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Coming on the heels of the Supreme Court of Canada decision in Cuthbertson v. Rasouli, 2013 SCC 53, the October 30, 2013 decision of the U.K. Supreme Court in Aintree University Hospital NHS Foundation Trust v. James, [2013] UKSC 67, offers helpful guidance on the role of a physician dealing with end of life care. That issue was not fully addressed in Cuthbertson, which was concerned at bottom with the venue for adjudication of such cases. A majority of the Court held that the Consent and Capacity Board had jurisdiction to decide the issues, while the minority held they were properly decided by a Court.

In Aintree, Mr. James was in the critical care unit of the hospital on a ventilator, suffering complications arising out of surgery for colon cancer. He was completely dependent on artificial ventilation, and his chances of leaving the unit were said to be extremely low. The matter came before a High Court judge on December 5 and 6, 2012. The hospital was seeking declarations that treatment such as renal replacement therapy and cardiopulmonary resuscitation should not be used if needed by Mr. James. The family disagreed. As described by the judge, Mr. James was visited regularly by family and friends, was happy to see his wife and “appeared to enjoy watching videos on his son’s phone.” He did, however, have “limited awareness.”

The judge refused to make the declarations sought by the hospital. He held that it could not be said the treatments would be futile or overly burdensome. The hospital appealed the decision. The appeal came on for hearing 15 days later, during which time Mr. James’ condition deteriorated significantly. The Court of Appeal overturned the judge’s decision and granted the declarations. Sadly, Mr. James passed away on December 31, 2012. The Supreme Court granted leave to appeal “in view of the importance of the issues.” A five judge panel was convened. The reasons were authored by Baroness Hale.

While the issues were ultimately governed by the Mental Capacity Act, 2005, the Court was able to draw on previous cases to frame the issues. Guidance was also provided by the General Medical Council, which published helpful information for physicians dealing with these issues:

5.31 All reasonable steps which are in the person’s best interests should be taken to prolong their life. There will be a limited number of cases where treatment is futile, overly burdensome to the patient or where there is no prospect of recovery. In circumstances such as these, it may be that an assessment of best interests leads to the conclusion that it would be in the best interests of the patient to withdraw or withhold life-sustaining treatment, even if this may result in the person’s death. The decision-maker must make a decision based on the best interests of the person who lacks capacity. They must not be motivated by a desire to bring about the person’s death for whatever reason, even if this is from a sense of compassion. Healthcare and social care staff should also refer to relevant professional guidance when making decisions regarding life-sustaining treatment.

5.32 As with all decisions, before deciding to withdraw or withhold life-sustaining treatment, the decision-maker must consider the range of treatment options available to work out what would be in the person’s best interests. All the factors in the best interests checklist should be considered, and in particular, the decision-maker should consider any statements that the person has previously made about their wishes and feelings about life-sustaining treatment.

5.33 Importantly, section 4(5) cannot be interpreted to mean that doctors are under an obligation to provide, or to continue to provide, life-sustaining treatment where that treatment is not in the best interests of the person, even where the person’s death is foreseen. Doctors must apply the best interests’ checklist and use their professional skills to decide whether life-sustaining treatment is in the person’s best interests. If the doctor’s assessment is disputed, and there is no other way of resolving the dispute, ultimately the Court of Protection may be asked to decide what is in the person’s best interests.

The difficulty facing an appellate Court in these cases is that, given the range of circumstances that might arise, the Court is reluctant to lay down precise principles which might be taken to guide the outcome. Baroness Hale quoted from an earlier decision: “The infinite variety of the human condition never ceases to surprise and it is that fact that defeats any attempt to be more precise in a definition of best interests.”

Nonetheless, an appellate Court can lay down general principles and factors that a judge or decision-maker will have to consider. In this case, it was a matter of emphasis that caused the High Court judge and the Court of Appeal to differ in the result. The Supreme Court ultimately preferred the reasons of the High Court judge, who emphasized Mr. James’ quality of life and found that, in the circumstances existing at the time of the hearing before him, the proposed treatment could not be described as futile.

Having considered the guidance from previous cases and from the medical profession, Baroness Hale made these important comments:

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 well-being 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…

Where a patient is suffering from an incurable illness, disease or disability, it is not very helpful to talk of recovering a state of ‘good health.’ The patient’s life may still be very well worth living. Resuming a quality of life which the patient would regard as worthwhile is more readily applicable, particularly in the case of a patient with permanent disabilities. As was emphasized in Re J (1991), it is not for others to say that a life which the patient would regard as worthwhile is not worth living.

Recently, in Carter v. Canada (Attorney General), 2013 BCCA 435, the British Columbia Court of Appeal declined to strike down the Criminal Code provisions against assisted suicide on constitutional grounds. Leave to appeal the decision to the Supreme Court of Canada is being sought. If the appeal is ultimately heard by the Court, the reasons of the U.K. Supreme Court in Aintree will undoubtedly be looked to as a source for jurisprudential guidance.