22.23In some cases, therefore, the treating clinicians will have concluded that they will not offer specific treatment(s) to the patient (or would wish to withdraw such treatment) because they consider that either offering or continue to offer it would be clinically inappropriate, futile or (potentially) on the basis that its costs so far outweigh its benefits to the person that the treatment will not be funded by the relevant funding NHS body. In such a case, it would be irrelevant that the patient lacks the capacity to consent to the treatment because it would not be offered to them even if they had capacity and were requesting it. In this situation then, assuming (as it is not unknown) that no other treating clinician would offer (or continue to offer) such treatment, then there is a good argument that there is, in fact, no best interests decision for the court to take.

22.24This situation arose in the pre-Aintree case of An NHS Trust v L, FL and TL3[2013] EWHC 4313 (Fam), [2013] COPLR 558. in which Moylan J was of the view that there were no treatment options available. He was, however, constrained (with evident unhappiness) to make a best interests decision because none of the parties before him were prepared to submit that such was the case. In a future case, it is quite possible, we suggest, to imagine a situation in which a judge would decline to make a best interests determination.

22.25This issue may be revisited by analogy when the Court of Appeal decision in Re MN4[2015] EWCA Civ 411, [2016] Fam 87, (2015) 18 CCLR 521. is heard before the Supreme Court in December 2016 (see further chapter 22), when the Supreme Court will examine what the Court of Protection should do where a social care option is not put on the table. In the interim, however, we would suggest that, if – on a proper analysis – there is no best interests decision for the Court of Protection to take, then if the NHS trust wishes to have legal ‘cover’ for its actions (most obviously where there is a dispute between the clinicians and the patient’s family) then it should make clear in its application that it is not seeking any form of determination as to the person’s best interests, but rather a declaration under MCA 2005 s15(1)(c) that (for instance) not providing a specific form of treatment is lawful because it is futile. Another alternative would be to bring an application in the Queen’s Bench Division under Part 8 of the Civil Procedure Rules (CPR) for a declaration that the trust’s actions (or potentially proposed omissions) are lawful.5See further Vikram Sachdeva, Alex Ruck Keene and Victoria Butler-Cole, ‘The MCA in the Supreme Court – Reflections on Aintree v James’ [2014] Eld LJ 54.