Aintree University Hospitals NHS Foundation Trust v James & Ors

The sole statutory test for treatment decisions concerning a person lacking capacity is that the decision must be in that person’s best interests. Guidance on whether treatment is futile, overly burdensome or offers no prospect of recovery informs, but does not replace, that test.

Life-sustaining treatment is futile where it offers no real prospect of curing or palliating the life-threatening illness, not merely where it may briefly avert a particular crisis. The court must weigh medical benefit and burden with the person’s wishes, feelings, values and welfare. Wishes are important but do not compel treatment that is extremely burdensome, therapeutically futile and unable to restore health sufficient to avert death.

DJ lacked capacity to make decisions about his medical treatment. He had profound and progressive multi-organ failure, recurrent infection, severe neurological injury and dependence on ventilation. The hospital sought declarations that, if he suffered a clinical deterioration, it would be lawful to withhold cardiopulmonary resuscitation, invasive circulatory support and renal replacement therapy.

Peter Jackson J in the Court of Protection found that DJ’s life retained value and refused the declarations, while indicating that further CPR was unlikely to be in his best interests. The hospital appealed urgently. The Court of Appeal admitted updated evidence showing a grave deterioration, allowed the appeal on 21 December 2012, and gave reasons after DJ’s death. The central issue was whether withholding the specified treatment would be in DJ’s best interests.

1. Appeal allowed unanimously. The court declared that, subject to the agreement of DJ’s clinical team and in the event of clinical deterioration, it would be lawful and in his best interests to withhold CPR, invasive circulatory support and renal replacement therapy.

2. Sir Alan Ward, with whom Laws LJ agreed, held that Mental Capacity Act 2005 s 1(5) supplies the sole ultimate test: best interests. The Code’s references to treatment that is futile, overly burdensome or without prospect of recovery are relevant guides, not cumulative legal conditions or a substitute for that statutory test.

3. The judge had adopted an unduly narrow meaning of futility. The issue was not whether an intervention could temporarily reverse a cardiac arrest or another immediate crisis. It was whether it offered therapeutic benefit by curing or palliating the life-threatening illness and improving the patient’s overall health. On the undisputed evidence, the proposed treatment would be futile in that sense, exceptionally burdensome, and offered no prospect of recovery to health sufficient to avert the looming prospect of death.

4. The court was required to determine the likely future emergency which the hospital had placed before it. The first-instance finding that further CPR was unlikely to be in DJ’s best interests conflicted with the refusal to make a prospective declaration.

5. Best interests embrace medical, emotional and other welfare matters. DJ’s courage, attachment to his family and wish to live had substantial weight. However, an informed assessment of his likely wishes would also have recognised his irreversible dependence, recurring deterioration, the burdens of treatment and the hopeless prognosis. Those matters outweighed the wish for further invasive treatment.

6. Quality of life and intolerability were relevant considerations, but not separate tests or a basis for valuing some lives as unworthy. Lady Arden concurred by placing particular weight on DJ’s wishes and autonomy. She concluded that a reasonable person with his medical condition and the risks of the proposed treatment would reject it.

• Court of Appeal (Civil Division) — allowed the hospital’s appeal and made the requested declarations: [2013] EWCA Civ 65.
• Court of Protection — Peter Jackson J declared that DJ lacked capacity concerning litigation and medical treatment, but refused declarations authorising the prospective withholding of the specified treatment.