Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67

The hospital, where a gravely ill man (Mr James) was being treated, asked for a declaration that it would be in his best interests to withhold certain life-sustaining treatments from him. It having been uncontentiously agreed that Mr James lacked the capacity to consent to or refuse treatment of any kind, the Court of Protection was left to decide whether it would be in his best interests for four specified treatments to be withheld “in the event of a clinical deterioration”.

The judge concluded that it would not be appropriate to make the declarations sought, having not been persuaded that treatment would be futile or overly burdensome or that there was no prospect of recovery. The judge also felt that arguments in favour of the declaration undervalued the non-medical aspects of Mr James’ situation, whilst believing that the absence of a case for making an absolute decision at the time did not exist, due to the circumstances which were not fully predictable or fluctuating.

The Trust appealed following a significant deterioration in his condition (only 15 days later), and the Court of Appeal allowed the appeal and made a declaration in similar terms to that sought by the Trust. On 31st December 2012, Mr James suffered a cardiac arrest and he died and his widow was allowed to appeal because of the public importance of the issue.

The Court emphasised that the Mental Capacity Act only enabled the Court of Protection to do for the patient that which the patient could already do for him or herself, which does not extend to telling a medical professional what to do, based on wants rather than needs itself.

The next key question related to the way in which the “best interests” assessment was to be conducted. In following Lord Browne-Wilkinson’s dictum in Bland, it was agreed that the critical decision was to be whether or not it was in the best interests of Mr James to continue the invasive medical treatment. This form was preferred instead of the question “Is it in Mr James’s best interests that he should die?”, which, it was suggested, presupposed that it is automatically lawful to perpetuate life for its own sake.

The test is not what a reasonable doctor would do, as in negligence law, but best interests, from a subjective perspective.

“The advantage of a best interests test was that it focused upon the patient as an individual, rather than the conduct of the doctor, and took all the circumstances, both medical and non-medical, into account.”

The need for allowing greater flexibility in this area was similarly reiterated by Hedley J (Portsmouth Hospitals NHS Trust v Wyatt), who argued that “[t]he infinite variety of the human condition never ceases to surprise and it is that fact that defeats any attempt to be more precise in a definition of best interests”.

This examination of all of the patient’s situational factors also incorporated the views of carers and other interested parties regarding the patient’s welfare, whilst continuing to affirm that this is still a “best interests” rather than a “substituted judgment” test, but one which accepts that the preferences of the person concerned are an important component in deciding where his best interests lie.

In examining what would be in the best interests of Mr James, it was accepted that, whilst there remained a strong presumption that it is in a person’s best interests to stay alive, this remained rebuttable. This belief matched the guidance contained within the Mental Capacity Act Code:

“There will be a limited number of cases where treatment is futile, overly burdensome to the patient or where there is no prospect of recovery. In circumstances such as these, it may be that an assessment of best interests lead to the conclusion that it would be in the best interests of the patient to withdraw or withhold life-sustaining treatment, even if this may result in the person’s death.”

Then, in elaborating upon the means by which “best interests” should be assessed, Peter Jackson J had followed Lord Goff’s approach in Bland by resolving the ambiguity surrounding the word “futile” in the Code’s guidance by taking it to refer to treatment which was of no benefit at all to the patient. To this extent, a “recovery”, far from requiring a return to full health (which was said to be “setting the goal too high”), was said to signify the resumption of a quality of life which Mr James would regard as worthwhile. This meant that the burdens of Mr James’s medical treatment had to be weighed against the benefits of continued existence, in giving due regard to the patient’s welfare in the widest sense. One would have to consider the pain and suffering that the patient would experience if their life were prolonged, the impact of this upon their quality of life, and also the pain and suffering involved in the proposed treatment (Lord Donaldson, Re J). This stressed the importance of the principle that it is not for others to say that a life which the patient would regard as worthwhile is not worth living (Re J), highlighting the flaws in talking in terms of return to a state of “good health” in relation to patients suffering from incurable illnesses, given that the patient’s life may still be very well worth living, nonetheless.

And so, by concluding that the burdens of treatment had to be weighed against the benefits of continued existence, in order to assess what would be in Mr James’s best interests, it was found that the Court of Appeal albeit for the wrong reasons, and preferring the trial judge’s approach to the law, was correct to allow the appeal and make the declarations they did, in light of the fresh evidence which was before them,. In light of Mr James’s significant deterioration, not only were the prospect of him regaining his previous quality of life very slim, but there was also a severe risk that the treatment would make matters worse.

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