Judge: Laws and Arden LJJ, Rt Hon Sir Alan Ward
Citation:  EWCA Civ 65
Summary: The Court of Appeal has provided the reasons for its decision before Christmas that the first instance judge had been wrong to refuse to make declarations sought by the NHS Trust that it was in Mr James’ best interests to withhold life-sustaining treatments including CPR, invasive support for circulatory problems, and renal replacement therapy.
Mr James had become severely unwell in May 2012, and had been in intensive care since then. He had experienced a “set of tentative recoveries interrupted by recurrent infections leading to lowering of his blood pressure, septic shock and multiple organ failure”, and a cardiac arrest. By the time of the Court of Appeal hearing on 21 December 2012, “he had not managed more than 5 hours of spontaneous breathing since December 5th. Since 14th December he was completely dependent on mechanical ventilation. On 18th December he suffered a further dramatic deterioration which included worsening of his respiratory failure to the point that it was extremely difficult even to achieve good mechanical ventilation. This was accompanied by hypotension which was unresponsive to fluid and required intravenous vasopressors to maintain his blood pressure. He was given a further course of antibiotic therapy. His renal function had also deteriorated. He was at that time comatose or semi-comatose, responding only to painful stimuli by flexing his left arm.” The doctors were unanimous that any further interventions to sustain Mr James’ life would cause him greater suffering with only very limited benefits. Mr James’ family however felt that as he was still conscious and able to recognise them, and since he had already survived for longer than might have been expected despite his serious condition, it would be wrong to refuse to provide further interventions aimed at prolonging his life.
Mr James was said to be in a minimally conscious state, although it is apparent from the description of his interaction with his family, that he was substantially more aware of himself and his environment than M (in W v M  EWHC 2443).
Lord Justice Ward held that Mr Justice Peter Jackson had erred in not finding that the treatment that the Trust proposed withholding from Mr James was futile:
“It follows that in my judgment the judge erred in law in adopting too narrow a view of futility. He was wrong simply to look at the past successful effect of the treatment without also having regard to the improvement, or lack of improvement, that such treatment will bring to the general health of the patient. He was wrong to concentrate on the usefulness of the treatment in coping with the crisis and curing the disease or illness, e.g. the cardiac arrest, 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.” (emphasis added)
Further, said Lord Justice Ward, the treatment in issue was overly-burdensome, contrary to the findings at first instance. There had also been a failure in the judge’s approach to the issue of Mr James’s potential for recovery:
“When it comes to a consideration of whether or not there was a prospect of recovery the judge held at (1)(d) that ‘recovery does not mean a return to full health, but a resumption of a quality of life that DJ would regard as worthwhile.’ Once again I respectfully conclude that the judge has applied the wrong test when considering the guidance in the Code of Practice. As I have indicated in my discussion on the meaning of futility, what the guidance is concerned with is answering the question, ‘how should someone’s best interests be worked out when making decisions about life-sustaining treatment?’ As is stated at 5.30:
‘It is up to the doctor or healthcare professional providing treatment to assess whether the treatment is life-sustaining in each particular situation.’
In other words the focus is on the medical interests of the patient when treatment is being considered to sustain life. That is not to say the doctors determine the outcome for it is the court that must decide where there is a dispute about it and the court will always scrutinise the medical evidence with scrupulous care. Here we were necessarily dealing with a situation where life was ebbing away. In the context, therefore, ‘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. DJ had a less than 1% chance of ever being released from the intensive care unit. He was slowly dying, not ‘actively dying’, as clinicians might describe his state had he been in such a condition that the Liverpool Care Pathway might have become appropriate. But there was no prospect whatever for this unfortunate brave man ever overcoming the multiple organ failure from which he had suffered with exponentially weaker prospects of recovery. This is a further reason for allowing the appeal.”
On the subject of Mr James’ wishes and feelings, Ward LJ said this:
“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. All this would be extremely distressing for his family.”
Ward LJ concluded by saying that:
“… a judgment on whether life is intolerable is a judgment on the quality of that life. It must, therefore, play some part in the assessment of best interests (as does the worthwhileness of treatments) but only as one of the many circumstances to take into account. Viewed objectively, DJ’s life in the first months of his time in hospital was tolerable enough to require that all these treatment be tried and even that they be tried again but sadly the stage was eventually reached, as the medical evidence accepted by the judge demonstrated, that DJ’s life would become quite intolerable were he to suffer a further crisis leading to a further setback in his health. Were that to happen the risks and burdens of trying to keep him alive would be disproportionate to the diminishing opportunities for him to take pleasure from his family. Thus there was no longer the need to try, try and try again to restore him to the state he was bravely fighting to achieve.”
Arden LJ also allowed the Trust’s appeal, but for different reasons, relying solely on the basis that Mr James, had he been fully informed of the situation, would have agreed with the Trust:
“Acting with humanity, and with respect for DJ’s autonomy, I consider in the light of DJ’s medical condition, his wishes would be unlikely to be to have the treatment of the kind in issue here, and that a reasonable individual in the light of current scientific knowledge would reject it.”
Mr James died ten days after the Court of Appeal’s decision to allow the Trust’s appeal.
Comment: There are many notable features of this important decision by the Court of Appeal. It contains the clearest acceptance yet of the obvious truth that a best interests decision in a medical treatment case necessarily involves an assessment of quality of life. At the same time, it shows the route by which concerns about slippery slopes and making value judgments about the lives of other people are sidestepped by the MCA 2005 – namely the central focus on ascertaining the wishes of the particular person involved.
No doubt Mr James’ family would say that the judges were wrong to say that Mr James would have supported the Trust’s application, and Lady Justice Arden’s reference to what a ‘reasonable’ person would have wanted is unhelpful, since the MCA 2005 should not be used to impose rational decisions on people without capacity, if there is evidence that they would have chosen something different. Nevertheless, the principle that Mr James’ likely wishes are of particular importance is firmly endorsed – in contrast to the position in W v M in which evidence of M’s likely views was accorded very little weight.
The Court’s approval of a narrow clinical definition of futility is also significant – although not establishing any new principle or approach, it is a very clear guide to proper approach to this critical question.