Court of Protection Case Law Update
Added in: Court of Protection
Quite understandably, inhabitants of the Court of Protection world have their eyes forward awaiting the Supreme Court hearing of the application brought by Northern Ireland’s Attorney General, Brenda King, due to be heard later this month on 20 October. The Northern Ireland DoLS code of practice follows Cheshire West but the minister of Health, Mike Nesbitt, now seeks to revise the code so that a person can give valid consent to any confinement or restrictions through the expression of their wishes and feelings, even in circumstances when they lack capacity to do so. Nevertheless, it is still worth, as ever, taking a look back on some of the cases of note in the last couple of months.
The Hillingdon Hospitals NHS Foundation Trust v YD & Ors (Refusal of Withdrawal of Treatment) [2025] EWCOP 31 (T3) (Theis J)
YD was 60 years old when he was admitted to hospital in October 2024 having tragically suffered a bleed to the brain which resulted in him being in a prolonged disorder of consciousness.
Prior to this he is described as “a much loved and admired independent minded person. He guarded his privacy and has been described by his family as a calm, compassionate and intelligent man, with a natural curiosity about life in its widest sense, he was a voracious reader with many wider interests, in particular long held beliefs and a deep interest in natural remedies and the spiritual world.”
YD, it appeared, had (and has) no prospect of emerging from the permanent vegetative state in which he was now living. Given those circumstances, he was a clear candidate for withdrawal of clinically assisted nutrition and hydration. Nevertheless, his treating team of clinicians did not assert that continuing CANH was clinically inappropriate. The question for the court was, whether continuing CANH in those circumstances were in YD’s best interests.
A key point to this case is that YD had a number of people around him, who cared deeply for him and knew him, his wishes, feelings, beliefs, and values well. Theis J’s judgment is an example of understanding and navigating those complex relationships, the individuals understandings of YD and going further than ‘next of kin’.
YD had two partners (JG & MB), each partner being previously unknown to the other, as well as a close friend (NT). It is clear from the judgment, and in particular paragraphs 36 through 46, that they each knew him well, were aligned in their view of him and his wishes and feelings, and in particular how he would view traditional medical intervention through the lens of his own beliefs. Something which was explored more later in the judgment.
73. In considering what YD's decision would be if he had capacity Ms Gollop submits JG and MB have known him for over 20 years. Each of them were aware, without knowing names or numbers that YD was 'a central part of a community of people with shared beliefs that there was more to life than the material, and...that there are more things in heaven and earth that are dreamt of in the philosophy of NHS treatment. They had a shared belief that each person has psychic abilities but not every person can access them.' They each had an experience of YD that was not scientifically explicable and all explained that understanding the universe outside the material and 'exploring and developing his own transcendental powers, was [YD's] life's work'. NT emphasised the serious nature of YD's scholarship in this regard. Ms Gollop submits the evidence establishes that YD 'believed that one's spiritual belief system is a personal matter and one of continuous development'. YD believed in 'self-improvement, giving thanks and doing good...that we have multi-dimensional existence outside linear time and he reported that he experienced that existence when asleep and unconscious. He believed we can communicate thoughts in an extrasensory way and his beliefs were manifest in waking life personal experiences. He believed in life after death'.
74. Each of JG, MB and NT shared what they knew of YD's beliefs and practices that he had shared with them recognising that YD compartmentalised his relationships and they could not provide a complete picture. From their perspectives they were each clear that YD as a multi-dimensional person and believed in the power of the mind to heal the body, and the healing power of energy with his preference to heal himself but he knew his limits and would seek NHS treatment when needed. Each of JG, MB and NT were clear in their view that YD would have wished to have his physical existence maintained by CANH and would have wanted the continued opportunity to heal himself. As Ms Gollop states NT recounted 'the support and spiritual nourishment [YD] provided to him in the five years he cared for his grandmother when she had advanced dementia and did not recognise him. These were hard years but [YD] helped him work through his distress by enabling him to see that his love and care brought her dignity'. The Official Solicitor considers the matters that YD would be likely to consider relevant to the decision would include the fact that JG and MB visit daily, NT visits, he is provided with the services of a medium, is being provided with Reiki therapy, is in receipt of high quality medical care, the doctors assess him as not experiencing pain and that is lay terms Dr Hanrahan there does not appear to be great 'burdensomeness evidence'. Ms Gollop reminds the court of the need when considering the evidence to look at the wide picture regarding assessment of best interests.
In considering the matters before her and coming to a conclusion Theis J set out the following:
79. When considering what is in YD's best interests it should be considered in its widest sense. Consideration must be given to all relevant circumstances, to the person's past and present wishes and feelings, to the beliefs and values that would be likely to influence their decision if they had capacity, and to the other facts that they would be likely to consider if they were able to do so (s4(6) MCA 2005). Account must be taken of the views of anyone engaged in caring for the person or interested in their welfare (s4(7) MCA 2005). In considering whether treatment is in the best interests of the person concerned, the decision-maker must not be motivated by a desire to bring about the person's death (s4(5) MCA 2005).
80. The focus must be on whether it is in YD's best interests to continue to have the treatment, rather than whether it is in his best interests to withhold or withdraw it. The purpose of the best interests test is to consider matters from the patient's point of view, however that does not mean they are determinative.
81. The medical evidence from Dr N and Dr Hanrahan unite in their conclusion that YD is in a PDOC. They both conclude he is in a VS in accordance with the assessments that have been undertaken following the RCP Guidelines. They were each firm in their evidence about the diagnosis and the prognosis. Each were pressed by Mr Hockton about the relatively small changes that had been noted by JG and MB since June, some of which is noted in the nursing records, including by the OT. They did not dispute what JG and MB saw, or what was recorded, but attached no evidential significance to it regarding diagnosis as it lacked the consistency over a period of time and the other features as set out in the RCP Guidelines to be of significance. In his written report Dr Hanrahan stated that when considering the burdens of continuing with CANH there does not appear to be great 'burdensomeness evident'. That accords with the medical evidence of YD's relatively stability, he has not suffered from infections. Whilst Dr Hanrahan stated that in broad terms by virtue of his current condition the trajectory is he would continue to deteriorate, however he did not detract from the view set out in his report due to the high quality of care, both medical and from the family, that he is receiving. The evidence about pain is equivocal. There is evidence of YD grimacing whilst his limbs are being stretched and both JG and MB describing being aware when it appears he is in discomfort.
82. I agree with the Official Solicitor that the court now has a rounded picture of the values and beliefs that would be likely to influence YD's decision if he had capacity. I reject any suggestion that JG, MB or NT sought to bring their values, beliefs, wishes and feelings over those of YD, or risked conflating them. They each gave compelling evidence with dignity and composure and maintained the clear blue line between what they felt and their evidence about YD's values, beliefs, wishes and feelings. This is despite their obvious deep affection for YD. They were each able to bring their own perspective of YD's beliefs and values. I reject the submission on behalf of the Trust that the evidence 'did not provide a direct answer to the question of what [YD] would have wanted to do in these specific, extreme circumstances'. In my judgment, that is considering YD's best interests through too narrow a lens. If there is no evidence of such a conversation the court needs to carefully look at the relevant evidence as a whole, evaluate it and see what, if any, conclusions can reliably be drawn.
83. What has been so striking about the evidence about YD from JG, MB and NT is that, certainly in relation to JG and MB, even though they had each known YD for 20 and 24 years respectively, they had not known each other prior to October 2024, and were unaware of each other's existence. Yet despite that separation over such an extended period of time they were each able to independently confirm many common features about YD's wishes and beliefs. In particular, regarding the depth of his interest in the spiritual world and his limitless curiosity about such matters that he held strong beliefs about. YD has long held beliefs about the healing power of the mind, body and soul and to understand and, if required, push established boundaries based on his learning and understanding. From their descriptions YD was compassionate, private person who was a fiercely independent thinker about a wide range of issues, in particular regarding the spiritual world and healing.
84. I agree with the Official Solicitor that the evidence establishes that whilst YD 'might not dispute Dr Hanrahan's opinion that recent physical changes are the manifestation of involuntary, rudimentary new connections to the brainstem, he would be likely to see that opinion as a limited and incomplete explanation of what had caused those changes'. His long standing interest in the healing power of the mind, spirit or soul would very likely be values that would inform his decision if he had capacity. The changes that have been observed he would regard as positive signs and that he had the potential to make further changes. These are likely to be relevant factors that would inform his decision if he had capacity, and would be likely to be a factor in him wishing and feeling that he wanted to continue to be provided with CANH. YD would also likely factor in, due to his long standing beliefs in such matters, that others believe they are in communication with him.
85. When looking at what evidence the court has about what decisions he has made in the past, the understanding of what VS is and the medical prognosis by Dr N and Dr Hanrahan it is unlikely to have caused YD to wish or feel that CANH should be withdrawn. When considering the evidence about the past YD is likely to value the devotion shown by JG and MB. Their evidence when asked about how YD would feel about the amount of nursing care he requires, bearing in mind the evidence about what a private person he was, was powerful, as they each responded that YD would take it as part of the process of getting better or healing. They both described YD's high threshold for experiencing pain or discomfort in the past. This is consistent with his actions in the past (for example seeking the assistance of the NHS when he chose to) and his wider views of the holistic healing process. I agree with Mr Hockton, that from the evidence the court has about YD he would have approached the decision-making in this case in a very different way from Dr N and Dr Hanrahan.
86. Having stood back and considered through a wide best interests lens whether it is in YD's best interests to continue to receive CANH I have reached the conclusion that it is.
87. In my judgment the burdens do not outweigh the benefits. I have carefully considered each of the burdens it is said continuing with that treatment would involve for YD, both in the short and the long term, but I have to balance that with the benefits of such treatment continuing. Most importantly it would preserve his life. I depart from the evidence of Dr N and Dr Hanrahan as in the particular circumstances of this case I place greater weight on YD's past and present wishes, feelings, beliefs and values than they do. I accept the picture of YD painted by the evidence of JG, MB and NT. I do not regard the continuance of CANH in this case as futile where it sustains life. Having looked at the wider evidential picture I do not accept the narrow view taken by Dr Hanrahan as it did not pay sufficient regard to the evidence of YD's beliefs and values and wishes and feelings. Whilst it is recognised that any awareness on the part of YD, if present, is extremely limited and there may be little or no further improvement and a trajectory of general deterioration it is far from clear that in the circumstances YD is in he would regard his continued existence as a burden. There is a strong presumption in favour of preserving life which, in my judgment, having carefully evaluated the evidence in this unusual case, the Trust has not discharged.
Theis J moves on from this to consider wider aspects of this case, namely the rose of ICB’s:
88. The focus of this judgment has been on YD. It is right that during the evidence the wider issue of the impact of cases such as this was raised. The Trust acknowledge there is scope for further work in relation to the timing of applications of this nature: on the one hand, there is a well-recognised need to bring cases of this kind promptly if treatment is not regarded as being in P's best interests, but on the other hand, there is the risk of unintended consequences if this leads to patients having prolonged admissions to acute neurorehabilitation beds versus a community placement. There has been no suggestion in this case that the Trust delayed in making this application.
89. The issues raised are (i) whether the ICB should be a party to proceedings of this nature, or (ii) whether the ICB's engagement in matters (without party status; as occurred in this case) satisfies their need to be actively involved in withdrawal decision, and (iii) whether patients should, where possible, be placed in community beds, pending the outcome of an application.
90. The Official Solicitor considers there is a lack of clarity in this case whether Dr N considered that YD should have been transferred to a nursing home some time ago and court proceedings initiated whilst he was there, or that he would not stand in the way of YD's CANH continuing so long as it did so at a nursing home not at the rehabilitation unit.
91. It is clear that on a case by case basis these issues should be proactively and carefully considered at each stage, full disclosure must be made of any such concerns or considerations raised so that the Official Solicitor and the Court are fully appraised of the issues. The relevant ICBs should take a proactive interest in any such issues, taking such steps as are required to avoid delay and making sure all relevant parties are represented in any court proceedings and, if required, urgent directions sought from the court in any ongoing proceedings.
92. None of these observations detract from the very clear message in cases such as NHS South East London Integrated Care Board v JP and others [2025] EWCOP 8 and NHS North Central London Integrated care Board v Royal Hospital for Neuro-Disability & XR [2024] EWCOP 66 about the need for effective decision making structures being in place for those who are in a PDOC, the need for careful and regular review and evaluation about what is in their best interests and, where required, an application being made to the Court of Protection for a decision as to what is in the patient's best interests.
Darlington Borough Council v AW & Ors [2025] EWCOP 33 (T3) (Henke J)
It is not lost on me that if one were to go back through the last few of these periodic case law updates, one would find in each a case which grapples with the complexities of applying the time-specific MCA in practice. It is a thorny issue, and one which will continue to rear its head.
This is a desperately sad case. AW is 18 years of age. In early 2022 she moved schools and reported some bullying at her new school. In November 2022 she was punched to the left side of her head by another pupil following which an MRI scan showed no abnormalities. However, she reported continuing headaches and double vision.
What followed showed the despair to which AW was subject. She did not return to school she became withdrawn, engaged in self-harming behaviours, expressed suicidal ideation, displayed disordered eating and made attempts to take her life. She consistently expressed a wish to end her life before her 18th birthday as a way of avoiding adulthood.
Dr Ince provided evidence as to her capacity:
- Dr Ince's substantive report is dated the 14 April 2025. Dr Ince saw AW on three occasions the 29 October 2024, 7 March 2025 and 21 March 2025. All interviews took place at AW's placement. The interview on 21 March 2025 took place with AW having the support, at her request, of her support worker. Dr Ince noted that "Throughout the three interviews, AW displayed a clear understanding of the Court of Protection proceedings and she spoke eloquently and at length."
- In summary, and in relation to the functional test set out in Section 3 of the MCA 2005 Dr Ince concluded as follows:
- Dr Ince concluded that AW has a confirmed diagnosis of ASD. In relation to this diagnosis AW's presentation is characterised by sensory sensitivity, cognitive rigidity, marked difficulties with transitions and relational boundaries and atypical executive function. There is evidence of difficulties with interoceptive awareness, a concrete thinking style and emotional processing deficits all consistent with the autistic profile. AW also meets the criteria for Complex Post Traumatic Stress Disorder. The experiences which have led to this traumatic stress disorder results in an affective instability, a negative self-concept, relational hypervigilance and a pattern of maladaptive coping strategies to include self-injury, disordered eating and social withdrawal. AW also presents with disordered eating behaviours, most closely aligned with Atypical Anorexia Nervosa.
- Dr Ince concluded that overall, AW presents with a constellation of interacting difficulties, to include Autism, developmental trauma, effective instability and relational risks. The conditions do not exist in isolation and her presentation is not adequately captured by one diagnostic label. AW's functional profile varies significantly depending on emotional state, environmental stability, relational safety and perceived autonomy. These factors form the causative nexus between the diagnostic and the functional test.
- Dr Ince provided a further report on the 6 May 2025 responding to a significant number of questions of clarification which had been raised. In summary:
a. AW has capacity to conduct the proceedings. Dr Ince applies the presumption of capacity and notes that on the three occasions he assessed AW she was able to understand, retain and use and weigh the relevant information.
b. AW has capacity to make decisions on her residence. The presumption of capacity is not rebutted.
c. In relation to care, AW is able to understand and retain the relevant information. However, in response to specific triggers, AW was unable effectively to use and weigh the relevant information. However, those periods, if she is supported, should be broadly avoidable or if they do occur, will be short lived. This is not a pass on a fluctuating capacity. However, Dr Ince asserted that there is on an "interim basis" sufficient evidence to rebut the presumption of capacity as a consequence of contextually predictable episodes in which AW displays executive function secondary to her trauma and neurodevelopment disorders.
d. In relation to contact as a global and general decision, AW's capacity is not absent. However in moments of emotional arousal, mistrust or relational stress her ability to appraise information is impaired and episodically disrupted. On this decision, AW's presentation is consistent with trauma related executive disfunction and the known difficulties that autistic individuals may experience when navigating relational ambiguity, safeguarding intervention and emotionally nuanced social context. "It would be a categorical error to interpret her minimisation or brief responses as a lack of capacity per say; rather, these must be seen as context and communication patterns that require sensitive interpretation."
e. In relation to contact with SP and NY, Dr Ince concluded that AW lacks capacity to make the decision on contact with both.
f. AW has capacity to engage in sexual relations.
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a. Dr Ince repeated his findings that AW lacked capacity to conduct the proceedings but if subject matter capacity is compromised (such as on care) then AW may not have capacity and this would be caused by episodes of dysregulation.
b. AW's starvation has significant impact on cognitive functioning and emotional regulation. The cumulative effect of proposed nutritional deprivation likely impaired her ability to use and weigh relevant information effectively during periods of acute malnutrition. However, AW's decision not to eat or take nutrition were rooted in authentic, consensually rational decision making informed by lived experience. The evidence suggests that this decision reflects a capacity as to decision making.
c. There are periods when AW has capacity to make decisions on care and support and contact and periods when she does not. These periods are not random but contextually predictable arising in specific identifiable circumstances such as relational rupture and perceived threats to her autonomy.
d. Anticipatory declarations could be operationalised effectively for AW provided that the care team is furnished with a clear, objective criteria and is supported by ongoing training to maintain vigilance and procedural accuracy. (Emphasis added).
Ultimately, the parties were in agreement as to whether the court should utilise its jurisdiction to make anticipatory declarations:
- At the conclusion of his evidence there was agreement between all parties that the court ought not exercise its power to make anticipatory declarations to cover a situation where AW loses capacity in a relevant domain in the future. Dr. Ince's evidence did not establish with sufficient clarity the circumstances in which AW may lack capacity, nor the circumstances in which contingent best interest decisions will need to be made. There was further agreement between all parties that AW's continuing risks can be appropriately managed under the existing statutory framework in ss 5. and 6 MCA 2005, with the 'backstop' of an urgent application to the court available at all times if needed. The local authority was particularly aware of its ongoing obligations.
Henke J provided her reasoning:
- On 22 May 2025 I gave a brief oral judgment setting out that I agreed with the partes' assessment of the evidence and the conclusions that they drew from it.
- Having heard Dr Ince's evidence it is plain that AW does have capacity in all relevant domains, namely:
- In this case I have jurisdiction to make anticipatory declarations, but I decline to do so. Sections 5 and 6 MCA can be used to manage the circumstances of this case and any future crisis that AW may suffer. Whilst AW has put herself at risk in the past, I have reminded myself that I must guard against any suggestion that unwise decision-making is analogous to decision-making without capacity. Capacitous adults may make wise or unwise decisions. The point is that they have the capacity to choose and make informed decisions however unwise. I have reminded myself that I must guard against the protection imperative and paternalistic decision-making. I must respect AW's autonomy. I have carefully considered whether the evidence establishes with sufficient clarity the circumstances in which AW may lack capacity and in the event that AW does, the circumstances in which contingent best interest decisions would need to be made. I have concluded based on the evidence as a whole, of which Dr Ince's evidence is a significant part, that the evidence in this case does not provide that sufficient clarity. Accordingly, I decline to make anticipatory declarations which, on the evidence, would not be practical to implement.
- In the circumstances I dismissed the applicant's application to the Court of Protection.
- AW was present for the final hearing and is aware of my decision. She is an intelligent young person who was delighted to have her capacity and thus her autonomy recognised. She remained willing to accept the support offered to her by the statutory agencies and those statutory agencies remained committed to her. AW's parents were in agreement with my decision-making.
- I have written this judgment to enable AW to have a brief record of court proceedings which were before the court for a year. During that time AW was deprived of her liberty first under the Inherent Jurisdiction relating to children (s.100 Children Act 1989) and later in the Court of Protection wherein it was declared in the interim that she lacked capacity in the relevant domains. However, once the expert evidence had been finalised and tested before the court, it became apparent that in her case the evidence did not support the presumption of capacity being displaced. AW is an adult now with capacity, able to make good and bad choices about her own future. I wished her well on 22 May 2025 and I do so again as I end this judgment.
- That is my judgment.
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a. AW has capacity to litigate the current proceedings;
b. AW has capacity to make decisions about her accommodation;
c. AW does not lack capacity on a global or permanent basis to make decisions about her care and support,
d. AW has capacity to make decisions about contact with others
e. AW has capacity to engage in sexual relations; and
f. AW has capacity to make decisions in respect of her treatment and medication.
A reminder that the tools established within the act, ss.5 and 6 MCA 2005, are the first line, providing the powers (and protection from liability) necessary in emergent situations.
