The patient had been found to lack capacity to litigate and make decisions as to his medical treatment. The Hospital appealed against rejection of its request for a declaration that it would be lawful to withhold treatment in the case of clinical deterioration, in particular the making of a ‘Do not attempt to Resuscitate’ instruction.
Held: The appeal had been granted, and the court now gave its reasons. There had been a set of tentative recoveries interrupted by recurrent infections leading to lowering of his blood pressure, septic shock and multiple organ failure. Every setback placed him at further disadvantage. He had sadly become a chronic carrier of the pseudomonas organism.
Sir Alan Ward said: ‘to answer the question whether the proposed treatment would be futile one has to ask what result the treatment seeks to produce. Futility is an ethically controversial concept because what is worthwhile can only be assessed relative to its goal. Thus the crucial question is to determine what the proper goal is for life-sustaining treatment, defined in s. 4(10) of the Act to be ‘treatment which in the view of the person providing healthcare for the person concerned’ (and by necessary extension, the view of the court which is called upon to sanction that treatment) ‘is necessary to sustain life.”
The court must pursuant to s. 4(6) consider, so far as is reasonably ascertainable, the person’s past and present wishes and feelings, his beliefs and values and the other factors he would be likely to consider if he were able to do so. The court must take into account the views of those caring for DJ as to what would be in his best interest and particularly what they consider to be his real wishes and feelings.
Laws, Arden LJJ, Sir Alan Ward
 EWCA Civ 65,  PTSR D22,  4 All ER 67,  Med LR 110, (2013) 131 BMLR 124
Mental Capacity Act 2005 1(5) 4(2) 4(6)
England and Wales
Cited – NHS Trust v Baby X and Others FD 30-Jul-2012
Baby X suffered a catastrophic accident. The doctors now sought to remove him from life support which would lead inevitably to his death. The parents resisted saying that there were signs of responsiveness, that there had been an improvement and . .
Cited – Wyatt and Another v Portsmouth Hospital NHS and Another CA 12-Oct-2005
The appellants’ daughter had been born with very severe disabilities. Her doctors obtained an order allowing them a discretion not to ventilate her to keep her alive if necessary. She had improved, but the family now sought leave to appeal an order . .
Cited – Re A (Male Sterilisation) CA 2000
The court considered the duties of a doctor, asking whether a procedure should be undertaken for a patient without the capacity to consent: Dame Elizabeth Butler-Sloss said: ‘The doctor, acting to that required standard, has, in my view, a second . .
Appeal from – An NHS Trust v DJ and Others CoP 6-Dec-2012
DJ was severely ill and incapacitated. He was completely dependent on artificial ventilation and required regular tube suction. The hospital trust issued proceedings seeking declarations (1) that he lacked capacity to consent to or refuse treatment . .
Appeal from – Aintree University Hospitals NHS Foundation Trust v James SC 30-Oct-2013
The hospital where a gravely ill man had been treated had 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 . .
These lists may be incomplete.
Updated: 30 April 2021; Ref: scu.471297