Hospital is refused permission to withhold “futile” treatment if patient’s condition deteriorates

BMJ 2012; 345 doi: (Published 10 December 2012) Cite this as: BMJ 2012;345:e8404
  1. Clare Dyer
  1. 1BMJ

A High Court judge has refused to give a hospital trust caring for a man deemed minimally conscious by clinicians a declaration that it need not offer him “futile and burdensome” treatment if his condition deteriorated.

The unnamed trust wanted a declaration that it need not give David James, a 68 year old former musician, cardiopulmonary resuscitation, renal replacement treatment, or invasive support for chronic low blood pressure in an attempt to keep him alive.

But at the Court of Protection Mr Justice Peter Jackson refused the declaration, which was strongly opposed by James’s family. The judge said, “Although Mr James’s condition is in many respects grim, I am not persuaded that treatment would be futile or overly burdensome or that there is no prospect of recovery.

“Although the burdens of treatment are very great indeed, they have to be weighed against the benefits of a continued existence.” He added that recovery did not mean a return to full health but the resumption of a quality of life that James would consider worthwhile.

The judge described the patient’s relationship with his family as “of the closest and most meaningful kind” and said that this carried great weight in his decision. He said that doctors had undervalued the limited quality of life that the patient could still enjoy. He also noted that James’s medical condition was “fluctuating,” adding that it would not be right to validate in advance the withholding of the treatments in all circumstances.

The family, from Liverpool, had accused the trust of putting James on the Liverpool care pathway, intended to provide a good death for patients who were close to dying. But a consultant told the judge, “I can unequivocally state we’ve never used or considered using the Liverpool care pathway in Mr James’s case,” and the judge accepted that evidence.

James, a well known guitarist in Liverpool, survived colon cancer 11 years ago. He walked into hospital last May with constipation but contracted pneumonia and had a stroke that left him with brain damage. He has also sustained kidney damage and had a cardiac arrest and is dependent on a ventilator.

Doctors told the court that he was prone to septic episodes that made further brain damage likely and irreversible.

The head of the team treating him at the trust, which cannot be named for legal reasons, told the judge that James was in a minimally conscious state. An independent doctor confirmed the diagnosis and estimated his chance of leaving hospital as less than 1%.

The official solicitor for England and Wales, acting for the patient, agreed with the trust that treatment would be disproportionate given the distress that it would cause and the minimum benefit it would deliver.

The judge refused the trust permission to appeal, but it can still ask the Court of Appeal to hear the case. The trust said that it was reviewing the judgment and considering the next steps.


Cite this as: BMJ 2012;345:e8404