In early cases considering the withholding or withdrawal of life-sustaining medical treatment from adult patients lacking capacity due to prolonged disorders of consciousness, futility was a highly determinative factor in the reasoning for decisions to cease treatment in the best interests of the patient, as the provision of futile treatment is not in a patient’s best interests. As was stated by Lord Goff in Bland: ‘it is the futility of treatment which justifies its termination’. However, the role of futility as a decision-making tool has become less relevant, indeed it could be argued as become lost, in more recent jurisprudence. This could be said to be highlighted in the case of Aintreewhere, although it appears to be the concept’s apex as a decision-making device, it is nevertheless relegated to a rubber-stamping exercise in these decisions. In this presentation, it is argued that futility should continue to be seen as having an important and vital role in decision-making in this area. Retaining futility as part of the discourse in best interests decisions aids this process. It opens up the possibility of challenging medical opinions on the finality of treatment, allowing for patients to argue a holistic approach to best interests. As such, futility should continue to be seen as part of withdrawal of treatment decision-making for adults lacking capacity, even where it has become more implicit in the reasoning given. These decisions should embrace futility as it exists as a qualitative assessment as part of best interests.

Lynn Kennedy is a final year PhD candidate at Edinburgh Law School. Her research focuses on examining the interplay between medical futility, best interests and experimental treatment, in particular the concept of red and green light futility. She has an LLB in Scots Law from the University of Strathclyde, an LLM in Medical Law and Ethics from the University of Edinburgh and an MRes in Socio-legal Studies from the University of Glasgow. She is also an HCPC registered paramedic. She has also worked as a School tutor on both undergraduate courses and online Masters courses.