Judge was wrong to insist doctors should give “burdensome” treatment to minimally conscious patient, court rules

BMJ 2013; 346 doi: (Published 04 March 2013) Cite this as: BMJ 2013;346:f1455
  1. Clare Dyer
  1. 1BMJ

The Court of Appeal in London has unanimously overturned a ruling by a Court of Protection judge who had refused to sanction the withholding of certain life prolonging treatments from a patient deemed minimally conscious by clinicians.

Last December at the Court of Protection Mr Justice Peter Jackson refused doctors a declaration that they need not give 68 year old David James cardiopulmonary resuscitation, renal replacement therapy, or invasive support for chronic low blood pressure if his condition deteriorated.1

But Aintree University Hospitals NHS Foundation Trust in Liverpool, which was treating him, successfully appealed against the ruling. In a judgment handed down on 1 March the three appeal court judges revealed that they had allowed the trust’s appeal on 21 December but that James had died 10 days later despite efforts to keep him alive.

Even though it was no longer relevant in his case, the judges had been asked to give their reasons, said Alan Ward, who delivered the lead judgment.

James, a professional guitarist, survived colon cancer 11 years ago but was left with a stoma. He walked into hospital last May with constipation resulting from a problem with his stoma but contracted pneumonia and developed multi-organ failure.

He had a stroke, which left him with severe brain damage, and was on a ventilator. The judge was told that he was chronically colonised with pseudomonas, which was not amenable to treatment.

Jackson said that James’s relationship with his family was “of the closest and most meaningful kind” and that this carried great weight in his decision. The judge was “not convinced that the treatment would be futile or overly burdensome” or that there was no prospect of James’ recovery, in the sense of achieving a quality of life that he would consider worthwhile.

Ward described the case as “deeply worrying and unhappy.” The appeal court heard that James had deteriorated further after 18 December but then rallied and responded to visits from his family.

On 29 December he was given intravenous antibiotics after the team noted signs of sepsis. On 30 December he showed signs of renal failure, and the team initiated a blood transfusion, intravenous fluid resuscitation, and diuretics. After discussion with his family, the team gave circulatory support in the form of metaraminol. In the early hours of 31 December he had a cardiac arrest and died.

Jackson had erred in law in adopting too narrow a view of futility, said Ward. “He was wrong to concentrate on the usefulness of the treatment in coping with the crisis and curing the disease or illness, eg the cardiac arrest, and not also to be concerned instead with whether the treatment was worthwhile in the interests of the general wellbeing and overall health of the patient.”

Ward said that he could not accept the judge’s conclusion that the three forms of treatment were not overly burdensome. He said that the Court of Protection judge had also applied the wrong test with regard to the prospect of recovery. The correct meaning was “the prospect of recovering such good health as would avert the looming prospect of death if the life sustaining treatment was given.”

The stage was eventually reached that James’s life would become quite intolerable were he to endure another crisis, leading to a further setback in his health, he added. “Were that to happen, the risks and burdens of trying to keep him alive would be disproportionate to the diminishing opportunities for him to take pleasure from his family.”


Cite this as: BMJ 2013;346:f1455