Mental Capacity Case

Norfolk and Norwich University Hospitals NHS Foundation Trust & Ors v Tooke & Ors

Hayden J

Northern Care Alliance NHS Foundation Trust v KT & Ors [2023] EWCOP 46 concerned a 53 year old man with end-stage kidney failure who had sustained brain damage during treatment and was now in a prolonged disorder of consciousness.  The treating Trust sought a determination that continued dialysis was not in KT’s best interests given the risks of treatment, his limited life expectancy, his lack of awareness and the risk of an unplanned and unpleasant death.  The application was opposed by members of KT’s family, all of whom were Pentecostal Christians who believed in the power of prayer and the potential for miracles.   KT himself was a pastor, and his family argued that in light of his firmly held religious beliefs, he would want treatment to continue.  They also considered that KT retained some minimal awareness. 

Despite neither the Trust nor the Official Solicitor accepting the family’s evidence., the court unhesitatingly found that KT would not have wanted treatment to be withdrawn notwithstanding the medical evidence. ‘He would rather suffer and hold out for the will of God’

Nevertheless, Hayden J found that continued treatment was not in KT’s best interests.  His likely wishes were not determinative, and, the court found, he would not have wanted to cause distress to medical professionals and carers by requiring them to continue to provide futile and burdensome treatment to him. 

Previous cases have held that where a person’s wishes as to the continuation of life sustaining treatment prior to losing capacity should be followed, where they can be ascertained with sufficient certainty.  This case suggests that the same approach will not necessarily be applied when those wishes are for the continuation of treatment rather than its withdrawal, though no explanation of the difference in approach is given.