The Court of Appeal has held that the wishes and feeling of a critically ill patient who lacks mental capacity to make a decision about his treatment, cannot be ascertained, he should be regarded as having the wishes and feelings of a reasonable person. Furthermore, when considering whether treatment is futile, the Court has held that what must be established is that treatment will cure or at least alleviate a patients's life threatening disease or condition.
The Court of Appeal judgment in David James-v-Aintree may not be the final word in this case. I understand that the family will seek permission to appeal to the Supreme Court. However, as it stands the judgment seems to me to represent a significant development of the law in relation to end of life treatment decisions.
I cannot do justice in a blog to the judgments of Peter Jackson J at first instance, and of Sir Alan Ward in the Appeal. I will try to give a flavour of the evidence in the case and the key points of the judgments.
Mr James was in a critical condition. He had suffered infection following a colostomy he had undergone for the treatment of colon cancer. He suffered multi-organ failure and required critical care including ventilation. By the time of the court hearing he was described as being in a minimally conscious state. A pattern had developed of tentative recoveries interrupted by recurrent infections leading to lowering of blood pressure, septic shock and multiple organ failure.
The Trust responsible for Mr James' care sought a declaration for permission not to give resuscitation and and life saving treatment in the event of a further serious deterioration. The family opposed the application. Peter Jackson J refused to give the declaration sought. Mr James' condition deteriorated further after the initial judgment of Peter Jackson J. On 21 December 2012 the Court of Appeal allowed the appeal and made the declarations sought. Sadly Mr James died after a cardiac arrest on 31 December. The Court of Appeal handed down its full judgment on 1 March 2013.
Mr James lacked capacity. Peter Jackson J had proper regard to the Mental Capacity Act and the Code of Practice. Paragraph 5.31 of the Code of Practice provides, amongst other things, that "There will be a limited number of cases where treatment is futile, overly burdensome to the patient or where there is no prospect of recovery." Whether the authors of the Code wanted it or not, this sentence has now become the subject of close textual analysis. The issue was what was in Mr James' best interests. He set out a "balance sheet" of the pros and cons of making the declaration sought and concluded that it was not in Mr James' best interests to make the declaration.
At trial the Judge heard evidence from the family that Mr James could show facial expression and showed interest in family news and events. The Official Solicitor's representative who had visited Mr James had noted how he had held his son's hand, kissed his wife when she had leaned to him and had watched her as she moved around his bed. He had smiled on hearing his wife had telephoned and on hearing music.
There was no application to withdraw ventilation or artificial nutrition and hydration but the Trust did not wish to give what would be invasive, distressing and even painful support for circulatory problems or renal replacement therapy in the event of a deterioration. Peter Jackson J held, "Although DJ's condition is in many respects grim, I am not persuaded that treatment would be futile or overly burdensome or that there is no prospect of recovery." He regarded recovery as being a resumption of a quality of life which DJ would consider worthwhile.
He noted that Counsel had not been able to identify a case in which the withholding of treatment had been approved where the patient's quality of life was comparable to DJ's and where the family was in such clear opposition.
Giving the lead judgment on Appeal Sir Alan Ward (with whom Laws LJ agreed) said that "the crucial question is to determine what the proper goal is for life sustaining treatment" which is defined in s4(10) of the MCA 2005 to be treatment which in the view of the person providing healthcare for the person concerned is necessary to sustain life. He held that the futility of treatment must be judged in the light of the answer to the question whether the treatment has a real prospect of "curing or at least palliating the life threatening disease or illness from which the patient is suffering." He held that the judge had been wrong to concentrate on the usefulness of treatment in coping with a crisis and "not also to be concerned instead with whether the treatment was worthwhile in the interests of the general well-being and overall health of the patient. The narrowness of the judge's focus undermines his judgment and I would allow the appeal on that basis alone."
Thus, it seems, treatment which saves or prolongs life is futile if it does not cure or palliate (improve or alleviate) the underlying condition. If it does no more than restore the patient to their pre-treatment condition then it is to be regarded as "futile". In Bland Lord Goff had talked of treatment as being futile where the patient was unconscious and there was no prospect of improvement in his condition. It appears that the Court of Appeal have gone a significant step further and have considered that treatment may be futile if it merely helps overcome a crisis or acute deterioration and thereby prolongs the life of a patient who is in a minimally conscious state,
Sir Alan Ward also concluded that the Judge had erred in his approach to the question of whether there was a prospect of recovery. The Judge had held that "recovery does not mean a return to full health but a resumption of a quality of life that DJ would regard as worthwhile". Sir Alan Ward disagreed stating that under the Code of Practice (especially at 5.30) the "the focus is on the medical interest of the patient when treatment is being considered to sustain life ... "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." That is a very high hurdle - in many cases there will be no prospect of a sustained recovery but there may be improvements which could be made to enhance his quality of life.
Having found that the first instance judge had erred in law, Sir Alan Ward then went on to consider what was in Mr James' best interests. He said, with what almost sounds like reluctance, "here I have to accept that the term "best interests" encompasses medical, emotional and all other welfare issues." The court must consider, so far as reasonably ascertainable, the person's past and present wishes and feelings - s4(6) of the Act. However Sir Alan held that since Mr James lacked capacity and his wishes and feelings could not be ascertained, the court had to have regard to the factors that he would be likely to consider if he were able to do so. In that context he held that "His wishes, if they were to be the product of full informed thought, would have to recognise the futility of treatment, that treatment would be extremely burdensome to endure and that he would never recover enough to go home". Sir Alan concluded, "I respect his wishes but in my judgment they must give way to what is best in his medical interests."
Lady Justice Arden took a similar line on the question of wishes and feelings. She said that "if the court has any doubt as to an individual's wishes or as to whether treatment should be given, it should proceed on the basis that the individual would act as a reasonable individual would act." . Taking that approach she concluded that "his wishes would be unlikely to be to have the treatment of the kind in issue here, and ... a reasonable individual in the light of current scientific knowledge would reject it."
An alternative approach would be to say that if the wishes and feelings of the individual are unascertainable then they cannot be taken into account in the balance sheet approach which is to be adopted in all such cases (unless it is a PVS/Bland type of case) - W-v-M Baker J. Section 4(6)(b) of the Act provides that so far as reasonably ascertainable, account should be taken of "the beliefs and values that would be likely to influence his decision if he had capaccity." It seems now that these are taken to be those of the reasonable man, rather than the individual concerned. By placing emphasis on the wishes and feelings of the reasonable man, the court is likely simply to repeat or add weight to its views on the medical interests of the individual. Indeed Sir Alan Ward said clearly that his wishes should give way to what is in his best medical interests. Thus the approach of the Court was very different from that of the experienced first instance judge. Perhaps the Supreme Court will take a different approach to these difficult cases.