(Court of Appeal, Laws, Arden LJJ, Sir Alan Ward, 1 March 2013)
The 68-year-old man as a result of treatment for cancer of the colon was left with a colostomy and a stoma. Ten years after surgery he experienced complications which resulted in him contracting an infection while in hospital. He was admitted to the critical care unit due to multi-organ failure, respiratory failure, cardiovascular and renal failure. He was intubated and placed on ventilator support.
The man remained on the critical care unit for 7 months where his condition deteriorated further. An application by the NHS Trust for declarations that it would be lawful, as being in his best interests, in the event of clinical deterioration, for the clinical team to withhold treatment including: cardiopulmonary resuscitation; invasive support for circulatory problems; and, renal replacement therapy in the event of deterioriation in renal function. The application was refused but the judge held the man did not have capacity to litigate or to make decisions about medical treatment. When the man's condition deteriorated permission to appeal was granted and an urgent hearing convened, although, unfortunately the man died shortly after the hearing.
The judge had erred in law in adopting too narrow a view of futility. He was wrong simply to look at the past successful effect of the treatment without also having regard to the improvement, or lack of improvement, that such treatment would bring to the general health of the patient. He was wrong to concentrate on the usefulness of the treatment in coping with the crisis and curing the disease or illness, e.g. the cardiac arrest, and not also to be concerned instead with whether the treatment was worthwhile in the interests of the general well-being and overall health of the patient. The narrowness of the judge's focus undermined his judgment and the appeal would be allowed on that basis alone.
It was in the best interests of the man that it would be lawful to withhold treatment and for declarations to be granted to that effect.