6 November 2013

Lady Hale in Aintree v James

In Aintree v James a man lay ill in hospital. He lacked capacity to make decisions. Others had to decide for him. The Court of Protection (CP) had to say whether choosing to withhold his future treatment would be lawful. Afterwards, the Court of Appeal (CA) checked the lower court's judgment. Eventually the Supreme Court (SC) scrutinised both these decisions. Lady Hale delivered that opinion. This post examines a few details in her discussion.

Supreme Court

[2013] UKSC 67

30 October 2013

Aintree University Hospitals NHS Foundation
= Respondent
James = Appellant

Lady Hale, Lord Neuberger, Lord Clarke, Lord Carnwath, Lord Hughes

1. Introduction

The initial case involved the Mental Capacity Act 2005 s 15 and asked the CP when an act taken (or omitted) on behalf of a person who lacks capacity is lawful. The medical team thought it best to withhold treatment. The man's family wanted treatment administered. The CP agreed with the family, the CA with the medics. The SC's role was to decide who was correct.

The CA's reasoning is largely superfluous here because Lady Hale critiqued their methodology as wrong. Nevertheless she argued the CA reached a correct final decision.

Until Lady Hale's analysis at [17] the question was phrased poorly by all--'would [it] be in [the man's] best interests to withhold (…) [life-saving] treatment[] (…)'? After noting the temptation to phrase the issue this way, Lady Hale sensibly rephrases the question:
[T]he focus is on whether it is in the patient’s best interests to give the treatment, rather than (…) to withhold or withdraw it. If the treatment is not in his best interests, the court will not be able to give its consent on his behalf and it will follow that it will be lawful to withhold or withdraw it. Indeed, it will follow that it will not be lawful to give it. It also follows that (provided of course (…) they have acted reasonably and without negligence) the clinical team will not be in breach of any duty towards the patient if they withhold or withdraw it (at [22], my emphasis).

2. Defining 'Best Interests'

At [24] Lady Hale considers what the best interests test comprises. She confirms it does not mean 'substituted judgment'--ie a test to devise what the person would have decided--but she gives an example of when the two ideas amicably meet:
[I]t cannot be in the best interests to give the patient food which he does not like when other equally nutritious food is available.
That is, a person's substituted judgment may be the same as or clarify the best option--of which, there can only be one.

3. Does This Case Provide a Framework?

After Lady Hale discusses precedent, she collects a few threads and compiles a short list. She concludes the CP's approach was correct. Her process, however, is slightly undermined because alongside finding commonalities between cases, she acknowledges that previous courts were reluctant to offer guidance for future decision-makers. She seems to agree with this trend at [36]: best interest cases should be dealt with case-by-case. Though not written as a disclaimer, all this is spoken as if to suggest her summary should not be used as criteria against which to judge other best interest decisions.

Lady Hale draws closer to a framework in [37]. But at [47] she appears to restrict that issuing: 'upholding the [CP]’s view of the law does not in any way change the law as previously understood'. In this, Lady Hale suggests the previous fears with devising a framework continue. Therefore, perhaps Aintree v James should not be viewed as a framework for substantive prescription, but as structural guidance.

4. Precision

Lady Hale's final point in [47] is unmistakably useful for law students. Be precise and inasmuch as possible say what you mean:
In this case, “in the event of a clinical deterioration” in fact meant “should his condition deteriorate to the extent that [medical treatments] become necessary” and it would have been helpful to say so.

5. Conclusion

Much more in this case merits discussion, but a blog post is not the place for it. As this is the first SC opinion about the Mental Capacity Act 2005, there is sure to be an influx of journal articles soon. I look forward to those publications. For those who cannot wait--perhaps you have medical law coursework that involves the issues raised in this case but need a little help understanding Lady Hale's speech--Kate Beattie has written a thorough comment for the UK Human Rights Blog that you may enjoy: 'Supreme Court weighs in on patient’s best interests and the meaning of futility'.

Created: 2 November 2013. Version 1.0.

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