Mental Capacity Case

The NHS Foundation Trust v K

Judd J


In this case Judd J had to consider an application for declarations with respect for K, a young person who was currently an inpatient in intensive care, with a progressive condition and whose treating doctors considered to be reaching the end of her life.   The application was brought because it had proven very difficult to engage her family in discussions about end of life care.

As Judd J identified, there were only three options: (1) to continued to treat her in ICU, intubated so as to allow her to receive continuous breathing support; (2) to extubate her, and to stop any further attempts to re-intubate in the event of respiratory difficulties; and (3) to have a tracheostomy to manage her breathing support.   Options 2 and 3 would give a prognosis of weeks or months; option (2) unlikely to be more than days.  The Trust was not prepared to offer option 1 (nor did any of the experts instructed to report to the court consider it to be appropriate); it submitted that option 2 was in K’s best interests, but was prepared to offer option 3 if the court disagreed with option 2.

On the facts of the case, Judd J found that option 3 was not in J’s best interests, because thew prospects of K being able to obtain any benefit from a longer life and/or interaction with her family following a tracheostomy were too poor to outweigh the significant burdens that this would entail.  Whilst she was clear that option 2 (palliative care and extubation) would also carry with it the potential for distress and discomfort to K with symptoms that will require careful management. It would mean that the time with her family would be very short and realistically it seemed there is no alternative to remaining in the ICU. As she noted at paragraph 45, [u]ltimately, however, it is my clear view, having read the care plan provided, that it is this pathway which is in her best interests, not a tracheostomy. I will therefore make the declaration sought by the Applicant Trust.”


Whilst this case is – sadly – not unusual as regards the clinical dilemmas involved, it was perhaps unusual in the clarity with which the Trust set forward what options were and were not on the table, so that there was not the (troubling) confusion which can otherwise reign as to the dividing line between the clinicians offering their clinical expertise as to the appropriateness (or otherwise) of the possible options, and the court deciding on behalf of the person as to which option to accept.  

As a further example of a judge approaching matters self-directing themselves as to clarity, we note also University Hospitals Southampton NHS Foundation Trust v Miss T & Ors [2023] EWCOP 54, concerning both the options for, and the best interests of the patient with learning disability in choosing between, treatment for cervical cancer in circumstances requiring, as he noted, the patient to be rendered unconscious for three days, potentially giving rise to PTSD.


*Tor having been in the case, she has not contributed to the summary.