The case of Aintree University Hospitals NHS Foundation Trust v James  UKSC 67 also shows the need to consider each patient as an individual.
Mr James was seriously ill and had been in intensive care for several months. His family argued that he was able to interact with them and that both they and Mr James gained benefit from this. Although the treating doctors felt Mr James was unlikely to recover and leave ITU, the family wanted him to receive further CPR if necessary to allow him to continue to enjoy these aspects of his life even if this was to be for a limited time.
In September 2012, the hospital sought a declaration from the Court of Protection, that it would be in Mr James' best interests not to receive certain treatments, including CPR, in the event of his deterioration. The judge in this initial hearing agreed with the family saying that "recovery does not mean a return to full health, but the resumption of a quality of life which Mr James would regard as worthwhile".
By December 2012 Mr James' condition had deteriorated further. The matter went before the Court of Appeal for consideration and at this stage a declaration was given that it would be lawful to withhold some treatments including CPR. Mr James died on 31 December 2012.
Supreme Court hearing
The Supreme Court hearing followed an appeal made by Mr James' widow. The Court considered the terms 'futility' and 'no prospect of recovery' in the context of the Code of Practice to the Mental Capacity Act 2005. They rejected the approach taken previously by the Court of Appeal, which viewed as futile treatment that would not cure or at least palliate the life-threatening disease or illness from which the patient is suffering.
The Supreme Court emphasised that: "A treatment may bring some benefit to the patient even though it has no effect upon the underlying disease or disability".
The ruling rejected the suggestion by the Court of Appeal that decisions about best interests could be made on the basis of what a "reasonable patient" might think and highlighted the importance of considering the particular patient at that particular time.
Recognising the difficulty in making these individual decisions the Supreme Court explained:
"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."
Making decisions in the best interests of incapacitated patients can be difficult and potentially fraught especially if the healthcare team disagree with the family about the potential benefits of treatment. The judgment shows the need for doctors to consider a wide range of issues when assessing best interests of a particular patient. This is a complex area however, and you can contact our 24-hour advisory helpline for support with specific cases.
This page was correct at publication on 21/11/2013. Any guidance is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.