Supreme Court weighs in on patient’s best interests and the meaning of futility
3 November 2013
The Supreme Court has given judgment in the first case to come before it under the Mental Capacity Act 2005. The sole judgment was given by Lady Hale (Deputy President of the Court), with whom Lord Neuberger, Lord Clarke, Lord Carnwath and Lord Hughes.
The case concerned best interests decisions in the case of a patient lacking capacity. The patient, David James, had been admitted to hospital in May 2012 aged around 68 because of a problem with a stoma he had had fitted in 2001 during successful treatment for cancer of the colon. The problem was soon solved but he acquired an infection which was complicated by the development of chronic obstructive pulmonary disease, an acute kidney injury and persistent low blood pressure. He was admitted to the critical care unit and placed on a ventilator.
He subsequently suffered some severe setbacks, including a stroke and recurrent infections, and his condition fluctuated. After July 2012, deterioration in his neurological state meant he was considered to lack capacity to make decisions about his medical treatment. However, he appeared to recognise and take pleasure in visits from his wife and family and his friends. In September 2012 Aintree issued proceedings in the Court of Protection seeking declarations that it would be in the best interests of Mr James for specified treatments to be withheld from him in the event of a clinical deterioration. These were painful and/or deeply physical treatments such as cardiopulmonary resuscitation (CPR). Mr James’ family took a different view from the clinicians, believing that, while he would never recover his previous quality of life, he gained pleasure from his present quality of life and would wish it to continue.
The Mental Capacity Act Code of Practice provides that it may be in the best interests of a patient in a limited number of cases not to give life-sustaining treatment ‘where treatment is futile, overly burdensome to the patient or where there is no prospect of recovery’, even if this may result in the person’s death. The trial judge interpreted these words as inapplicable to treatments which would enable Mr James to resume a quality of life which he would regard as worthwhile: they did not have to return him to full health. He held that it would not be appropriate to make the declarations sought.
The Court of Appeal allowed the hospital’s appeal –  EWCA Civ 65 – and made a declaration in similar terms to that sought by the hospital, on 21 December 2012. It held that futility was to be judged by the improvement or lack of improvement which the treatment would bring to the general health of the patient, and ‘recovery’ meant recovery of a state of health which would avert the looming prospect of death.
By this time Mr James’ condition had deteriorated further. Mr James suffered a cardiac arrest and died on 31 December 2012.
The Supreme Court gave his widow permission to appeal notwithstanding this, in view of the importance of the issues and the different approaches taken in the courts below to the assessment of the patient’s best interests.
The Supreme Court unanimously held that the trial judge applied the right principles and reached a conclusion which he was entitled to reach on the evidence before him. However, the Court of Appeal were right to reach the conclusion they did on the basis of the fresh evidence before them, given that there had been such a significant deterioration in Mr James’ condition that the time had indeed come when it was no longer in his best interests to provide the treatments. The prospect of his regaining even his previous quality of life was by then very slim. The Court of Appeal had therefore been correct to allow Aintree’s appeal and technically the appeal was dismissed.
Lady Hale explained that section 15 of the 2005 Act provides that the court may make declarations as to whether a person has or lacks capacity, and as to the lawfulness of any act done or yet to be done in relation to that person. The Act is concerned with enabling the court to do for a patient what he could do for himself if of full capacity, but goes no further. A patient cannot order a doctor to give a particular form of treatment (although he may refuse it) and the court’s position is no different.
However, any treatment which doctors do decide to give must be lawful. Generally it is the patient’s consent which makes invasive medical treatment lawful. If a patient is unable to consent it is lawful to give treatment which is in his best interests. The fundamental question is whether it is in the patient’s best interests, and therefore lawful, to give the treatment, not whether it is lawful to withhold it.
The starting point is the strong presumption that it is in a person’s best interests to stay alive. Lady Hale cited the Court of Appeal judgment of Sir Thomas Bingham MR in the well-known case of Airedale NHS Trust v Bland at 808:
“A profound respect for the sanctity of human life is embedded in our law and our moral philosophy”
But she noted that the authorities were agreed that this is not an absolute; there are cases where it will not be in a patient’s best interests to receive life-sustaining treatment.
Lady Hale observed that the courts had been reluctant to lay down general principles which might guide the decision.
“The most that can be said, therefore, is that in considering the best interests of a particular patient at a particular time, decision-makers must look at his welfare in the widest sense, not just medical but social and psychological; they must consider the nature of the medical treatment in question, what it involves and its prospects of success; they must consider what the outcome of that treatment for the patient is likely to be; they must try and put themselves in the place of the individual patient and ask what his attitude is or would be likely to be; and they must consult others who are looking after him or interested in his welfare.
Lady Hale considered that the first instance judge had been right:
- to consider whether the proposed treatments would be futile in the sense of being ineffective or being of no benefit to the patient;
- to weigh the burdens of treatment against the benefits of a continued existence, and give great weight to Mr James’ family life, which was “of the closest and most meaningful kind”; and
- to be cautious in circumstances which were fluctuating.
A treatment may bring some benefit to a patient even if it has no effect upon the underlying disease or disability. It was not futile if it enabled a patient to resume a quality of life which the patient would regard as worthwhile. The Court of Appeal had been wrong to reject the judge’s approach.
The Supreme Court also considered that the Court of Appeal had been wrong to suggest that the test of the patient’s wishes and feelings was an objective one, namely what the reasonable patient would think. Insofar as it was possible to ascertain the patient’s wishes and feelings, his beliefs and values or the things which were important to him, these should be taken into account because they were a component in making the choice which was right for him as an individual human being.
Although the Supreme Court’s judgment did not influence Mr James’ own case, due to his death in December 2012, the judgment reinforces important principles when it comes to making best interests decisions.
First, that the benefit of treatment to a patient is not confined to treatments which have effect upon the underlying disease or disability. Lady Hale commented that “it is setting the goal too high to say that treatment is futile unless it has ‘a real prospect of curing or at least palliating the life-threatening disease or illness from which the patient is suffering’”. Rather, “a treatment may bring some benefit to the patient even though it has no effect upon the underlying disease or disability”. This may particularly apply where a patient is close to death and the object is to make his or her dying as comfortable and as dignified as possible, rather than to take invasive steps to prolong life. Some patients may not be in a position to return to “good health” but this may not exclude resuming a quality of life which the patient would regard as worthwhile.
Second, the case makes clear that the very purpose of the best interests test is to consider matters from the particular patient’s point of view; there is no room for an “objective” or “reasonable patient” test. This does not mean that it will be easy to ascertain, in a particular case, what an incapable patient’s wishes are; but that remains the difficult and important job of the Court of Protection.
In news reports on the case, Mr James’ family are said to be considering a further appeal to the European Court of Human Rights, but it is not clear on what basis.
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