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The correct question to be answered by those authorised to make best interests decision about medical treatment under the Mental Capacity Act 2005 is whether the provision, rather than withholding or withdrawal, of treatment is in the patient's best interests.
30 October 2013
Lord Neuberger (President of the Supreme Court), Lady Hale (Deputy President of the Supreme Court), Lord Clarke, Lord Carnwath and Lord Hughes
(1) Mr James had complex medical needs and was assessed as being in a minimally conscious state. The Trust sought declarations from the Court of Protection that Mr James lacked the capacity to make decisions as to medical treatment, and that it was in his best interests to withhold certain medical interventions in the event of a deterioration in his condition. The Court of Protection declined to make the best interests declarations sought, but the Court of Appeal did make the declarations. Mr James died shortly after the Court of Appeal hearing, but the Supreme Court granted permission to appeal given the importance of the issues and the difference in approach between the lower courts.
(2) Lady Hale JSC (with whom the rest of the Court agreed) held: (1) Consent is required to make the provision of medical treatment lawful. The Court can only give consent on behalf of a patient who lacks capacity, where it considers that the treatment would be in the patient's best interests. The correct approach, therefore, is to determine whether it would be in the patient's best interests to be provided with the treatment, rather than whether those interests would be best served by withholding treatment. (2) The judge had adopted the correct approach to the guidance in paragraph 5.31 of the Code of Practice:
(i) Treatment should not be considered futile solely on the basis that it would not improve the patient's general health. If treatment would be effective in treating a particular condition or bring benefit to the patient, it was not futile;
(ii) The judge was right to find that ‘recovery does not mean a return to full health, but the resumption of a quality of life which Mr James would regard as worthwhile' ; and
(iii) ‘The purpose of the best interests test is to consider matters from the patient's point of view' .
This meant that the patient's likely views on the treatment and its potential effects should be considered, as well as wider issues. (3) In the light of the new information before the Court of Appeal as to Mr James' condition, that Court had been correct to grant the declarations. The trial judge had properly directed himself.
 - Introduction
 -  - The facts
 -  - The proceedings
 -  - The law
 -  - Deciding upon best interests
 -  - How the judge and the Court of Appeal interpreted the patient's best interests
 -  - Discussion
 -  - Conclusions
(1) Trust Special Administrator appointed to South London Healthcare NHS Trust and (2) Secretary of State for Health v (1) London Borough of Lewisham and (2) Save Lewisham Hospital Campaign Ltd  EWCA Civ 1409; (2013) PLLR 128
Statutory interpretation - meaning of ‘in relation to the trust' - changes to hospital services - National Health Service Act 2006, Chapter 5A, ss 65F(1), 65I(1) and 65K(1).
The scope of a Trust Special Administrator's power to take action ‘in relation to the trust' (section 65 of the National Health Service Act 2006) was limited to action in relation to the particular trust to which he or she had been appointed.
8 November 2013
Court of Appeal
Master of the Rolls, Sullivan and Underhill LJJ
(1) The appellant Trust Special Administrator (TSA) was appointed by the second appellant Secretary of State (SSH) to exercise the functions of the South London Healthcare Trust (SLHT). The respondents successfully challenged the TSA's report, and the SSH's decision to adopt the report, insofar as it made recommendations that services provided by another trust (LHT) at Lewisham Hospital (LH) should be reconfigured as part of the solution to the problems at SLHT.
(2) The appellants challenged the decision of Silber J that the words ‘action ... in relation to the trust' in sections 65F(1), 65I(1) and 65K(1) of the National Health Service Act 2006, limited the TSA's remit to the trust over which he was appointed, the SHLT. The appeal was on the ground that the judge had interpreted the power too narrowly.
(3) Sullivan LJ (with whom the Master of the Rolls and Underhill LJ agreed) held: (i) the words ‘in relation to' are capable of having a narrower or broader meaning depending on the context. In the present context, where NHS Trusts are separate legal entities and the TSA is appointed to exercise the functions of a particular Trust, the ordinary and natural meaning is the narrower meaning. The TSA's powers were limited to action which affects or concerns SLHT and cannot be extended to other Trusts. (ii) The absence of any requirement for the TSA to consult other Trusts in respect of any recommendations that he may make is a strong indication that Parliament did not intend the TSA to have any powers in relation to any Trust other than that to which he was appointed. (iii) The desirability of TSAs having powers to make recommendations in relation to Trusts other than those to which they are appointed is a matter for Parliament. (iv) The TSA's report and the SSH's decision were ultra vires insofar as they applied to the LHT and LH.
 -  - Introduction
 - Factual background
 - Statutory framework
 - The issue
 - The judgment
 -  - The appeal
 -  - Discussion
 -  - Conclusion