Judge: Supreme Court (Lord Neuberger, President, Lady Hale, Deputy President, Lord Clarke, Lord Carnwath and Lord Hughes)
Citation:  UKSC 67
Summary: Mr James was a 68 year old man who was seriously ill and had been in intensive care for some 7 months when his treating clinicians applied to the Court of Protection for declarations as to the lawfulness of withholding further invasive treatment and CPR. Regular readers will recall that the first instance judge refused to make the ‘absolute’ declarations sought, but the Court of Appeal was satisfied, having had regard to new evidence as to Mr James’ condition, that the declarations were in his best interests. The Supreme Court granted permission to appeal, notwithstanding that Mr James had died shortly after the Court of Appeal hearing.
The Supreme Court’s judgment (given by Baroness Hale, with whom the other Supreme Court Justices agreed) reaffirms a number of well-established propositions concerning the MCA 2005 and, in particular, medical treatment decisions:
1. the MCA 2005 is concerned with enabling the court to do for the patient what he could do for himself if of full capacity, but it goes no further. On an application under the Act, therefore, the court has no greater powers than the patient would have if he were of full capacity. Patients cannot demand that doctors administer treatment which the doctor considers is not appropriate;
2. any treatment which the doctors do decide to give must be lawful. The question for the Court of Protection is not whether it is lawful to withhold treatment, but whether it is lawful to give it, since without consent (or a best interests decision on behalf of an incapacitated treatment) medical treatment of any sort cannot be administered;
3. P’s own wishes are of central importance in best interests decision making, notwithstanding that the MCA 2005 does not impose a test of substituted judgment. There is a need to see the patient as an individual, with his own values, likes and dislikes, and to consider his best interests in a holistic way.
The Supreme Court considered what the meaning of the terms ‘futility’ and ‘no prospect of recovery’ in the Code of Practice to the MCA 2005 meant, in the context of the provision of life-sustaining treatment. The approach taken by the Court of Appeal, which viewed futile treatment as treatment that would not cure or at least palliate the life-threatening disease or illness from which the patient is suffering, was rejected. Futility was to be considered as treatment which is ‘ineffective’ or ‘of no benefit to the patient’- ‘A treatment may bring some benefit to the patient even though it has no effect upon the underlying disease or disability’. When considering whether a patient has a prospect of recovery, ‘recovery’ meant the resumption of a quality of life which that patient would regard as worthwhile, not one that others (including doctors) would regard as worthwhile. The question is not whether there is a prospect of recovering ‘such a state of good health as will avert the looming prospect of death if the life-sustaining treatment is given.’
Recognising that the definition of ‘best interests’ is necessarily elusive, the Supreme Court stated that:
‘The most that can be said, therefore, is that in considering the best interests of this particular patient at this particular time, decision-makers must look at his welfare in the widest sense, not just medical but social and psychological; they must consider the nature of the medical treatment in question, what it involves and its prospects of success; they must consider what the outcome of that treatment for the patient is likely to be; they must try and put themselves in the place of the individual patient and ask what his attitude to the treatment is or would be likely to be; and they must consult others who are looking after him or interested in his welfare, in particular for their view of what his attitude would be.’
The Supreme Court also rejected the suggestion made by the Court of Appeal that the test of the patient’s wishes and feelings was an objective one, or what ‘the reasonable patient’ would think: “The purpose of the best interests test is to consider matters from the patient’s point of view. That is not to say that his wishes must prevail, any more than those of a fully capable patient must prevail. We cannot always have what we want. Nor will it always be possible to ascertain what an incapable patient’s wishes are. Even if it is possible to determine what his views were in the past, they might well have changed in the light of the stresses and strains of his current predicament. In this case, the highest it could be put was, as counsel had agreed, that ‘It was likely that Mr James would want treatment up to the point where it became hopeless’. But insofar as it is possible to ascertain the patient’s wishes and feelings, his beliefs and values or the things which were important to him, it is those which should be taken into account because they are a component in making the choice which is right for him as an individual human being.”
However, having disagreed with the Court of Appeal on its approach to the law, the Supreme Court found that in light of the changed medical position that prevailed by the time that matter had come before the Court of Appeal, it had reached the right conclusion, and so the appeal was dismissed.
Comment: Although Baroness Hale was at pains to make clear that she considered the Supreme Court’s judgment did no more than reflect the pre-existing legal framework for decision-making in end of life scenarios, the implications of this judgment are likely to be significant. First, the emphasis on the patient’s own views as being a core aspect of the ‘objective best interests’ test is important – the Supreme Court suggests that decisions should be made through the prism of P’s likely or actual wishes, which is not an approach that has always been reflected in the caselaw. Secondly, the judgment suggests that applications to the court in circumstances where P’s condition is fluctuating or uncertain may not be appropriate, making it difficult for clinicians to know whether and when to approach the court where there is disagreement about proposed future interventions. Thirdly, the court’s approach to the key concepts of ‘futility’ and ‘recovery’ is likely to be of great interest to clinicians, who will have to reconcile the court’s analysis with the GMC guidance on treatment at the end of life (guidance which Baroness Hale considered to be in accordance with the law as set down in the judgment of the Supreme Court).