15 Tuesday Apr 2014
This case deals with when it will be appropriate for treatment to be withheld, and how the best interests of a patient who lacks capacity should be assessed, within the framework of the Mental Capacity Act 2005. In summary, the Court decided (upholding the approach of the High Court, overturning the approach of the Court of Appeal although, for fresh evidence reasons, approving of the outcome of their decision) that:
(1) a treatment is not futile if it brings some benefit to the patient, even if it has no effect upon the underlying disease or disability,
(2) recovery does not mean a return to full health, it means the resumption of a quality of life that the patient would regard as worthwhile, and
(3) a patient’s best interests incorporate not only medical interests, but also the patient’s welfare in the widest sense.
The patient, David James, was admitted to hospital in May 2012 because of a problem with a stoma he had had fitted in 2001 as part of successful treatment for colon cancer. Following rectification of this problem, Mr James developed an infection exacerbated by chronic obstructive pulmonary disease, an acute kidney injury and persistent low blood pressure. Over the months that followed (throughout which he was an inpatient dependent on artificial ventilation), he suffered a stroke, a cardiac arrest, recurring infections, septic shock and multiple organ failure. From July 2012 he was deemed to lack capacity as a result of neurological deterioration, although he still took apparent pleasure from the visits of his family and was able to interact to a limited degree. In September 2012, the Trust issued proceedings in the Court of Protection, ultimately seeking a declaration that it would be in Mr James’s best interests for three treatments to be withheld in the event of clinical deterioration, namely (1) invasive support for circulatory problems; (2) renal replacement therapy and (3) CPR. The family did not agree that such treatment should be withheld.
The High Court Judge (Peter Jackson J) refused to make the requested declarations, on the basis that he was not persuaded that treatment would be futile or overly burdensome, or that there was no prospect of recovery (criteria laid down in the Mental Capacity Act Code of Practice). He took recovery to mean return to a quality of life the patient would regard as worthwhile, rather than return to full health. The Judge found that circumstances were unpredictable and Mr James’s family life was of the closest and most meaningful kind. The Trust appealed. Before that appeal was heard, Mr James suffered a further significant deterioration in health.
The Court Of Appeal allowed the appeal on the basis (per Sir Alan Ward, Laws LJ agreeing) that “recovery” required a state of health to be reached that would avert the looming prospect of death, and if treatment would be futile (offering no curative or palliative benefit) the patient’s wishes must give way to what is best in his medical interests. Arden LJ took a different approach, with the same result: where a patient’s actual wishes are in doubt, the court should assume his wishes would be those of the reasonable person, and a reasonable person would reject treatment that was futile or overly burdensome. The Court of Appeal therefore made the declarations sought by the Trust. Shortly after the Court of Appeal hearing, Mr James died but permission to appeal was granted to his widow.
Lady Hale gave the unanimous judgment of the Supreme Court.
She observed that the Court of Protection can only do what the patient would be able to do himself, if he had capacity. By a survey of the case law she set out the parameters that:
(1) a doctor cannot be forced to provide treatment that s/he does not think is clinically indicated for a patient, and conversely
(2) a doctor cannot lawfully provide treatment that is not in the best interests of the patient.
Accordingly, the Court cannot order either of these things. The key question for determination was thus whether it would have been in Mr James’s best interests to provide the three treatments. If the treatments would not have been in his best interests, the Court of Protection could not consent to them on his behalf and it would be lawful for them to be withheld (indeed, it would be unlawful for them to be provided).
The central part of the judgment, therefore, deals with how to determine what is in a patient’s best interests. The starting point is the strong presumption that it is in a person’s best interests to stay alive. From here, there are no general principles that can be applied: every case is different and must be decided on its own facts. However, Lady Hale was prepared to set out a route map for how that should be done:
“in considering the best interests of this particular patient at this 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 places of the individual patient and ask what his attitude to the treatment is or would be likely to be; and they must consult others who are looking after him or interested in his welfare, in particular for their view of what his attitude would be.”
She held that the first instance judge had been right that:
(4) a treatment is not futile if it brings some benefit to the patient, even if it has no effect upon the underlying disease or disability
(5) recovery does not mean a return to full health, it means the resumption of a quality of life that the patient would regard as worthwhile: crucially, “it is not for others to say that a life which the patient would regard as worthwhile is not worth living” 
(6) best interests incorporates not only medical effects, but also the patient’s welfare in the widest sense
(7) caution should be exercised if contemplating making declarations in circumstances that are unpredictable.
Accordingly, the Court of Appeal’s assessment of “futility” and “recovery” was wrong.
In terms of whether the treatments were “overly burdensome”, she endorsed the trial Judge’s view that the burdens had to be weighed against the benefits of continued existence, and this assessment must take account of the patient’s broader best interests. This includes, for instance, their family lives and any preferences they have expressed. She disagreed with the Court of Appeal that the test of the patient’s wishes was an objective one. It is not what the reasonable patient would think, but what this particular patient would want. She stated that, notwithstanding the difficulties there may be in determining the past or present views of the patient:
“insofar as it is possible to ascertain the patient’s wishes and feelings, his beliefs and values or the things which were important to him, it is those which should be taken into account because they are a component in making the choice which is right for him as an individual human being.”
Despite approving of the trial judge’s approach, Lady Hale thought she might have found that CPR, being an especially physical treatment, would be overly burdensome for Mr James. But she observed that “in a case as sensitive and difficult as this, whichever way the judge’s decision goes, an appellate court should be very slow to conclude that he was wrong”.
Conversely, despite disapproving the approach of the Court of Appeal, Lady Hale found that, because of the significant deterioration suffered by Mr James before the appeal hearing, the Court of Appeal were in fact correct to allow the appeal and make the declarations they did.
The clarification this judgment provides of the meaning of “futility”, “recovery” and “overly burdensome” in the Mental Capacity Act Code of Practice is important. It sets out a clear framework for what kind of medical results will be expected to weigh in favour of treatment, but also what personal considerations need to be taken into account when assessing whether treatment should be provided.
Perhaps the most significant element of this judgment is the weight placed on of the role of the patient’s (or their family’s) wishes in determining what constitutes a worthwhile recovery, and what is in their best interests. Lady Hale’s exposition of this will be relevant to patients with capacity as well as those, like here, whose interests fall to be considered under the Mental Capacity Act. It sets out a clear imperative for participation and consultation with patients and their families in making sensitive decisions about their future healthcare.