The Health and Care Brief – The Case of JP: Best Interests, Delays and Family Consultations in the Court of Protection

The case involved JP, a 64 year old who, on 15 January 2016, suffered a ventricular fibrillation cardiac arrest and subsequent anoxic brain injury. In April 2016, JP was transferred to the Royal Hospital for Neuro-disability (RHN) for assessment and disability management, before being transferred to the hospital’s GP led ward, where he remained for 9 years. The ward effectively runs as a nursing home.

JP was in a prolonged disorder of consciousness (PDOC) since his injury in January 2016 and was described as being in a permanent vegetative state (PVS) from which he would not emerge. JP was in receipt of life sustaining treatment including clinically assisted nutrition and hydration (CANH), considered to be a futile treatment.

In Brief – The learning points

• Warning to authorities not to delay – here the Judge was highly critical of the 2 authorities in the decision-making process and delay.
• Families are not there to make best interests decisions but there to illuminate what P’s wishes and feelings likely were, and not to ascertain the family’s own wishes and feelings.
• Warning to the ICB not to be a passive bystander in seeking to mediate between family members with different views as to what is in P’s best interests. ICBs should remain vigilant and proactive in ensuring that the care package continues to meet P’s assessed needs appropriately.
• As soon as it was clear to authorities that the treatment was thought not to be in P’s best interests, proceedings should have been brought before the Court of Protection promptly.

Proceedings

The ICB made an application to the Court of Protection in February 2024 for a declaration that it was not in JP’s best interests to continue receiving CANH.

The medical experts providing evidence to the Court were in agreement that CANH would not reverse JP’s profound brain injury, nor restore him beyond his presently disordered consciousness, which had persisted for 9 years. It would not restore him either to the person he was or to the life he enjoyed prior to his brain injury. Alongside this, it was necessary to balance the obvious burdens of continuing treatment, which included the difficulty in managing his PEG and tracheostomy site. JP required 24/7 care to keep him stable which was burdensome for him. In addition, JP required care for the ongoing challenges of his cardiac condition and any acquired infection.

JP’s late partner, daughter, son and brother provided compelling evidence that, despite his religious beliefs, JP would not have wanted treatment to continue, their views focused on JP and directed to the central question of his best interests. Conversely, other family members including JP’s mother, sisters and niece were of the view that JP’s treatment should continue “until God’s ready for him”, expressing their views as their own rather than as JP’s.

Having considered the medical evidence and the evidence provided by JP’s family, Hayden J came to the clear conclusion that it would be contrary to JP’s best interests to be provided with hydration and nutrition and, particularly on the evidence of his children and late partner, not what JP would have wanted.

Follow up judgment

A second judgment was handed down by Hayden J in February 2025, [2025] EWCOP 8 (T3), addressing the issue of delay in bringing the matter before the Court when it was known that JP’s wishes would not to have been left as he had been for the 9 years since the cardiac arrest. The circumstances of the case made it necessary for the Judge to be critical of failures in the decision-making processes and the lack of appreciation of the collaborative nature of the obligations involved, for which the RHN and ICB apologised.

From the very early stages of his admission, there was powerful and strong evidence that JP would have hated to have been in the circumstances in which he found himself. His identifiable wishes and feelings, articulated by his son, daughter, brother and his late partner, either found insufficient expression or were not heard by those charged with the responsibility for his medical care. Notwithstanding the high standard of nursing care JP received, Hayden J concluded that the failure properly to address his best interests, in a timely way, compromised JP’s dignity. The wider family’s views became prominent, but as noted by the Judge, those views did not reflect JP’s.

Delay

Referencing a similar situation in the case North West London Clinical Commissioning Group v GU [2021] ECOP 59, Hayden J expressly endorsed the submission made on behalf of the Official Solicitor representing GU:

“as soon as there is any doubt over whether it is in the patient’s best interests to continue to receive CANH, appropriate steps must be taken in every case to ensure that a timely decision is made on that issue, one way or the other. If it is not possible to achieve unanimity amongst the treating team and all those with an interest in the patient’s welfare, or if it is considered that the decision is finely balanced, then steps must be taken to bring the matter before the Court, in a timely way, for a determination.” In this case, the RHN drifted into a well-meaning attempt to mediate the family dispute, which resulted in delay.

Hayden J endorsed Theis J’s observations in [2024] EWCOP 66 that the critical role of the ICB is to ensure “that the care package remains appropriate to meet the service user’s assessed needs” [Theis J’s emphasis] and goes on that “for the best interests reviews to be effective, the ICB is required to be vigilant and proactive in the process. Notwithstanding Theis J’s clear signal that they should not be “passive bystanders”, that appears to be what has happened again here.”

Consultation

Hayden J clearly stated with regard to best interest decisions and consultation with family members “… the family are not making the best interests decision, nor are they being consulted as to what they think is best. Their observations are solicited to illuminate what JP’s past and present wishes and feelings have been (where ascertainable), and on the beliefs and values that would be likely to influence his decision if he had retained capacity. The whole enquiry is focused on the protected party and engineered to promote autonomy for those who have lost capacity”.

There is no onus on the ICB or healthcare providers to broker an agreement between family members. Mediation in these circumstances risks conflating the family’s views of best interests with the authentic views of P himself.

How we can help?

If you would like further advice or guidance on Court of Protection applications or any of the issues highlighted in this article, please get in touch with co-author Anna Smith.