Judge: Lord Neuberger (President), Lady Hale (Deputy President), Lord Clarke, Lord Carnwath, Lord Hughes
Citation:  UKSC 67
Three members of 39 Essex Chambers were instructed in this case, which concerned how doctors and courts should determine whether or not a patient who lacks capacity to decide for himself should be given treatments necessary to sustain life. Vikram Sachdeva appeared for the Respondent and Alex Ruck Keene and Victoria Butler-Cole for the Interveners (The Intensive Care Society and the Facility for Intensive Care Medicine).
This case initially arose when Aintree University Hospitals NHS Foundation Trust sought a declaration under the Mental Capacity Act 2005 that it would be in the best interests of a patient (Mr James) to have certain painful and/or deeply physical treatments to be withheld from him in the event of clinical deterioration. Mr James’ family accepted that he would never return to full health but believed that he gained pleasure from his present quality of life and would wish it to continue. At this point Mr James had lost capacity to make these decisions for himself, but it was apparent that he derived pleasure from the visits of his family and friends.
The Mental Capacity Code of Practice states that it may be in the best interest of a patient not to receive life sustaining treatment where that treatment would be ‘futile’ or ‘overly burdensome to the patient or where there is no prospect of recovery’. The trial judge ruled that this did not apply to treatments which would enable the patient to resume to a quality of life they would feel worthwhile. Due to this the judge held that it would not be appropriate to make the declarations sought. The Court of Appeal reversed this decision on the grounds that ‘futility’ was to be judged by the level of improvement the treatment would bring to the general health of the patient, and ‘recovery’ meant that the patient would recover to the extent that imminent death was averted.
Prior to the Supreme Court case Mr James died from a cardiac arrest. Despite this the widow was granted permission to appeal due to the importance of the issues raised by the case.
The Supreme Court decided that the trial judge was right:
The Supreme Court ruled that the Court of Appeal had been in error when rejecting the trial judge’s approach, and that it had been wrong to use an objective test to decide what a patient would think, rather than the subjective test used by the trial judge. However, the situation had changed by the time the case reached the Court of Appeal as Mr James’s condition had deteriorated to the point where it was not in his best interests to provide the treatments under discussion. Therefore the Court of Appeal was also right to reverse the original decision.
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