Aintree University Hospitals NHS Foundation Trust v James

For an adult lacking capacity, the court asks whether proposed medical treatment is in that person’s best interests, not whether withholding it is. The court cannot compel a clinician to provide treatment which the clinician does not offer.

Best interests are assessed holistically. Relevant matters include medical, social and psychological welfare; the treatment’s burdens and prospects; its likely outcome; the patient’s wishes, feelings, beliefs and values; and the views of carers. There is a strong but rebuttable presumption in favour of preserving life.

“Futile” treatment is ineffective or offers the patient no benefit; it need not cure the underlying illness. “Recovery” may mean restoring a quality of life which the patient would regard as worthwhile. The patient’s perspective is personal, although the patient’s wishes are not decisive. Prospective declarations require caution where circumstances fluctuate.

Mr James lacked capacity to decide about medical treatment and was gravely ill in intensive care. The NHS trust sought declarations under the Mental Capacity Act 2005 that invasive circulatory support, renal replacement therapy and cardiopulmonary resuscitation could lawfully be withheld if his condition deteriorated sufficiently to require them.

Peter Jackson J refused the declarations on the evidence then available: [2012] EWHC 3524 (COP). After a marked deterioration, the Court of Appeal received fresh evidence, allowed the trust’s appeal and made the declarations: [2013] EWCA Civ 65, [2013] Med LR 110. Mr James subsequently died, but his widow received permission to appeal because of the importance of the differing approaches below.

The central questions concerned the correct formulation of the best-interests inquiry, the meaning of “futility” and “recovery”, the relevance of the patient’s own perspective, and the circumstances in which prospective declarations about life-sustaining treatment should be made.

1. Appeal dismissed unanimously. Lady Hale, with whom Lord Neuberger, Lord Clarke, Lord Carnwath and Lord Hughes agreed, held that the Court of Appeal reached the correct result on the fresh evidence, but for the wrong reasons. Peter Jackson J had applied the correct legal principles and reached a result open to him on the earlier evidence.

2. The Court of Protection has no greater power than a patient possessing capacity. A patient may refuse treatment but cannot require a doctor to provide a particular treatment. The court therefore determines whether treatment which clinicians propose is in the patient’s best interests; it does not direct clinicians to administer treatment or decide questions of negligence or NHS policy.

3. The fundamental question is whether giving or continuing treatment would be lawful and in the patient’s best interests. It is not whether death or the withholding of treatment would be in those interests. If treatment is not in the patient’s best interests, the court cannot consent on the patient’s behalf. Giving it would be unlawful, while reasonable and non-negligent withholding or withdrawal would breach no duty. The approach in Airedale NHS Trust v Bland [1993] AC 789 was applied.

4. Best interests under the Mental Capacity Act 2005 require an individual and holistic assessment. Decision-makers must consider:

   • the patient’s medical, social and psychological welfare;
   • the nature and burdens of the proposed treatment and its prospects of success;
   • the outcome which treatment is likely to produce;
   • the patient’s actual or likely attitude, wishes, feelings, beliefs and values; and
   • the views of carers and others interested in the patient’s welfare.

   The inquiry remains one of best interests rather than substituted judgment. The patient’s preferences are important but do not necessarily prevail.

5. There is a strong presumption that remaining alive is in a person’s best interests, but it is not absolute. “Futile” treatment means treatment which is ineffective or confers no benefit on the patient. Treatment can benefit a patient even if it neither cures nor palliates the underlying illness. “Recovery” does not require restored good health; it may consist of resuming a quality of life which the particular patient would regard as worthwhile. No universal threshold of intolerability replaces the statutory balancing exercise.

6. The trial judge was entitled to decline prospective declarations while the patient’s condition remained fluctuating and their future application was uncertain. On the later evidence, however, the prospect of regaining even the previous quality of life was very slight, while resuscitation carried a substantial risk of further harm. It was then no longer premature to declare that attempting to restart the patient’s heart would not be in his best interests. The Court of Appeal’s declaration therefore remained effective and the appeal was dismissed.

1. United Kingdom Supreme Court: The widow’s appeal in Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67 was dismissed unanimously. The Court held that the Court of Appeal reached the correct result on the fresh evidence, although its statements of legal principle were erroneous.
2. Court of Appeal: The trust’s appeal was allowed and declarations were made after the court received evidence of a substantial deterioration in the patient’s condition: [2013] EWCA Civ 65, [2013] Med LR 110.
3. Court of Protection: Peter Jackson J refused the trust’s requested declarations because, on the evidence then available, it was premature to conclude that the treatments would not be in the patient’s best interests: [2012] EWHC 3524 (COP).