Aintree University NHS Foundation Trust v James [01.03.13]

Court of Appeal makes declarations allowing hospital to withhold treatments from critically ill patient; the question to be considered was whether the proposed treatments would be futile.


This Court of Appeal judgment gives important clarification to the term futility when considering medical treatment. The Mental Capacity Act Code of Practice sets out 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 those circumstances, the best interests of the patient may be to withdraw or withhold life-sustaining treatment, even if this may result in the person's death.

What has been unclear is the extent to which treatment can be regarded as futile. If a patient's condition is so critical and parlous that there is nothing that can be done to save them, arguably the only appropriate treatment should be palliative as anything else would be futile. This though assumes treatment must be curative for it not to be regarded as futile. Philosophically there will of course be many gradations of treatment and therefore the questions will be "what constitutes cure?" and "is cure the only aim"?

These questions can only really be answered subjectively by the treating medical staff, having considered a patient's best interests and discussed these with those who know the incapacitated patient well. Some conditions cannot be cured but of course can be lived with, giving a reasonable quality of life. Those conditions are unlikely to come before the courts when considering futility of treatment. Good sense will prevail. In Aintree the Court considered the future of a patient in a minimally conscious state, with, according to the medics, extremely poor prospects of recovery.

The Court of Appeal helpfully defined the proper goal for life-sustaining treatment as securing therapeutic benefit for a patient, i.e that treatment must have the "real prospect of curing or at least palliating the life threatening disease or illness from which the patient is suffering". This definition is important in assisting those treating severely neurological impaired patients and the courts in deciding the extent to which treatment should continue or be withdrawn.

Importantly the Court accepted that, whilst of course the patient's own wishes must be considered, those wishes should be considered in the context of the parlous medical situation the patient is in. For example, where a family may say a patient would want to be kept alive at all costs because of the possibility, however tiny that may be, of a cure being discovered, doctors and courts will weigh that against the medical reality of the patient's situation. And so, if that chance of a cure is not remotely a realistic proposition and, medically, treatment to keep a patient alive has no real prospect of curing or at least palliating the condition, then it is likely the courts would rule the treatment is futile and therefore not in the patient's best interests.


In 2001 Mr James suffered colon cancer. The tumour and the affected part of his colon were removed. He was left with a stoma in the left iliac region. In May 2012 he was admitted to hospital due to a complication with his stoma. In hospital he acquired an infection. Following this he became extremely unwell, with a pattern of tentative recoveries interrupted by recurrent infections leading to lowering of his blood pressure, septic shock and multiple organ failure.

The hospital sought a declaration that it would be lawful for certain treatments (CPR, invasive support for circulatory problems and renal replacement therapy) to be withheld in the event of a clinical deterioration. At first instance, on 6 December 2012, Jackson J declined to make these declarations.


The hospital's appeal was heard by the Court of Appeal on 21 December 2012. The Court of Appeal allowed the appeal and made the declarations sought by the hospital.

Sadly Mr James died on 31 December 2012.

The Court of Appeal has subsequently handed down a full written judgment. Giving the leading judgment, the Right Honourable Sir Alan Ward held as follows:

  • Pursuant to the Mental Capacity Act 2005, any decision must be made in the best interest of Mr James. Section 4 of the Act and paragraph 5.31 of the Mental Capacity Act Code of Practice set out some of the factors and guidance to be taken into consideration.
  • The real question in the appeal was whether the proposed treatments would be futile. The proper goal for life-sustaining treatment is to secure therapeutic benefit for the patient, that is to say the treatment must have the real prospect of curing or at least palliating the life threatening disease or illness from which the patient is suffering.
  • When treatment is being considered to save life, the focus is on the medical interests of the patient. The patient's own wishes are not the deciding factor in working out his best interests, particularly if such wishes are not attainable, and do not dictate what is in his best medical interests. In any event, his wishes, if they were to be the product of full informed thought, would have to recognise the futility of treatment, that treatment would be extremely burdensome to endure and that he would never recover enough to go home.