Commentary: Aintree University Hospitals NHS Foundation Trust v James - Case Study Example

Case Commentary and Critique: Aintree Hospitals NHS Foundation Trust v James UKSC 67 By Introduction The concept of patient autonomy contemplates that the patient exercises the right to determine whether or not to refuse or to consent to medical treatment.1 Patient autonomy is contingent on the patient’s ability to voluntarily consent to medical treatment or to refuse medical treatment once the relevant information has been received.2 The issue of capacity to consent is central to patient autonomy. When a patient lacks the mental capacity to consent to life-saving medical treatment or to withdraw life-saving treatment, the patient no longer has the right to exercise patient autonomy on medical treatment.3 The guiding principle for individual patients lacking mental capacity is contained in Section1 of the Mental Capacity Act 2005. Any decision made or any action taking for or on behalf of a patient lacking mental capacity must be done in the best interest of the patient.4 Making decisions or taking action for or on behalf of a patient lacking mental capacity due to a critical medical condition under the Mental Capacity Act 2005, was considered by the Supreme Court in Aintree University Hospitals NHS Foundation Trust v James [2013] (Hereinafter Aintree). The Supreme Court considered the issues of capacity to give consent and the court’s jurisdiction to act on the patient’s behalf in the best interest of the patient.5 This is an important case because it is the first case to test the parameters of the Mental Capacity Act 2005.6 This research paper analyses the decision in Aintree with a view to determining the extent to which the best interest principle provides protection against oppressive treatment in terms of forcing invasive treatment on a patient who would otherwise not have consented to such treatment or withholds life-saving treatment from a patient who would otherwise consent to such treatment. This paper is divided into two parts. The first part of this paper presents a factual background of Aintree and identifies the legal issues relative to capacity to consent and the best interest principle. The second part of this paper presents an analysis of the court’s decision in Aintree. Factual Background, Legal Proceedings and Legal Issues: Aintree University Hospitals NHS Foundation Trust v James Factual Background and Legal Proceedings James, a husband, father of three, grandfather and a musician was admitted to hospital for medical treatment in 2012. At the time he became infected and was placed in the intensive care unit of the hospital and placed on a ventilator. His treatments varied and included CPR, a tracheostomy and receipt of artificial hydration and nutrition. Although his condition improved and worsened throughout, he was eventually unable to make decisions about his medical treatment. However, he recognized and responded through nodding and smiling to his family and hospital staff.7 James reportedly kissed family members on occasion.8 The hospital applied to the Court of Protection for declarations including a declaration that it would be in James’ best interest to withhold some treatment such as CPR if the patient’s condition deteriorates. The family opposed these declaration on the grounds that James had previously recovered from infections and that he was showing signs through responses to family and nursing staff that he was able to sustain and enjoy some quality of life. The Court of Protection denied the declarations and the hospital appealed. The Court of Appeal allowed the declarations and the family appealed to the Supreme Court.9 Legal Issues The following legal issues were discussed by the Supreme Court: When is it appropriate to consider a patient unable to consent to receive or withdraw or refuse to consent to medical treatment? What is in the best interest of the patient? How is the best interest of the patient determined? What factors should be considered in determining the best interest of the patient?10 Case Analysis The issue of capacity was considered by the Supreme Court in that the patient was diagnosed as being in a state of ‘minimal consciousness’ (Aintree, 2013: para. 6).11 However, the Supreme Court considered that this term is misleading based on Baker J’s contention I W v M (2011) that minimal consciousness can mean anything from ‘just above the vegetative state’ to ‘bordering on full consciousness’. However, despite the family’s observations about James’ ability to respond to family and medical staff, a medical diagnosis had been made that James’ neurological state had diminished and his brain functioning had been impaired significantly. Therefore James’ capacity was not an issue.12 Thus Aintree was not about whether or not the patient lacked capacity. Rather the case was about how to act and treat a patient that lacks capacity to consent to treatment or the withdrawal of treatment in critical care conditions. The Mental Capacity Act 2005, makes it clear that it is to be assumed initially that the adult patient has the requisite capacity and all steps should be taken to involve the patient in medical treatment decisions and discussions.13 Mental capacity is a critical issue because it takes the patient’s autonomy away and can leave the patient vulnerable to what would otherwise be considered oppressive treatment.14 In general, medical practitioners will protect themselves against future claims of neglect or invasive and oppressive treatment by relying on a capacity diagnosis from a qualified psychiatric team.15 However, a patient in an obvious state of unconsciousness or an unresponsive state can be determined by the medical team caring for the patient in critical care. In fact, it is not uncommon for a critical care patient to lack capacity to consent.16 I was able to observe the mental capacity of a patient in critical care for myself. A close family friend who had been diagnosed with cancer had been determined to fight cancer and as such had submitted to a number of invasive treatment options over the years. However, as she became terminally ill and progressively weak, it was obvious to family and friends that she was no longer able to made decisions at all. She was fed intravenously and was unable to get around on her own. She barely spoke and when she did, it was very difficult to understand what she said. Family and friends had to decide what she wanted or needed without any assistance from her. Therefore, mental capacity in critical care patients can be obvious to lay persons and this underscores why, James’ mental capacity was not a significant issue in the Aintree case. In any event, the Mental Capacity Act 2005 Code of Practice and the Mental Capacity Act 2005 provides significant safeguards to protect patients from mental capacity malfeasance and the possibility of oppressive or discriminatory treatment. The main safeguards relate to medical practitioners taking account of the patient’s best interest. However, Section 2 of the Mental Capacity Act 2005, specifically guards against determining lack of capacity on a discriminatory basis. For instance, Section 2(3) provides that an individual’s lack of capacity may not be determined on the basis of his or her ‘age or appearance’.17 Rather, capacity must be determined on ‘on the balance of probabilities’.18 Moreover, capacity can be both a permanent or temporary condition.19 The lack of capacity must be attributed to an ‘impairment of’ or a ‘disturbance in the functioning of the mind or brain’.20 The anti-oppressive and anti-discrimination aspects of the Mental Capacity Act 2005 are tenuous when the patient’s condition is critical. In such circumstances it is generally accepted that the more serious the patient’s condition, the greater the capacity should be.21 In other words, a critically ill patient usually requires invasive treatment and in order to accept the patient’s consent to such extreme measures, the level of capacity must be satisfactorily high. Similarly, rejection of medical treatment is likely to result in death and therefore capacity to refuse such life-saving measures must be relatively high. The courts have been consistent in measuring capacity in relation to severity of the condition. For example in Re T (Adult: Refusal of Medical Treatment) [1992] the court ruled that the medical practitioner must take into account at the relevant time, whether or not the capacity is consistent with the seriousness of the decision to be made. Therefore, when a decision is quite serious, the capacity must be commensurate with the decision to be made.22 The court cautioned against confusing medical outcomes with capacity and to take due regard to the patient’s decision when the patient’s capacity is established.23 At the end of the day, the key consideration is to balance the patient’s welfare with patient autonomy and as a result, an assessment of mental capacity is crucial for safeguarding against the risk of oppression and discriminatory treatment.24 A clinical assessment had been conducted on James in the Aintree case and therefore, the patient’s mental capacity was not an issue.25 The Supreme Court took steps in applying the best interest principle in the Aintree case that sought to balance patient autonomy with the patient’s wellbeing and this was derived from an interpretation and application of the Mental Capacity Act 2005 and the Mental Capacity Act 2005 Code of Practice 2007. Section 2.1 of the Mental Capacity Act 2005 Code of Practice 2007 explains that the purpose of the Mental Capacity Act 2005 and its principles including determination of the lack of capacity is to ‘protect people’ lacking in capacity and to aid those persons in partaking in ‘decisions that affect them’ as far as it is possible to do so.26 The primary goal of the principles contained in Section 1 of the Mental Capacity Act 2005 is to ‘assist and support people who may lack capacity to make particular decision’ and not ‘to restrict or control their lives’.27 This is borne out by the Supreme Court’s treatment of the best interest principle under the Mental Capacity Act 2005. The principles under Section 1 of the Mental Capacity Act 2005 are: The initial assumption is that the individual in question has capacity ‘unless it is established that he lacks capacity’.28 All reasonable measures must be taken to involve the person in question in the decision-making process before determining that the person is incapable of making a decision (Mental Capacity Act 2005, Section 1(3)).29 If an individual makes what might be an ‘unwise decision’ this must not equate to incapacity.30 Any decision made or act performed for or on behalf of an individual lacking capacity must be done in his or her best interest.31 Prior to making the decision or acting on it, ‘regard must be had to whether the purpose’ of the decision or act is ‘effectively achieved in a way that is less restrictive of the person’s rights and freedoms of action’.32 The principle guiding the court in Aintree was centred on the best interest principle and the Supreme Court discussed how it should be ascertained whether or not a specific treatment is in the patient’s best interest. In this regard, the Aintree Supreme Court looked to Section 4 of the Mental Capacity Act 2005. In this regard, Section 4(1) provides a safeguard against oppressive and discriminatory treatment by stating that the best interest decision must not be based on the patient’s ‘age or appearance’ nor on the basis of ‘a condition of his’ or an ‘aspect of his behaviour, which might’ influence ‘others to make unjustified assumptions about what might be in his best interests’.33 Thus proceeding on the basis of mental capacity requires keeping the patient’s interest first and foremost in mind by reference to the individual’s own circumstances and conditions and precludes generalizations that might be discriminatory in nature.34 The reasons for this best interest assessment are clear. As Karlawish, Quill and Meier explain, when a patient is in critical care and lacking in decision-making capacity, a number of conflicting concerns and issues arise.35 Family members often assess the patient’s best interest in terms of what might be in their own best interest. Family members’ concerns usually conflict with that of the medical staff and caregivers. All of these concerns and issues may conflict with what the patient may have wanted if he or she had the requisite capacity.36 The Aintree decision provides some guidance on how these interests are dealt with in favour of the patient’s best interest through an interpretation and application of the Mental Capacity Act 2005.37 The primary guiding principle to be derived from Section 4 of the Mental Capacity Act 2005 is to place and ‘emphasis on the need to see the patient as an individual, with his own values, likes and dislikes’ and take into account ‘his best interest in a holistic way’.38 Lady Hale noted that although the Mental Capacity Act 2005 fails to provide further explanation of this principle regarding the best interest of the patient, Section 42 of the Act directs the Lord Chancellor to establish a Code of Practice to expound on the principles contained in the Mental Capacity Act 2005. In deferring to the Code of Practice 2007, Lady Hale went on to refer to Section 5.32 of the Code of Practice 2007.39 Section 5.32 of the Code of Practice 2007 points out that all reasonably practical measures should be taken, which ‘are in the person’s best interest’ and such consideration should be spearheaded by the determination to ‘prolong’ the person’s life. In this regard, ‘there will be a limited number of cases’ in which ‘treatment is futile, over burdensome to the patient or where there is no prospect of recovery’.40 The question is therefore whether or not it is in the patient’s best interest to prolong life in circumstances where medical treatment is merely intrusive and will only prolong life with no benefit to the patient’s condition.41 The issue however, is not solely, whether or not the patient will benefit from the treatment or not and whether or not the treatment will only prolong life where death is imminent. The main issue is the ‘benefit’ of a specific treatment from the perspective of the patient’s wellbeing and whether or not the patient, if capable, would appreciate the treatment and its benefit, if any.42 Thus, the best interest principle directs attention to the patient and therefore attempts to remain faithful to the concept of patient autonomy. This is accomplished by emphasising what the patient would inevitably benefit from or would have wanted if capable of considering the treatment and his or her outcomes. The Supreme Court’s decision in Aintree demonstrates this preference for retaining and incorporating patient autonomy through patient-centred benefits. As Lady Hale pointed out, the best interest of the patient starts with taking account of what is in the best interest of ‘this patient’ at this ‘particular time’ and in doing so, ‘decision-makers’ are required to ‘look at his welfare in the widest sense’ and not ‘just medical, but social and psychological’.43 This means looking at and evaluating the ‘nature of the medical treatment in question’, as well as ‘what it involves’ and ‘its prospects of success’ and decision-makers must take into account the consequences of ‘that treatment for the patient’ in terms of likely outcomes, and they ‘must try and put themselves in the place of the individual patient’ and determine ‘what his attitude to the treatment is or would likely to be’ and ‘they must consult others who are looking after him or interested in his welfare’ and in ‘particular for their view of what his attitude would be’.44 Lady Hale went on to state that the judge of first instance had correctly considered the question of whether or not the treatment in question would have been futile to the extent that it would not have been effective or beneficial to the patient. The judge at first instance was also correct in stating that when considering the effectiveness and beneficial effects of treatment, it was not necessary to expect that the patient would make a full recovery. The main question is whether or not the treatment would result in a life or maintenance of life considered worthwhile from the perspective of the patient.45 Thus in preventing oppressive and discriminatory treatment, the focus is on the patient’s well-being or best interest from his or her perspective. The quality of life issue is not determined by some objective principle, but from the perspective of the patient and what the patient might deem or accept as an acceptable quality of life.46 This means gathering evidence of the patient’s attitude and conditions prior to becoming critically ill and mentally incapacitated and assessing what the patient may have indicated as his or her preference should a critical medical issue arise. At the end of the day, patient autonomy is a significant ethical issue and must be assessed in combination with other ethical issues such as respecting human life, the dignity of the patient, compassion for the patient, being fair and avoiding discrimination, exercising a duty of care, considering the quality of life and the morality of the sanctity of life (Queensland Government, Queensland Health).47 However, as the Supreme Court pointed out, when considering the best interest of the patient it was incorrect to set the standard too high when determining the extent to which treatment was beneficial to the patient.48 It was not fair to expect that beneficial treatment meant that the treatment had to somehow improve the illness itself. A treatment may be beneficial to a specific patient although it may not have any impact on the actual illness.49 However, considering that the patient James had deteriorated to the point of death, the Supreme Court ruled that the decision by the Court of Appeal to withdraw treatment in the patient’s best interest had been correct.50 The impact of the Mental Capacity Act 2005 and its application and interpretation by the Supreme Court in Aintree therefore suggest an approach to the best interest principle that seeks to provide safeguards against oppressive and discriminatory treatment of an end-of-life or critically ill patient rendered incapacitated by his condition or mentally unsound in general. This is accomplished through taking a holistic approach which involves taking account of all the ‘relevant circumstances’.51 Thus the medical profession is advised to take into consideration ‘the patient’s reasonably ascertainable past and present wishes/statements, their beliefs and values,’ and ‘any other factors they would take into account’.52 For example, a family friend, when first diagnosed with cancer expressed a desire to fight the disease to the bitter end. In doing so, she underwent all forms of treatment to the point where it had adverse effects on her. Yet she continued to seek out alternative treatment when doctors advised her against undergoing treatment during times when her organs were barely functioning. Even when she failed to qualify for alternative treatments she continued to explore methods for improving her strength so that she could be accepted for further medical treatment for fighting her disease. When her organs began to shut down, her family tried to find medical practitioners that would administer treatment, but they would only refer her to palliative care. In the end, the family accepted that medical treatment would only accelerate her death and opted for end-of-life care. The decision was made in the best interest of the patient who wanted to ultimately prolong her life. Since medical treatment would have accelerated her death, it was ultimately determined that medical treatment was not in the patient’s best interest. It would therefore appear that even where the patient has the requisite capacity, he or she will be denied medical treatment that is harmful to the patient and thus limits the extent to which a patient can exercise patient autonomy against his or her own best interest.53 Thus in considering the patient’s best interest, the Nursing Practice directive advises members of the medical profession to ‘consult others’.54 These others would include ‘carers, relatives, attorneys and deputies’.55 These are individuals who would have lived with and/or communicated with the patient and would know what the patient considered to be a respectable or acceptable quality of life and how far they would go to achieve their the perspective of an acceptable or respectable quality of life. These individuals would also know what the patient might accept or decide should they recover from the illness or recover their capacity to decide. This is consistent with the ruling in Aintree where comprehensive directions were provided for assessing the patient’s best interest when the patient lacks the capacity to decide on life-saving treatment options or medical treatment in general. The Nursing Practice directive also informs that in considering the best interest of the patient it is necessary to determine whether or not the same outcome can be achieved in a ‘less restrictive way’.56 The obvious implications are that the patient’s dignity and a safeguard against oppressive treatment is necessary in considering the best interest of the patient. The main question is therefore whether or not the outcome contemplated can be achieved with less intrusive treatment to avoid problems arising out of the protection of privacy as contained in the European Convention on Human Rights and the Human Rights Act. Obviously, the medical profession wants to avoid future claims of false imprisonment, assault and battery in addition to claims of invasion of privacy.57 Other safeguards against future claims in considering the best interest of the patient include considering the likelihood of the patient gaining his or her capacity in the future. In such a case, it might be more advantageous to both the medical staff and the patient to wait, if possible to apply medical treatment when the patient regains his or her capacity to make a medical decision in his or her best interest.58 In all the circumstances, the sanctity and dignity of life is the prevailing consideration and the medical profession must refrain from making a decision in the patient’s best interest based on a desire to accelerate the patient’s death.59 The main issue in determining what is in the best interest of the patient is the presumption that prolonging life serves the best interest of the patient. This is a human right, specifically, the right to life and the right to privacy as contained in the European Convention on Human Rights 195360 and confirmed by the Human Rights Act 1998. Where a person is incapacitated and cannot exercise the right to refuse or accept medical intervention, the court is empowered to decide for the individual.61 Taking the matter to court is presumed to be a place where the best interest of the patient can be based on the medical reality of the patient’s condition and the outcome of treatment together with the patient’s circumstances and conditions in way that avoids oppressive and discriminatory consideration of what is in the patient’s best interest. Conclusion The decision in Aintree does no more than draw attention to the broad issues involved in determining the best interest of the patient who lacks the capacity to make medical decisions. In identifying the broad issues involved the Aintree decision interprets the Mental Capacity Act 2005 and the Mental Capacity Code of Practice 2007 in ways that facilitate the necessary safeguards against biased or discriminatory decisions and oppressive treatment from the perspective of the patient. In other words, the Aintree decision puts the patient at the centre of the medical decision-making process and begins with the assumption that no life-saving method is futile unless otherwise proven. This sets the bar high and naturally favours prolonging life unless it can be shown that the patient would not have agreed to such treatment and/or such treatment would simply be oppressive in that it would not benefit the patient at all and would involve excessive invasive treatment. The question for consideration however, is what would the patient have preferred had he or she been able to decide? This question can only be answered by a thorough investigation of the facts and circumstances of the case. Ideally, a patient with a directive would provide the best evidence of what he or she would have wanted in circumstances where they were rendered incapacitated and in critical care.62 In the absence of a directive, the medical staff will have to take a broad range of factors and circumstances in consideration and put themselves in the patient’s position. There is no objective standard for determining the best interest of the patient in critical care. The best interest of the patient is therefore, a subjective exercise which centres entirely on the patient alone. Bibliography Textbooks Funnell, R. and Koutoukidis, G. Tabbner’s nursing care: Theory and practice. Chatswood, (NSW: Elsevier Australia, 2009). Madden, D. Medicine, ethics and the law in Ireland. (Dublin: Bloomsbury Professional, 2011). Mason, K.; Laurie, G. and Smith, A.M. Mason and McCall Smith’s law and medical ethics. (Oxford, UK: Oxford University Press, 2013). Rich, B.A. Strange bedfellows: How medical jurisprudence has influenced medical ethics. (New York, NY: Kluwer Academics/Plenum Publishers, 2001). Journal Articles Brisdon, J.; Hammond, C.; Leach, A. and Chester, M.R. ‘Making consent patient centred.’ (2003) 326(7424) British Medical Journal, 1159-1161. Buchanan, A. ‘Mental capacity, legal competence and consent to treatment.’ (September 2004) 97(9) Journal of the Royal Society of Medicine, 415-420. Drane, J.F. ‘Competency to give informed consent: A model for making clinical assessments.’ (1984) 252(7) JAMA, 925-927. Entwistle, Vikki, A.; Carter, Stacy, M.; Cribb, Alan and McCaffery, Kirsten. ‘Supporting patient autonomy: The importance of clinician-patient relationships.’ (July 2010) 25(7) Journal of Genn. Interm. Med., 741-745. Halliday, S. and Kitzinger. ‘Law in everyday life and death: A socio-legal study of chronic disorders of consciousness.’ (2015) 35(1) Legal Studies, 55-74. Karlawish, J.H.T.; Quill, T. and Meier, D.E. ‘A consensus-based approach to providing palliative care to patients who lack decision-making capacity’. (May 1999) 130(10) Annals of Internal Medicine, 835-840. Nicholson, T.R.J.; Cutter, W. and Hotopt, M. ‘Assessing mental capacity: The Mental Capacity Act.’ (February 2008) 336(7639) British Medical Journal,322-325. Nursing Practice. ‘Understanding and using the Mental Capacity Act.’ (21st May 2014) 110(21) Nursing Times, 16-18. Selinger, C.P. ‘The right to consent: Is it absolute?’ (2009) 2(2) British Journal of Medical Practitioners, 50-54. Teno, J.; Wenger, N.; Phillips, R.S.; Murphy, D.P.; Conors, A.F.; Desbiens, N.; Fulkerson, W.; Bellamy, P. and Knaus, W.A. ‘Advance directives for seriously ill hospitalized patients: Effectiveness with the Patient Self-Determination Act and support Intervention.’ (April 1997) 45(4) Journal of American Geriatric Soc., 500-507. Cases Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67. Burke v The General Medical Council [2005] EWCA Civ 1003. NHA Trust A v M, NHS Trust B v H [2002] Fam 348. Re B [2002] 2 All ER 449. Re T (Adult: Refusal of Medical Treatment) 4 All ER [1992] 49. W v M [2011] EWHC 2443. Statutes European Convention on Human Rights 1953. Human Rights Act 1998. Mental Capacity Act 2005. Mental Capacity Act 2005 Code of Practice 2007. Miscellaneous Sources Queensland Government, Queensland Health. ‘Implementation of guidelines: End of life care: Decision-making for withholding and withdrawing life-sustaining measures for adult patients.’ (n.d.) Ethics Team, Clinical Unit Centre for Healthcare Improvement, 1-61. Read More