Was there a winner at Aintree?

Bevan Brittan represented the Faculty of Intensive Care Medicine and the Intensive Care Society in the landmark Supreme Court case of Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67.  This is the first time the Supreme Court has considered the application of the Mental Capacity Act 2005 and a detailed commentary can be found below.

On 30 October 2013, the Supreme Court handed down its first judgment on the Mental Capacity Act 2005 and in doing so gave some useful guidance about how the Act should be interpreted, not only in relation to the withdrawal of treatment deemed to be 'futile' (the central issue in this case) but generally in respect of best interests.

The Supreme Court's intervention was necessary to cure a defective decision by the Court of Appeal.  The CA was deemed to have overturned the decision of the trial judge, Peter Jackson J, correctly, but for the wrong reasons. 

To answer the question posed by the title, therefore, the winner was the law and the clinicians affected by it, albeit by virtue of the family's unsuccessful appeal.  The effect of the Supreme Court's judgment is to put us largely back to where we were before this series of cases began but it is helpful to have the Supreme Court's endorsement of the current legal framework and the principles derived from it.

Bevan Brittan was instructed to represent the two national representative bodies for intensive care doctors, the Faculty of Intensive Care Medicine and the Intensive Care Society, who successfully applied to be formal Interveners in the case.  Working with these most respected of bodies, we gained a valuable insight into the pressures faced by clinicians, especially in ITUs, who, as a result of improvements in medical technology, are keeping people alive for longer and longer with the dilemma that simply being alive is not necessarily in the best interests of patients. 

Background to the case

Mr James was admitted to hospital in May 2012 and was subsequently diagnosed with pneumonia and chronic obstructive pulmonary disease. He deteriorated and was admitted to the critical care unit with multi-organ failure. In early July 2012, he showed signs of neurological impairment, consistent with symptoms of a stroke. He was diagnosed as being in a minimally conscious state and was assessed as lacking capacity to make decisions regarding his medical treatment. His clinical team applied to court to withhold invasive treatment in the event of future deterioration on the basis that it would be overly burdensome and futile and proposed that it would be in Mr James’ best interests.  His family opposed the withholding of treatment that would keep him alive.

Points to take from the judgment

Starting points and key considerations

• The legal authorities are all agreed that the starting point is a strong presumption that it is in a person’s best interests to stay alive.
• This is not, however, an absolute. There are cases where it will not be in a patient’s best interests to receive life-sustaining treatment. There will also be cases such as someone in a persistent vegetative state, like Anthony Bland was, where the continuation of treatment is of no benefit at all.
• Every patient, and every case, is different and must be decided on its own facts.
• In Re J, Lord Donaldson stated that account had to be taken of the pain and suffering and quality of life which the patient would experience if life were prolonged and also of the pain and suffering involved in the proposed treatment.

The role of the Court

• The Mental Capacity Act is concerned with putting the court in the shoes of the patient - and no more than that.  As the trial judge had said: “A patient cannot order a doctor to give a particular form of treatment, although he may refuse it. What the court can do is to withhold consent to treatment of which it disapproves and it can express its approval of other treatment proposed by the doctors."
• Essentially, 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.  However, once it has pronounced its decision, it does not have an associated power to order a doctor (or Trust, or other public authority in a different scenario) to deliver that which it deems to be in the person's best interests.

The assessment of best interests

• The purpose of the best interests test is to consider matters from the patient’s point of view, which is "not to say that his wishes must prevail, any more than those of a fully capable patient must prevail. We cannot always have what we want…. But 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."   
• There is a duty to consult with others who may be able to help clinicians understand what the patient would have wanted.
• The correct decision to be considered by clinicians and the court is not whether it would be in the patient's best interests to withhold a treatment, but whether it would not be in the patient's best interests to receive or to continue to receive a treatment. 
• If it is not in the patient's best interests to receive a treatment, then it follows that the treatment should not be given or should be withdrawn.  Indeed, it would be unlawful to do otherwise.
• Decision makers should not be quick to judge what is in someone's best interests, especially where the consequences of the decision are very serious and the patient's condition will or may fluctuate (this was the main reason why the trial judge did not grant the declarations about withdrawing treatment the first time around).
  
  

Futility and best interests (in addition to the above)

• The Mental Capacity Act Code of Practice states that it may be in the best interest of a patient not to receive life sustaining treatment where that treatment would be ‘futile’ or ‘overly burdensome' to the patient or 'where there is no prospect of recovery’.  The Supreme Court agreed that treatments would be futile if they were ineffective or of no benefit to the patient.
• In assessing the benefits of remaining alive, it is necessary to include in the balance the burdens of treatment but also to give great weight to the patient's family life.
• A treatment may bring some benefit to a patient even if it has no effect upon the underlying disease or disability.   The CA was wrong to conclude that “no prospect of recovery” means “no prospect of recovering such a state of good health as will avert the looming prospect of death if the life-sustaining treatment is given”.  There will be numerous examples where a patient is suffering from an incurable illness, disease or disability, and in these cases it is not very helpful to talk of recovering a state of “good health”. A patient’s life may still be very well worth living. Resuming a quality of life which the patient would regard as worthwhile is more readily applicable, particularly in the case of a patient with permanent disabilities.
• Treatment is not futile if it enables a patient to resume a quality of life that the patient would regard as worthwhile. The CA had set 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”.

Another important point to note

It was not part of the judgment, but rather was a learning point from working with a group of committed intensivists as part of the process, that courts (and lawyers generally) are unaware of what treatment in an ITU entails for a patient in terms of its discomfort and intolerability.  Whilst pain can be managed, loss of function and total dependency can have a profound effect on the individual and may influence the tipping point for best interests.  At the recent seminar on this case hosted by Thirty Nine Essex Street (a video of which should soon be appearing on their website), the Official Solicitor indicated that he would be taking a greater interest in this aspect of patient experience when representing the interests of those at the heart of the issue.