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Appeal judge redefines ‘futile treatment’

Patients best interests should be assessed by reference to therapeutic benefit

8 March 2013

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Doctors should be allowed to withhold life-sustaining treatment where it would be “futile” to continue it, according to a new test laid down by a senior appeal judge earlier this week.

Musician David James suffered complications from cancer and, following rapid deterioration of his health, doctors sought to place a ‘do not attempt resuscitation’ instruction on his records.

Giving the lead judgment in Aintree University Hospital NHS Foundation Trust v David James and Ors [2013] EWCA Civ 65, Sir Alan Ward allowed an appeal against the first instance judge, saying he had adopted a “too narrow a view of futility”.

Sir Alan, who retired as Lord Justice, said the judge was “wrong to concentrate on the usefulness of the treatment in coping with the crisis and curing the disease… and not also to be concerned instead with whether the treatment was worthwhile in the interests of the general well-being.”

The senior judge concluded that futility should be judged by whether it secures a therapeutic benefit to the patient. “The treatment must, standing alone or with other medical care, have the real prospect of curing or at least palliating the life-threatening disease or illness,” he said.

Minimally conscious

James became dependent on ventilator support after suffering multiple-organ failure in 2012. He was given six minutes of cardiopulmonary resuscitation (CPR) in August 2012 after a heart attack and ended up in a minimally conscious state, although he remained responsive to others, especially his family.

His family disagreed with the hospital trust’s request for a ‘do not resuscitate’ record. The medical assessment concluded there was less than 1 per cent chance of James being discharged from the unit.

The trust went to court asking for a declaration that James lacked capacity to consent to or refuse treatment of any kind and that in the event of a clinical deterioration it would be in his best interests for certain invasive treatment to be withheld (including CPR).

Mr Justice Jackson, in the Court of Protection, refused the declaration.

New evidence

David James died on 31 December 2012, ten days after the trust’s appeal was granted. New evidence was admitted showing continued deterioration so that even mechanical ventilation was difficult.

Sir Alan concluded that Jackson J had used the wrong test to assess the treatment’s potential.

He said that under the Mental Capacity Act code of practice, it was “up to the doctor or healthcare professional providing treatment to assess whether the treatment is life-sustaining in each particular situation”.

He added: “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.”

Lady Justice Arden reached the same verdict but by a different route. She concluded: “Under the law, human life is sacrosanct, even that which is only partially enjoyed as in the case of [D James], with only diminished consciousness.”

The meaning of futility

The test under the Mental Capacity Act 2005 section 1(5) was about the patient’s best interests. The judge had not allowed his decisions on futility to govern his decision and took too narrow a view.

Having found all treatments, including CPR, could not be said to be futile, the judge failed to find that in another crisis it was unlikely that CPR would be in David James’ best interests. 

Although the treatment forms were very discomforting and extremely painful, there were not overly burdensome as stated. 

The judge applied the wrong test when considering the guidance in the Mental Capacity Act Code of Practice. The focus was on the medical interests.

The court had to try to ascertain David James’ wishes, which would, if they were the product of full-informed thought, 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.


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