I came across a very interesting decision by the United Kingdom Supreme Court, which is likely to spark some interesting debates - Aintree University Hospitals NHS Foundation Trust (respondent) vs James (appellant).
The groundbreaking decision is the first of its kind from the Supreme Court in relation to the Mental Health Capacity Act 2005. The judgment was delivered on October 30, 2013.
David James was seriously ill and in the critical care unit at the hospital. Based on the medical evidence, his prospects for leaving the critical care unit and the hospital were said to be very low. Among other things, he was completely dependent on artificial ventilation, daily care could cause severe discomfort, his risk of infection was high and there were prospects for further multi-organ failure.
In September 2012, the hospital trust issued proceedings in the Court of Protection, seeking declarations (1) that Mr James lacked capacity to consent to or refuse treatment of any kind; and (2) that it would be in his best interests for four specified treatments to be withheld "in the event of a clinical deterioration". Eventually, the action was limited to three treatments; namely invasive support for circulatory problems, renal replacement therapy and cardiopulmonary resuscitation.
The unanimous view of the clinical team was that it would not be in Mr James' best interests to receive those treatments, should his condition deteriorate to the extent that he needed them. James' family did not agree. They felt that he would continue to pull through each infection and that the positive attitude he had about his cancer treatment suggested that he would have taken the same approach to the more recent problems.
Moreover, the family argued that he still got a lot of enjoyment from seeing his family and close friends.
The judge at first refused the declarations, while the Court of Appeal granted them. James died before the Court of Appeal delivered its ruling, but the Supreme Court gave the widow permission because the issues are considered to be very important.
The sole judgment was delivered by Baroness Hale, who reviewed Section 15(1) of the act, which provides that the court may make declarations as to whether a person has or lacks capacity, either in relation to a specified decision or in relation to specified matters, and as to the "lawfulness or otherwise of any act done, or yet to be done, in relation to that person".
In accepting the trial judge's approach to the matter, Baroness Hale highlighted the following points:
1 This act is concerned with enabling the court to do for the patient what he could do for himself if of full capacity, but it goes no further. On an application under this act, therefore, the court has no greater power than the patient would have if he were of full capacity. The judge said, "A patient cannot order a doctor to give a particular form of treatment, although he may refuse it. The court's position is no different".
2 The court's role is to decide whether a particular treatment is in the best interests of a patient who is incapable of making the decision for himself. It cannot demand that a doctor administer a particular form of treatment.
3 Any treatment which doctors decide to give must be lawful, but if a patient is unable to consent, it is lawful to give treatment which is in his best interests. The fundamental question is, therefore, whether it is in the patient's best interests, and therefore lawful, to give the treatment, not whether it is lawful to withhold it.
4 The presumption is that it is in a person's interest to stay alive.
5 The court must weigh the burdens of treatment against the benefits of a continued existence, and give great weight to the patient's family life. A treatment could benefit a patient although not treating the underlying medical condition.
6 A treatment would not be considered futile if it allowed a patient to resume a quality of life he would have considered to be worthwhile. Where it is possible to ascertain the patient's desires and wishes, they should be taken into account. The test is not an objective one.
Despite these findings, Baroness Hale upheld the Court of Appeal's decision, because at the time the appeal was heard, James' condition had deteriorated to the extent that it was no longer in his best interest to provide the treatments and the prospect of regaining his previous quality of life was very slim.
Sherry Ann McGregor is a partner and mediator in the firm of Nunes, Scholefield, DeLeon & Co. Please send your comments and questions to firstname.lastname@example.org or email@example.com on twitter @lawsofeve.