Aintree University Hospitals NHS Foundation Trust v James

JurisdictionEngland & Wales
JudgeLady Hale,Lord Neuberger,Lord Clarke,Lord Carnwath,Lord Hughes
Judgment Date30 October 2013
Neutral Citation[2013] UKSC 67
CourtSupreme Court
Date30 October 2013
Aintree University Hospitals NHS Foundation Trust
(Respondent)
and
James
(Appellant)

[2013] UKSC 67

Before

Lord Neuberger, President

Lady Hale, Deputy President

Lord Clarke

Lord Carnwath

Lord Hughes

THE SUPREME COURT

Michaelmas Term

On appeal from: [2013] EWCA Civ 65

Appellant

Ian Wise QC

Stephen Broach

Sam Jacobs

(Instructed by Jackson and Canter)

Interveners (The Intensive Care Society; The Faculty of Intensive Care Medicine)

Alex Ruck Keene

Victoria Butler-Cole

(Instructed by Bevan Brittan LLP)

Respondent

Lord Pannick QC

Vikram Sachdeva

(Instructed by Hill Dickinson LLP)

Heard on 24 July 2013

Lady Hale (with whom Lord Neuberger, Lord Clarke, Lord Carnwath and Lord Hughes agree)

1

This is the first case under the Mental Capacity Act 2005 to come before this Court. That Act provides for decisions to be made on behalf of people who are unable to make decisions for themselves. Everyone who makes a decision under the Act must do so in the best interests of the person concerned. The decision in this case could not be more important: the hospital where a gravely ill man was being treated asked for a declaration that it would be in his best interests to withhold certain life-sustaining treatments from him. When can it be in the best interests of a living patient to withhold from him treatment which will keep him alive? On the other hand, when can it be in his best interests to inflict severely invasive treatment upon him which will bring him next to no positive benefit?

The facts
2

The patient, David James, was admitted to hospital in May 2012 aged around 68 because of a problem with a stoma he had had fitted in 2001 during successful treatment for cancer of the colon. The problem was soon solved but he acquired an infection which was complicated by the development of chronic obstructive pulmonary disease, an acute kidney injury and persistent low blood pressure. He was admitted to the critical care unit and placed on a ventilator. He remained in the critical care unit and dependent on ventilator support until the hearing before Peter Jackson J on 5 and 6 December 2012: [2012] EWHC 3524 (COP). His condition between May and December fluctuated. There were some severe setbacks, including a stroke, which left him with right-sided weakness and contracture of his legs, and a cardiac arrest which required six minutes of advanced cardio-pulmonary resuscitation (CPR) to save him. He had recurring infections, leading to septic shock and multiple organ failure. In between, there were efforts to liberate him from the ventilator and onto a lesser form of supported breathing (CPAP). A tracheostomy was performed for this purpose. At the time of the hearing, he was not on antibiotics or other medication and able to tolerate at least 12 hours of CPAP a day. He received clinically assisted nutrition and hydration through a nasogastric tube.

3

The judge accepted the evidence of Dr Grant, a consultant in critical care medicine, on behalf of the ten consultants and senior nursing staff who had been responsible for Mr James' care, as to the diagnosis and prognosis. The patient suffered from gross muscle wasting, owing to his prolonged period of near immobility, so could not sit or stand for himself. He also suffered from contractures, similar to very severe cramps, causing grimacing, raised pulse, breathing and blood pressure, indicating distress and pain. He had suffered a stroke, with severe neurological damage. He was completely dependent on artificial ventilation and required regular tube suction. His kidney function was extremely fragile, with a maximum function of 20% or so, although he had not so far required renal therapy. It was almost inevitable that he would face further infections leading to lowered blood pressure and the prospect of further multi-organ failure. Daily care tasks could cause discomfort, pain and suffering. Overall, his prospects of leaving the critical care unit, let alone the hospital, were extremely low.

4

The Official Solicitor, acting on Mr James' behalf, had instructed an independent specialist, Dr Danbury, to investigate. His diagnosis and prognosis were consistent with that of the other doctors.

5

As to Mr James' mental faculties, he suffered a marked deterioration in his neurological state in July, after which he was considered to lack the capacity to make decisions about his medical treatment. A Wessex Head Injury Matrix assessment in November indicated severe neurological impairment. Nevertheless, the judge recorded the observations in November of Dr Danbury, of Ms Baker, the Official Solicitor's case manager, and of the medical and nursing staff. These indicated, positively, that he recognised and was pleased to see his wife and his son when they visited; kissed his wife when she leaned into him; looked at her when she moved round the bed; mouthed what appeared to be words in answer to his wife, Ms Baker and nursing staff; turned the pages of a newspaper, smiling while he did so, although it was not clear to the doctor whether he was actually reading any of the articles or looking at the pictures; put on and took off his glasses while doing so; and appeared to enjoy watching videos on his son's phone.

6

The judge accepted that he qualified for a diagnosis of being in a minimally conscious state. But, as Baker J had pointed out in W v M [2011] EWHC 2443, [2012] 1 WLR 1653, "there is a spectrum of minimal consciousness extending from patients who are only just above the vegetative state to those who are bordering on full consciousness." Peter Jackson J added that "to that extent the word 'minimal' in the diagnostic label may mislead". Mr James' current level of awareness when not in a medical crisis "might more accurately be described [as] very limited rather than minimal" (para 38).

7

Mr James had been a talented professional musician, spending over 50 years in the music business. He was also a devoted family man. He and his wife had celebrated their golden wedding anniversary in September when their daughter said that he had been "very alert". They have three children, three grandchildren and many friends. Family and friends visited him regularly in hospital and his daughter felt that he got a lot of enjoyment from seeing them. She herself visited for four hours every day.

The proceedings
8

In September 2012, the hospital trust issued proceedings in the Court of Protection, seeking declarations (1) that Mr James lacked capacity to consent to or refuse treatment of any kind (this was uncontentious); and (2) that it would be in his best interests for four specified treatments to be withheld "in the event of a clinical deterioration". Originally, those four treatments included "intravenous antibiotics for further infectious complications" but the trust did not pursue that. Nor was there any suggestion that the current treatment, ventilation and clinically assisted nutrition and hydration, should be withheld. The three treatments in question, as described by the judge (para 8), were as follows:

(1) Invasive support for circulatory problems. This meant the administration of strong inotropic or vasopressor drugs in order to correct episodes of dangerously low blood pressure. The process is painful, involving needles and usually the insertion of a central line. The drugs have significant side effects and can cause a heart attack. They had previously been used to treat Mr James.

(2) Renal replacement therapy. This meant haemofiltration, filtering the blood through a machine to make up for the lack of kidney function. It too requires a large line to be inserted and an anti-coagulant drug which brings the risk of bleeding or a stroke. It can be very unpleasant for the patient and may cause intense feelings of cold. Mr James had not so far required this treatment.

(3) Cardiopulmonary resuscitation (CPR). This aims to make a heart which has stopped beating start beating again. So the decision has to be taken at once. It can take various forms, including the administration of drugs, electric shock therapy and physical compression of the chest and inflation of the lungs. To be effective, it is "deeply physical" and can involve significant rib fractures. CPR had successfully been given to Mr James when his heart had stopped beating in August.

9

The unanimous view of the clinical team was that it would not be in Mr James' best interests to receive these treatments, should his condition deteriorate to the extent that he needed them (that was what was meant by a "clinical deterioration"). The judge commented that these views were the result of careful thought and bound to carry considerable weight. Dr Danbury took the same view. But the judge did not attach additional weight to his assessment, because in his first report he had said that it was not appropriate to continue even with the current treatment, because there was no prospect of Mr James being able to function again as a musician. He later withdrew this, but the judge did not feel able to rely upon his later assessment, given what the judge regarded as this "false start".

10

The family took a different view from the clinicians. They felt that every time Mr James had had an infection he had pulled through. The gaps between episodes of infection had become wider. While he would never recover his previous quality of life, he got a lot of enjoyment from seeing his family and close friends. He had been determined to beat his cancer and the family believed that he would feel the same about his current predicament.

11

Counsel agreed the following list of considerations both for and against treatment in the event of a deterioration (para 79). In favour were:

Against treatment were:

  • • Life itself is of value and treatment may lengthen Mr James' life.

  • • He currently has a measurable quality of life from which he gains pleasure. Although his...

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3 firm's commentaries
  • Serious Medical Treatment: Court Of Protection Emphasises Need For No Delay
    • United Kingdom
    • Mondaq UK
    • 22 August 2019
    ...treatment was in the patient's best interest. As set out in the case of Aintree University Hospital NHS Foundation Trust - v- James (2013) UKSC 67, the Court has to look at welfare in the widest sense and not just medical factors. It is recommended that a balance sheet is used to weigh up t......
  • Children’s end of life decisions (UK).
    • United Kingdom
    • LexBlog United Kingdom
    • 16 July 2022
    ...been devolved to the clinical machinery, medication, and nursing care. The Court, applying Aintree University Hospital NHS Trust v James [2013] UKSC 67, concluded at [46]: This court has to ask itself whether continuation of ventilation in this case is in Archie’s best interests. It is with......
  • Health Alert (Australia) - 4 November 2013
    • Australia
    • Mondaq Australia
    • 26 November 2013
    ...Application opposed by the mother. 30 October 2013 - Aintree University Hospitals national health service (NHS) Foundation Trust v James [2013] UKSC 67 First case under the Mental Capacity Act 2005 to come before this Court. That Act provides for decisions to be made on behalf of people who......
11 books & journal articles
  • Hidden Law‐Making in the Province of Medical Jurisprudence
    • United Kingdom
    • The Modern Law Review No. 77-3, May 2014
    • 1 May 2014
    ...Aintree UniversityHospitals NHS Foundation Trust vDavid James (by his litigation friend, the Official Solicitor), May Jamesand Julie James [2013] UKSC 67.118 See the comments in R (Burke) vGeneral Medical Council n 114 above, eg at [13]–[14], [19], [21],[82] (Lord Phillips). See further belo......
  • The Rise of Statutory Wills and the Limits of Best Interests Decision‐Making in Inheritance
    • United Kingdom
    • The Modern Law Review No. 78-6, November 2015
    • 1 November 2015
    ...RB vBrighton & Hove City Council [2014] EWCA Civ 561.145 ibid at [87].146 Aintree University Hospitals NHS Foundation Trust vJames [2013] UKSC 67.147 ibid at [45]. See further, V. Sachdeva, A. Ruck Keene and V. Butler-Cole, ‘The MCA in theSupreme Court- Ref‌lections on Aintree vJames’ (2014......
  • PARENS PATRIAE AND PARENTAL RIGHTS: WHEN SHOULD THE STATE OVERRIDE PARENTAL MEDICAL DECISIONS?
    • United States
    • Journal of Law and Health Vol. 33 No. 1, September 2019
    • 22 September 2019
    ...J); E (A Child) [2018] EWCA (Civ) 550 (Eng.) (King LJ) (quoting Baroness Hale). (145) See Aintree University Hospital NHS Trust v. James [2013] UKSC 67 (Baroness Hale) ("The most that can be said, therefore, is that in considering the best interests of this particular patient at this partic......
  • From ‘Doctor Knows Best’ to Dignity: Placing Adults Who Lack Capacity at the Centre of Decisions About Their Medical Treatment
    • United Kingdom
    • The Modern Law Review No. 81-2, March 2018
    • 1 March 2018
    ...and State Intervention’ [2011] 70 Cambridge Law Journal 31.15 See, for example, Aintree University Hospitals Foundation Trust vJames [2013] UKSC 67 at [45].16 House of Lords Select Committee on the Mental Capacity Act 2005, Report of Session 2013–14Mental Capacity Act 2005: post-legislative......
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