Re AA and Aintree University Hospital v James

After controversial headlines such as 'Operate on this mother so that we can take her baby' (The Telegraph, 30 November 2013), Mostyn J felt obliged to release the full transcript and report for this 2012 Court of Protection case to clarify the facts.

Last November, it was reported that social services obtained an order from the court for a caesarean section to be carried out on Alessandra Pacchieri (who was not named at the time). The Telegraph ran a story saying that she was kept on a ward for five weeks, forcibly sedated then told her baby had been delivered and taken into care.

In fact, the application to the Court of Protection was an urgent one made on the 23 August 2012 by the NHS trust and not social services. It was supported by a consultant obstetrician and Pacchieri's psychiatrist on the basis that it was in her best interests to have a caesarean section at 39 weeks because of the significant risk of uterine rupture with a natural birth. She'd had two elective caesarean sections in the past. The Official Solicitor did not oppose.

Pacchieri had been detained under the Mental Health Act 1983 for a mental disorder that was psychotic in nature. Mostyn J found that she lacked capacity under s2(1) of the Mental Capacity Act 2005 to make a decision about whether to have a caesarean section.

When deciding whether it was in her best interests to undergo a caesarean section, Mostyn J regarded the principle of least restriction.

He said: "I would have thought it was in her best interests, that is, her mental health best interests, that her child should be born alive and healthy and that such result should be, if possible, achieved and such risks attendant should be avoided." He ordered a caesarean section in the circumstances.

Separate proceedings were taken under the Children Act 1989 about putting the baby into care, which has resulted in ongoing controversy. Mostyn J recognised that the interests of the unborn child were not to be considered by the Court of Protection because a child has no legal existence until birth.

He commented about the potential ongoing proceedings: "Although I emphasised that the Court of Protection had no jurisdiction over the unborn baby, I offered advice to the local authority (which were not a party to or represented in the proceedings, or present at the hearing) that it would be heavy-handed to invite the police to take the baby following the birth using powers under s46 of the Children Act 1989.

"Instead, following the birth, there should be an application for an interim care order at the hearing of which the incapacitated mother could be represented by her litigation friend, the Official Solicitor."

The Court of Protection's jurisdiction to make a decision about the procedure was bought into question because Pacchieri was habitually resident in Italy at the time of the hearing.

In this case, the caesarean section was an urgent issue. It is, however, unclear why the NHS trust left it until the 11th hour to make the application when she had been detained for five weeks.

The facts are unusual but this does show that clients who have mental health issues should discuss with their adviser, when they have capacity, using advance decisions or lasting powers of attorney for health and welfare.

See Re AA [2012] EWHC 4378 (COP)

 

Aintree University Hospital v James

This case, which went from the Court of Protection to the Court of Appeal to the Supreme Court for a final decision, focused on David James. Aintree University Hospital wanted the court to declare that certain life-sustaining treatment was not in his best interests.

James, 68, was admitted in May 2012 because of complications with a stoma. He developed an infection that caused chronic obstructive pulmonary disease, acute kidney injury and low blood pressure. He was placed on a ventilator.

After the Court of Protection hearing, he suffered a stroke and cardiac arrest. Further infections gave him septic shock and multiple organ failure. It was extremely unlikely that he would leave the critical care unit. The judge accepted that he was in a minimally conscious state because he recognised and was pleased to see his wife and son.

The hospital sought declarations from the court that three treatments, below, could be withheld because they were not in James' best interests:

• Invasive support for circulatory problems because it would be painful and the drugs involved would have significant side effects.

• Renal replacement therapy because it requires a large line to be inserted, which leads to a risk of bleeding
  or a stroke and is unpleasant for
  the patient.

• Cardiopulmonary resuscitation, which is deeply physical and can cause significant rib fractures.

James' family took a different view believing that he had pulled through other treatments received. He took great enjoyment out of seeing those that visited him and in the past he had been determined to beat his cancer and would feel the same way about his current condition, they said.

The Court of Protection judge found that it would not be appropriate to make the declarations sought. He was not persuaded that the treatment would be futile or overly burdensome or that there was no prospect of recovery.

The Court of Appeal made its decision three months after James died from a heart attack. The appeal judges applied two different approaches.

Sir Alan Wall said that when looking at futility of treatment, it must have "a real prospect of curing or at least palliating the life-threatening disease or illness from which the patient is suffering". Lady Hale, in the Supreme Court, disagreed and said this standard was too high.

Arden J in the Court of Appeal said that when looking at a patient's wishes, it should be on the basis that the individual would act as a reasonable person would act and as the treatment would be overly burdensome, a reasonable person would reject it.

Again, Lady Hale disagreed believing that wishes are individual to the particular patient so a reasonable patient standard is inappropriate.

She set out the test when deciding a patient's best interests to "look at his welfare in the widest sense, not just medical but social and psychological; they [decision-makers] must consider the nature of the medical treatment in question, what it involves and its prospects of success; they must consider what the outcome of that treatment for the patient is likely to be; they must try and put themselves in the place of the individual patient and ask what his attitude to the treatment is or would be likely to be; and they must consult others who are looking after him or interested in his welfare, in particular for their view of what his attitude would be."

Lady Hale agreed with the Court of Protection judge's approach, but further evidence showing James' decline led to the decision that it would not be in his best interests to give him the three treatments.

This case set out a comprehensive checklist for a decision-maker when deciding on a patient's best interests and shows that as someone's health declines, the decision a court reaches is very different. Wishes and feelings are just as important to consider as the nature and effect of the medical treatment.

See Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67

Lynsey Colman is an associate at Barlow Robbins

She writes regular Court of Protection case updates for Private Client Adviser