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In the first Supreme Court case under the Mental Capacity Act 2005 ("the Act"), the court determined which principles should apply in assessing whether or not certain life-sustaining treatments were in the best interests of a patient who lacked capacity.
30 October 2013
Lord Neuberger (President), Lady Hale (Deputy President), Lord Clarke, Lord Carnwath and Lord Hughes
Mr James (the "appellant") was admitted to hospital in May 2012 following complications with a stoma fitted as part of his colon cancer treatment. He suffered serious complications which required admission to the critical care unit and placement on a ventilator. Thereafter, further complications ensued, leading to a deterioration of his neurological state. In July 2012 he was considered to lack capacity to make decisions about his medical treatment. Throughout the proceedings his condition fluctuated. Despite the deterioration in his quality of life, his family maintained that as he recognised and was pleased to see his family members during visits, he gained pleasure from his then quality of life and would have wished for his life to continue.
In September 2012 the respondent issued proceedings in the Court of Protection seeking declarations that it would be in the best interests of the appellant for specified, painful and/or deeply physical treatments to be withheld from him in the event of clinical deterioration. This was opposed by the appellant's family. The trial judge did not agree it was appropriate to make the declarations sought. The Court of Appeal, with the benefit of further evidence of the appellant's deteriorating health, reversed that decision and made the declarations sought.
The appellant sadly died on 31 December 2012. Given the importance of the issues involved and the marked differences in approach between the trial judge and the Court of Appeal, an appeal to the Supreme Court was allowed.
Lady Hale gave the leading judgment. She explained that medical treatment is lawful if there is consent. When a patient lacks capacity to consent, the Act states that treatment is lawful if it is in the patient's best interests. In those circumstances the Act empowers the court to do for that patient what he could do for himself if he had full capacity. It does not, however, allow the court to order doctors how to treat their patients. Accordingly, the issue in this appeal was whether it was lawful to give treatment, and not whether it was lawful to withhold treatment, to a patient lacking capacity [18-21].
The Mental Capacity Act Code ("the Code") states that certain life-sustaining treatments may not be in the best interests of a patient lacking capacity where treatment is futile, overly burdensome to the patient or where there is no prospect of recovery . The interpretation of this provision was at issue in this appeal.
The court began by stating that the starting point of the assessment is the presumption that it is in a person's best interests to stay alive. Further, when considering the patient's welfare, a broad approach should be taken, encompassing not only medical, but also social and psychological considerations .
The court went on to consider how the trial judge and the Court of Appeal assessed the best interests of the appellant.
The trial judge held that: (i) treatment is "futile" when it would be of no effect or when it could only return a patient to a quality of life which is not worth living; (ii) the question of how burdensome a treatment is has to be weighed against the benefits of continued existence; and (iii) the prospect of recovery did not mean recovery to full health, but rather, the resumption of life that the patient would regard as worthwhile .
The Court of Appeal: (i) found that the futility of treatment is to be judged by reference to the improvement or lack of improvement which it would bring to the general health of the patient; (ii) did not apply a balancing exercise when considering how burdensome treatment was; (iii) decided "no prospect of recovery" meant no prospect of recovering such a state of good health which would avert the looming prospect of death; and (iv) whilst recognising that the there should be a broad approach to the patient's welfare, other considerations must give way to medical interests [31-33]. Further, Arden LJ suggested that when in doubt as to a patient's wishes or as to whether treatment should be given, the court should apply an objective test, namely, what a reasonable patient would think .
The court disagreed with the Court of Appeal's approach to the principles and agreed with the trial judge's interpretation of the Code's provision. It also rejected Arden LJ's objective test in favour of taking into account the "patient's wishes and feelings, his beliefs and values or the things which were important to him... because they are a component on making the choice which is right for him as an individual human being" .
Although the court recognised that, at the time of the decision, the trial judge was entitled to conclude the declarations were inappropriate, given evidence of the appellant's further deterioration, it found the Court of Appeal was correct in making the declarations and dismissed the appeal .
The court unanimously decided in favour of a more human, individual approach over a purely medical one to the consideration of whether treatment is in a patient's best interests. Although very helpful, some of these principles are very subjective in nature and my suspicion is that future cases will be very fact-specific. The court's recognition that the trial judge was entitled to decide as he did serves as a warning against issuing similar proceedings in cases where the circumstances are "not fully predictable or fluctuating" .
Melina Padron, Doughty Street Chambers