. Commonly diagnosed prolonged disorders of consciousness include that of a persistent vegetative state (where a person is thought to be without awareness) and a minimal awareness state (where a person displays low but discernible levels of awareness).
The management of a claimant with a prolonged disorder of consciousness can present their loved ones and clinicians with complex decisions about whether their needs are best met within a specialised clinical setting or within their own suitably adapted home (often with the aid of a large interim payment and an expensive care regime). A claimant’s assessed level of consciousness may also help determine the appropriate rehabilitative and treatment regime and even whether consideration should be given to withdrawing artificial assistance, such as nutrition and hydration.
In diagnosing a disorder of prolonged consciousness, clinicians primarily rely on a specialist multi-disciplinary team observing and assessing reactions and responses that may suggest an awareness of self or the environment, over an extended period. Views are also sought from family members and carers and consideration is given to factors that may prevent a claimant from overtly reacting or responding to stimuli or commands. Assessing consciousness is inevitably difficult and there is an inherent risk of misdiagnosis given the propensity to miss or misinterpret inconsistent and subtle signs of awareness.
Of interest is the recent article written by the neurologist Professor Neil Scolding and others in Brain: A journal of neurology, which questions the limited role of advanced neuroimaging and electrophysiology techniques, such as functional MRI and bedside EEG, in detecting levels of consciousness. The authors suggest that neuroimaging research indicates that around 20% of patients with a prolonged disorder of consciousness may display signs of consciousness and retain sufficient cognitive function to allow them to follow commands in a neuroimaging context. If a significant percentage of these patients are proven to be covertly conscious, this could have profound implications not only as to how they should be clinically managed but also in relation to how the parties conduct any personal injury claim which arises out of the traumatic brain injury. Going forward, will those who act for defendants be faced with frequent requests to fund expensive regular neuroimaging over a claimant’s perhaps long lifetime to help understand whether the claimant has capacity or at least the cognitive ability to express their wishes in relation to a particular decision? Will defendants also be faced with calls to fund more expensive and prolonged specialist rehabilitative and ongoing treatment regimes involving multi-disciplinary input, or increasing requests for the claimant to be cared for at home?
The UK’s national clinical guidelines on prolonged disorders of consciousness were updated in 2020. They rule out the use of advanced brain imaging and electrophysiology techniques as a routine diagnostic and prognostic tool, concluding that the significance of the findings from the small number of patients who presented as being in a vegetative state, but demonstrated covert responses within a functional MRI scanner, is ‘as yet unclear’. The 2018 Guidelines issued by the American Academy of Neurology also state that there was insufficient evidence to form a view as to the routine clinical use of functional neuroimaging in detecting conscious awareness in vegetative state patients. However, the American Guidelines permit clinicians to use functional MRI or electrophysiological testing to help to test for awareness in certain circumstances, including where there is continued uncertainty of the level of consciousness after the standard neurobehavioural assessments have concluded or where factors are present that may impact on the patient’s ability to respond overtly.
Larger scientific studies are required to understand better the significance of advanced neuroimaging and electrophysiological techniques in detecting covert consciousness. Only when further clinical data is available and thoroughly clinically evaluated, can we identify the impact of these advanced techniques on managing claims brought on behalf of claimants in a state of prolonged unconsciousness. Given the potential ramifications to how we handle these claims, it is in all our interests to keep an eye on the emerging scientific data.