More recently, the hospital applied to the Court of Protection for a declaration that, if James’ condition deteriorated, it need not offer him “futile and burdensome” treatment (cardiopulmonary resuscitation, renal replacement treatment, or invasive support for chronic low blood pressure).
Mr. Justice Peter Jackson refused the hospital's declaration, stating: “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 himself would consider worthwhile.
Justice Jackson further observed 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. ( Liverpool Daily Trust ) (BMJ 2012; 345: e8404)
This case is not surprising. Many cases (famously Wendland and Martin in the USA, for example) have drawn a sharp distinction between PVS and MCS patients. Clinicians can usually establish zero quality of life, and thus best interest, to stop LSMT for a PVS patient. But it is far tougher to do that for an MCS patient. Even British cases have denied clinician requests to stop LSMT in which severely brain damaged children would still interact with her environment, for example, by smiling at their parents.