Royal Free London Hospital NHS Foundation Trust v RH & Anor [2026] EWCOP 17 (T3)

This judgment was delivered in open court but a transparency order is in force. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the respondents and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so may be a contempt of court.[2026] EWCOP 17 (T3)Case No COP20031055
IN THE COURT OF PROTECTION
IN THE MATTER OF THE MENTAL CAPACITY ACT 2005
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 1 April 2026
Before
MR JUSTICE PEEL
Between
ROYAL FREE LONDON HOSPITAL NHS FOUNDATION TRUSTApplicantRHRespondentsAHRespondent
Debra Powell KC (Amy Street on 30 March 2026) (instructed by Bevan Brittan LLP) for ApplicantConrad Hallin (instructed by the Official Solicitor) for 1 st RespondentParishil Patel KC (instructed by Irwin Mitchell LLP) for 2 nd RespondentHearing Hearing dates: 24, 25, 27 and 30 March 2026
Approved JudgmentThis judgment was handed down remotely at 2pm on 1 April 2026 by circulation to the parties or representatives by e-mail and by release to National Archives..............................MR JUSTICE PEELPeel J:
[1]I shall refer to the subject of this application as “RH”, a 35 year old man.[2]At the start of this hearing, and pursuant to an application dated 23 March 2026, the Trust sought authorisation: i) To withdraw/withhold renal replacement therapy (“RRT”), vasopressors, antibiotic therapy and mechanical ventilation. ii) Not to attempt cardiopulmonary resuscitation in the event of a cardiac arrest.[3]By the time of closing submissions the Trust’s application had modified, as I shall explain, to: i) Continuation of RRT unless(a) it became impossible to insert a replacement line or(b) RH’s blood pressure dropped to a level where RRT could not be continued, and in either case the Trust would then be authorised to withdraw RRT. ii) Treatment by vasopressors and mechanical ventilation to assist with the next line replacement for a short period up to 24 hours i.e simply to support the procedure, but authorisation to withhold or withdraw such treatments in the event that they were required for reasons other than procedural support (e.g sudden deterioration) and in any event after a period of 24 hours had passed. iii) Not to attempt cardiopulmonary resuscitation in the event of a cardiac arrest. In any of the above scenarios, the clinicians would have the unfettered discretion to depart from/exceed the ceilings of care if clinically indicated.[4]The First Respondent is RH himself, represented by the Official Solicitor (“OS”), who broadly supported the Trust’s closing position. The Second Respondent is his mother, AH, who opposed the ceilings of care, but was supportive of continuation of RRT.[5]I pay tribute to the exemplary love and devotion of RH’s mother and his wider family. They are close knit, and this has been a considerable ordeal for them.[6]I also pay tribute to the extraordinary care and dedication of the clinicians and other treating staff which shone through in the papers and in the oral evidence.[7]Finally, I express my gratitude to counsel for navigating this difficult case with courtesy and skill.

The background

[8]It is necessary to set out the background in some detail to explain how the case developed.[9]RH has a lifelong history of biliary atresia, a rare liver disease whereby the bile ducts are absent or blocked preventing bile from draining the liver, and causing damage to the liver. He underwent a surgical “Kasai” procedure when aged seven weeks. In 2005, he had a liver transplant. He had three episodes thereafter of acute cellular rejection. In 2019 he presented with graft cirrhosis and portal hypertension. In November 2020, he was admitted with ascites (build up of fluid in the abdomen associated with portal hypertension which develops in liver cirrhosis). In May 2021, a shunt was inserted in the liver to treat portal hypertension.[10]In May 2024, he was diagnosed with a primary liver cancer, treated with radiotherapy and placed on the national waiting list for another transplant. His liver was cirrhotic.[11]His health deteriorated further. He had multiple admissions to hospital with ascites, fluid overload, infections (including peritonitis) and septic shock.[12]On 25 November 2025, he was admitted to hospital following an offer of a potential liver transplant. Upon arrival, he looked unwell. He was diagnosed with sepsis and required multi-organ support with antibiotics, renal replacement therapy, and high-flow nasal oxygen. CT scans showed possible poor perfusion of the bowel and bowel ischaemia. Ascitic white cell count indicated spontaneous bacterial peritonitis which is a common cause of infection in cirrhosis.[13]He was not judged to be suitable for a transplant. By 2 December 2025, he had recovered sufficiently to be judged suitable should one be offered. On 3 December 2025, he suffered a haemorrhage from the veins in the oesophagus, another complication of cirrhosis.[14]On 5 December 2025, a liver transplant was offered and the operation was carried out. It was a complex procedure, involving major bleeding. RH was intubated and thereafter made slow progress in the ICU. Two attempts at extubation failed. A percutaneous tracheostomy was inserted on 13 December 2025. He deteriorated further with signs of intra-abdominal catastrophe. On 14 December 2025, a laparotomy revealed peritonitis and soiling of all four abdominal quadrants with faeces. Multiple perforations were noted in the right colon and an emergency right hemicolectomy was performed. An ileostomy was carried out. Over the next few days, further surgeries were carried out to control bleeding and address infection.[15]On 28 December 2025, a bile leak into the abdomen from the hepaticojejunostomy was confirmed. This can lead to infection in the abdomen and the transplanted liver. Subsequently bile was seen to be leaking from the abdominal wound. He again developed sepsis. Initial drainage was unsuccessful, but on 7 January 2026 was established. On 23 January 2026, a stent insertion did not completely seal the leak. On 24 February 2026, ongoing large leakage was observed. The clinicians determined that no further surgical or other intervention would resolve the bile leak.[16]In late February/early March 2026 second and third opinions were obtained from respectively King’s College Hospital and Addenbrooke’s Hospital, both liver transplant centres, which agreed with this assessment.[17]Thus, by the end of February/beginning of March 2026, RH was critically ill, very frail, experiencing delirium and ongoing abdominal sepsis infection, requiring mechanical pressure ventilation by a tracheostomy, intravenous nutrition and antibiotics. He was subject to an ongoing large bile leak. He was permanently bed bound. Thereafter, RH deteriorated further with oxygen desaturations, rising inflammatory markers, worsening renal functioning and fluid overload. He had a collapsed lung and required an emergency bronchoscopy.[18]The MDT meeting on 27 February 2026 concluded that he was at the end of his life, and actively dying. The unanimous decision was to carry out no further or new interventions (vasopressors, renal replacement therapy, significant increase in ventilator support and cardiopulmonary resuscitation), but ongoing treatment would continue. Discussions with the family suggested a move to palliative treatment, including transfer to a hospice.[19]On 5 March 2026, RH developed new or worsening infection. The clinicians agreed that no further treatment options were available.[20]At about this time the family communicated their disagreement with moving to a palliative care plan. The clinicians treated RH with a low vasopressor dose to facilitate further discussions. An MDT meeting on 13 March 2026 re-affirmed the unanimous consensus that no treatment should take place beyond that which was already in place (by then the vasopressor had ended).[21]On 17 March 2026, RH’s mother asked the hospital to make a court application.[22]On 19 March 2026, a further MDT meeting led to a decision to apply to court. The doctors received legal advice in the light of the Townsend case that treatment should be given to save life while the dispute was resolved and accordingly vasopressors for blood pressure support, and renal replacement therapy were instigated, along with the mechanical ventilation. The introduction of RRT caused significant blood loss. But within two days, RH was weaned off mechanical ventilation, and placed on a relatively low sedative dose. For a few hours on 24 March 2026, the sedative was completely stopped, but RH said he was in pain and it was restarted.[23]Thus, by the first day of the hearing, on 24 March 2026, RH: i) Had been weaned off mechanical ventilation, although he needed assistance with secretion clearance. ii) Was sedated with a relatively low dose. iii) Was being treated with renal replacement therapy, and antibiotics to treat infections, but not vasopressors to assist blood pressure.[24]Given concerns raised by the Official Solicitor about the state of the capacity evidence at the start of the hearing on 24 March 2026, I asked the Trust to carry out a further assessment overnight, and resumed the hearing the next day, on 25 March 2026.

Capacity Evidence

[25]Dr B (Intensive Care Consultant) completed the COP3 dated 20 March 2026. He concluded that RH was incapacitous as a result of being sedated in intensive care. He had fluctuating consciousness and delirium. Dr B said that “If his clinical situation were to change and he were to be more alert then we may be able to repeat the capacity assessment…”.[26]Dr C (Consultant in Intensive Medicine) said in a statement dated 24 March 2026 that on 20 and 21 March 2026, after the RRT was instigated, RH was very unwell. On 22 March 2026, he showed some signs of improvement and was taken off the ventilator. He was conscious and Dr C was able to interact with him. RH was able to provide cogent input into basic day to day care such as pain management. On 23 March 2026, RH was drowsy and not alert enough to speak to Dr C. He was unable to understand or weigh information given by the speech and language therapy team to discuss oral intake of food, and the risk of aspiration and death. On 24 March 2026, RH was more awake, but drifted off mid-conversation. Dr C asked if he recalled what was happening in his current situation, and he replied that there was a bile leak before falling asleep. His view was that RH would not be able to reliably engage in a conversation around complex matters relating to clinical trajectory and life sustaining treatment, although he was able to engage about basic pain relief. Overall, he lacked capacity to make decisions around more complex clinical decisions or the trajectory of care. When conscious, he does not reach the necessary level of understanding the risks associated with his care management, retaining the information and weighing the risks.[27]Dr C’s supplemental statement dated 25 March 2026 (done at my request) said: i) He carried out an assessment at 19.00 on 24 March 2026, with a second ICU Consultant, and with AH present. Oxycodone infusion was stopped 1.5 hours before. RH could not recall meeting Dr E, the author of a further second opinion, who had met him that morning. He could not say where he was, or recognise his mother. He swiftly fell asleep. ii) He attempted an assessment again the next morning at 09.00, with the additional consultant present, as well as RH’s mother (AH) and his brother. The infusion had been stopped at 07.00. RH was able to communicate but was disoriented in time and place, unable to say where he was. He recognised Dr C, his mother and brother but again drifted off into sleep. It was not considered appropriate to resume questioning him. iii) RH can intermittently express some preferences about immediate and basic care, but does not have capacity to make decisions regarding more complex matters, including continuation or withdrawal of intensive care treatment. He continues to demonstrate fluctuating levels of consciousness and impaired cognition. He is unable to sustain attention during wakeful periods, or engage in meaningful discussion about condition, prognosis and treatment. All reasonable steps have been taken to optimise his ability to participate in an assessment, including altering his treatments, but to no effect. Overall, Dr C’s view is that RH lacks capacity.[28]In the light of this written evidence, AH accepted lack of capacity and the OS, on behalf of RH, indicated that she would be unlikely to reach a different conclusion. Capacity was not mentioned again and I therefore take it that the OS agrees that RH lacks the relevant capacity.

Oral evidence on 25 March 2026

[29]Dr C told me: i) The principal aspects of RH’s condition, all of which are irreversible and deteriorating, are: a) Failing kidneys. b) Failing liver. c) Inadequate bone marrow. The levels of platelets are very low as a result of the multiple condition facing RH, so bone marrow is not able to produce what is needed to fight infections and heal wounds. d) His intestinal system is not working. He has great difficulty swallowing. It is challenging to feed him orally anything more than small amounts of liquid such as soup, and there is an ongoing risk of aspiration. Total Parenteral Nutrition (“TPN”) is needed. e) Delirium/reduced consciousness which are manifestations of his overall critical illness. He has periods when he is more alert, and more broadly he is in a state of low consciousness. ii) RH’s oxygen levels have improved since RRT started on 19 March, which allowed him to come off the ventilator. However, as he deteriorates, it is likely he will again require mechanical ventilation. iii) His increased weight is likely to be because of fluid gain and is not a general sign of improvement. iv) There is no further or other surgical option for the bile leak. v) RH experiences pain and discomfort if and when: a) He is mobilised by nursing staff (e.g moving from bed to chair, or dressing wounds) which happens several times a day. b) The RRT line is inserted or replaced. When it was first inserted on 19 March 2026, it caused two days of bleeding. c) The vasopressor line is inserted or replaced. d) When he is mechanically ventilated. He has requested not to be on the machine, but, were it not for his wishes, he would now be on the ventilator. vi) He is dying. That is the unanimous opinion of all clinicians. If the RRT is withdrawn, he will die sooner. vii) If he stays on RRT it will not be possible to discharge him from hospital. If RRT is withdrawn, it would be possible to discharge him to a hospice, but not to his home.[30]Dr D, a Consultant in Intensive Medicine and Hepatology, and the lead clinician for liver critical care employed by the Trust, has been treating RH since November 2025. He agreed with Dr C and told me that: i) RRT is continuous treatment which requires RH to be connected to a machine with constant monitoring, blood tests and top ups of electrolytes. Since it started on 19 March 2026, RH has stabilised. His alertness is fluctuant, but there are more times now when he is alert. His underlying condition, however, remains unchanged. He emphasised that the improvement in presentation since RRT started was expected; the overall analysis remains the same. ii) RH is very ill. He has been very close to death on a number of occasions. iii) Keeping his chest clear of secretions is difficult. He has poor respiratory function. At times he can manage off the ventilator. Presently, he is not on it, but that is mainly because RH has expressed the wish not to be mechanically ventilated because it is uncomfortable; clinically, he should be on it. iv) He has very fragile skin. His pressure sores cause pain, particularly when he is mobilised to move to and from a chair, or for wounds to be dressed. v) The ICU environment is noisy, clinical, and busy. vi) He measures RH’s life expectancy in weeks if he continues to receive invasive treatment, although it could be less if there is an attack of chronic sepsis. If the RRT in particular is withdrawn, life expectancy would be measured in days. vii) In his view, it is better to withdraw the treatment than prolong life. If he remains on multi organ support, he will deteriorate and be subject to invasive treatment until death. He will lose the opportunity of peaceful time with his family as he cannot receive RRT outside the hospital. It is possible now to discharge him to a hospice if treatment is withdrawn. viii) Surgery for the bile leak is ruled out. He is too frail, the tissues are so broken down that it is not possible to repair it, and his abdomen is too hostile an environment for surgical intervention which would cause more harm. The bile leak is progressively deteriorating. Small bile leaks sometimes self heal, but this is a large one and self healing has not happened.[31]AH told me that: i) Despite his medical problems, RH has led a normal life. He has a girlfriend and two stepchildren, and three children by a former partner. He has a loving, caring wider family. AH paints a touching picture of RS’s interest, hobbies and social life replete with friends. I was shown some photos of RH which I was touched by. ii) She does not agree with the medical opinions. She believes that RH will recover. iii) RH has much improved since the RRT started. He is able to communicate and engage with visitors in hospital, enjoying talking to friends and family. He is in a chair some of the time. He is less drowsy, and more awake and alert as the pain relief has been reduced. He is orally taking limited liquid foods. His movements are improved. He smiles. He listens to music. He does not like the ventilator, but would go back on it if required. She thinks he is at times in discomfort, but not pain as such. He would want as much time as possible with his family, and would want as much treatment as possible.[32]Having heard oral evidence I adjourned the case to 27 March 2026 for closing submissions.

Evidence received on 26 March 2026

[33]After the evidence set out above had been orally given, a second opinion report was received from Dr E, a Consultant specialising in anaesthesia and adult intensive care medicine at Addenbrooke’s Hospital. He had reviewed the papers, and visited the hospital on 24 March 2026, where he discussed RH with a number of clinicians and treating staff, and met RH and members of his family. His report says that: i) RH was awake during his visit, but at times became drowsy and did not answer questions. He did not seem to be in significant distress. He has profound muscle wastage, jaundice and peripheral oedema. He is unable to move his limbs against gravity, and could not hold his own head or posture. The ongoing bile leak passes bile through the abdominal wound. He meets the definition of Chronic Critical Illness. ii) Every intervention possible has been made to control the bile leak which is a source of infection and sepsis. However, “There remains the possibility that with time (and in the absence of further clinical deteriorations) a “controlled” fistula (a matured tract from the source of the biliary leak to the skin) could form). If this then provided a period of respite from chronic intra-abdominal sepsis there may be an opportunity for recovery of organ function, strength and rehabilitation. I do not have the expertise to comment on the likelihood of this occurring, accepting that such a sequence of events has not occurred to date, despite best efforts, and so empirically the likelihood remains low”. iii) The current care and treatment are not overly burdensome. It may be considered proportionate to continue the current levels of care “whilst there ever remains a possibility that a fistula could form and so a resolution of sepsis could occur. In this circumstance, there may be an opportunity for him to recover…” iv) However, in the event of further deterioration, it would not be appropriate to significantly re-escalate organ support. What constitutes a “significant” escalation would have to be addressed and agreed upon by the treating team. v) He emphasises that this opinion is based on relatively brief period of review “and I do not have the longitudinal view of the case possessed by the treating clinicians, nor the depth of detail to which they are party”.[34]I received also an email from Mr F, Consultant Surgeon, saying that: the leak remains unchanged, save that it does not appear to be entering the abdomen; the leak will not heal in the context of ongoing infection and poor nutrition; there is no surgical solution to the leak.[35]Finally I received a MDT Note which indicated that, with reservations among some of the team, the fact that RH did not require vasopressors or mechanical ventilation while in receipt of RRT, and that he did not find RRT overly burdensome, suggested that the RRT could be continued as form of palliative care, but there should be no escalation or re-escalation of care in the event of deterioration. This was a change from their position at the start of the hearing and broadly accorded with Dr E’s approach.

Events on 27 March 2026

[36]Given the update on the Trust’s case and the arrival of new evidence the day before (including that of Dr E), I heard further oral evidence from (i) Dr D (for the second time) and Mr F.[37]Dr D said: i) The surgical team say that the bile leak is extremely unlikely to heal because of the ongoing infections, and poor nutrition, and any self-healing would take months. As for nutrition, RH has been intravenously fed for 90 days and his nutritional state has progressively declined. Infections are managed, but not removed, by the antibiotics, and there are multiple potential sources for the infections including the leak, the chest and the liver. ii) When RRT was started on 19 March, RH was weaned off vasopressors and mechanical ventilation after about two days. He emphasised that RRT was palliative, not a means of recovery. As RH is progressively deteriorating, so the risks upon replacement of the RRT line had increased. iii) He agreed that in theory it might be appropriate for vasopressors and mechanical ventilation to be used on a short term basis, if necessary, to enable the procedure of replacing the line to take place in routine fashion, but would not be appropriate if they were needed because of severe deterioration.[38]Mr F told me that: i) The bile leak has been discharging at about the same rate for several weeks. It is very unlikely to self heal, and he thought any self healing would take months even if all conditions were optimal, which they are not. He was unable to comment in detail as to nutrition and/or weight gain, but told me that RH’s albumin levels are low, which is an indication of poor proteinisation and deficient nutrition. ii) The bile leak, chest and liver are all possible sources of infection.[39]After this oral evidence, submissions were made and the revised application set out at paragraph 3 above was made.

The law

[40]As lack of capacity was agreed, I need say no more on the subject save that I have reminded myself of the relevant statutory criteria at sections 1-3 of the Mental Capacity Act 2005.[41]As for best interests, section 4 of the Mental Capacity Act 2005 is as follows:
“4 Best interests (1) In determining for the purposes of this Act what is in a person's best interests, the person making the determination must not make it merely on the basis of— (a) the person's age or appearance, or (b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests. (2) The person making the determination must consider all the relevant circumstances and, in particular, take the following steps. (3) He must consider— (a) whether it is likely that the person will at some time have capacity in relation to the matter in question, and (b) if it appears likely that he will, when that is likely to be. (4) He must, so far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him. (5) Where the determination relates to life-sustaining treatment he must not, in considering whether the treatment is in the best interests of the person concerned, be motivated by a desire to bring about his death. (6) He must consider, so far as is reasonably ascertainable— (a) the person's past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity), (b) the beliefs and values that would be likely to influence his decision if he had capacity, and (c) the other factors that he would be likely to consider if he were able to do so. (7) He must take into account, if it is practicable and appropriate to consult them, the views of— (a) anyone named by the person as someone to be consulted on the matter in question or on matters of that kind, (b) anyone engaged in caring for the person or interested in his welfare, (c) any donee of a lasting power of attorney granted by the person, and (d) any deputy appointed for the person by the court, as to what would be in the person's best interests and, in particular, as to the matters mentioned in subsection (6). (8) The duties imposed by subsections (1) to (7) also apply in relation to the exercise of any powers which— (a) are exercisable under a lasting power of attorney, or (b) are exercisable by a person under this Act where he reasonably believes that another person lacks capacity. (9) In the case of an act done, or a decision made, by a person other than the court, there is sufficient compliance with this section if (having complied with the requirements of subsections (1) to (7)) he reasonably believes that what he does or decides is in the best interests of the person concerned. (10) "Life-sustaining treatment" means treatment which in the view of a person providing health care for the person concerned is necessary to sustain life. (11) "Relevant circumstances" are those— (a) of which the person making the determination is aware, and (b) which it would be reasonable to regard as relevant.”
[42]The courts have emphasised in a variety of contexts that best interests is a broad concept.[43]The classic formulation of best interests is contained in the Supreme Court decision of Aintree University Hospital NHS Trust v James [2013] UKSC 67 where Baroness Hale said:
“[22] Hence the focus is on whether it is in the patient's best interests to give the treatment rather than whether it is in his best interests to withhold or withdraw it. If the treatment is not in his best interests, the court will not be able to give its consent on his behalf and it will follow that it will be lawful to withhold or withdraw it. Indeed, it will follow that it will not be lawful to give it. It also follows that (provided of course they have acted reasonably and without negligence) the clinical team will not be in breach of any duty toward the patient if they withhold or withdraw it. [35]The authorities are all agreed that the starting point is a strong presumption that it is in a person's best interests to stay alive. As Sir Thomas Bingham MR said in the Court of Appeal in Bland, at p 808, "A profound respect for the sanctity of human life is embedded in our law and our moral philosophy". Nevertheless, they are also all agreed that this is not an absolute. There are cases where it will not be in a patient's best interests to receive life-sustaining treatment. [39] The most that can be said, therefore, is that in considering the best interests of this particular patient at this particular time, decision-makers must look at his welfare in the widest sense, not just medical but social and psychological; they must consider the nature of the medical treatment in question, what it involves and its prospects of success; they must consider what the outcome of that treatment for the patient is likely to be; they must try and put themselves in the place of the individual patient and ask what his attitude towards the treatment is or would be likely to be; and they must consult others who are looking after him or are interested in his welfare, in particular for their view of what his attitude would be. [44] As was emphasised in Re J (1991), it is not for others to say that a life which the patient would regard as worthwhile is not worth living. [45] The purpose of the best interests test is to consider matters from the patient's point of view. That is not to say that his wishes must prevail, any more than those of a fully capable patient must prevail. We cannot always have what we want. Nor will it always be possible to ascertain what an incapable patient's wishes are. Even if it is possible to determine what his views were in the past, they might well have changed in the light of the stresses and strains of his current predicament. In this case, the highest it could be put was, as counsel had agreed, that "It was likely that Mr James would want treatment up to the point where it became hopeless". But insofar as it is possible to ascertain the patient's wishes and feelings, his beliefs and values or the things which were important to him, it is those which should be taken into account because they are a component in making the choice which is right for him as an individual human being.”
[44]In the recent Court of Appeal decision of Townsend v Epsom and St Helier University Hospitals NHS Trust [2026] EWCA Civ 195,Baker LJ said:
“68. The following principles are therefore clearly and consistently established by the case law and professional guidance. (1) All decisions about incapacitated adults, including clinical decisions, have to be made in the patient's best interests, taking into account all relevant circumstances and taking the steps identified in s.4 of the MCA. (2) If all parties (including family members, treating team and, if obtained, second opinion) are in agreement that it is not in the patient's best interests to continue life-sustaining treatment, then this can be withdrawn without application to the court. (3) If, at the end of the clinical decision-making process, there is disagreement between any of the parties about the continuation of life-sustaining treatment that cannot be resolved by discussion and/or mediation, then the matter should be referred to the Court of Protection. (4) If a court application is required, the NHS commissioning body with overall responsibility for the patient should bring and fund the application. (5) In exercising its powers to make declarations and orders about the patient's best interests, the Court of Protection cannot compel the doctor to give a treatment that he or she considers clinically inappropriate.” “69. Any decision about the care and treatment of a mentally incapacitated adult, including the withdrawal of life-sustaining treatment, must be taken in the patient’s best interests. There is no carve out for “clinical decisions”.” “74: In no circumstances can the Court compel the doctors to provide treatment that they consider clinically inappropriate. But the decision is for the Court, not the clinicians.”
[45]At para 86, conscious of possible implications, he said:
“Finally, it is clear from the arguments advanced in this case, including those set out in Professor Turner-Stokes’ report quoted above, that there continue to be grave concerns amongst professionals about the procedure to be followed in these cases. I am aware that very substantial medical and legal resources are taken up by treating patients in PDOC. There are plainly arguments to be made for a different approach. But that can only come about after a proper process of careful assessment and consultation. It may be that this will be incorporated in the revised Code of Practice which is anticipated shortly. Until that happens, these cases must be conducted and managed in accordance with the MCA and procedure specified in case law and existing guidance”
.

Analysis

[46]I am satisfied that by reason of sedation and his critical illness, which combine to result in delirium, drowsiness and fluctuating levels of consciousness, there is an impairment of and/or disturbance in the functioning of RH’s mind or brain such that he is unable to understand the relevant information, retain it, or weigh it to make a decision. I conclude, as the parties agree, that RH lacks the relevant capacity.[47]I turn therefore to his best interests.[48]Tragically, in my judgment, RH has no prospect of recovery. The clinical evidence is unanimous, that RH is deteriorating, and now has a life expectancy measured in weeks, because of critical illness, chronic bile leak, multi-organ failure (liver, kidneys, digestive system) and various linked complications in the chest, lungs, on his skin and elsewhere. There is no curative treatment and any treatment carried out for one medical condition has a knock on effect elsewhere, adding to the burdens. Repeated interventions, surgical and otherwise, have been unsuccessful. He has been in intensive care for about four months. The family’s belief that RH will recover is, in my judgment, based on a forlorn, if understandable, hope that a medical miracle will occur. I reject the submission made by the family that the bile leak could naturally heal itself. The evidence from the clinicians, which I accept, was that self healing is extremely unlikely, and insofar as Dr E raised it, he deferred to the treating staff and accepted that this was not his particular expertise. The fact that the clinicians would not categorically rule it out (as one said to me, “We do not deal in absolutes”) is unsurprising. I would not have expected them to guarantee it would not happen, but in my judgment it can be all but discounted. It requires optimal conditions which RH does not have. Poor nutrition and ongoing infections are barriers to self healing (I am not persuaded that RH has put on weight; the data is distorted by his fluid intake, and the physiotherapy report makes clear there has been no recent muscle mass increase). I note that there has been no sign of spontaneous healing since the leak was first observed. And if, as the clinicians said, it would take months to take place, the reality is that it would be outside RH’s timescale in any event, particularly as his condition deteriorates and becomes even less optimal for self healing. The medical context of this application is therefore RH’s irreversible condition, his progressive deterioration and his very short life expectancy.[49]I readily accept that since RRT started on 19 March 2026, RH’s presentation has improved. However, that is not because his condition has improved; it has been a form of stabilising, palliative care. It is not, sadly, a sign of potential recovery.[50]It was submitted that the position at 19 March, when RRT treatment, accompanied by mechanical ventilation and vasopressors, was given to RH represents a base line which should continue; in effect, that there should be no ceiling of care and no withdrawal or withholding of treatment. I reject that submission. It seems to me that I must look at the case holistically when determining best interests, rather than adopt a threshold approach as a starting point, and on the family’s case, end point.[51]RH is a “fighter”, who has striven with the love and support of his family to recover and lead life as fully as possible through past critical, life threatening episodes. He is undoubtedly more alert and awake, although in my judgment the overall picture is of a general drowsiness and low consciousness. Clinicians, Dr E and the OS’s agent have all seen him tired and less wakeful in the last few days. RH undoubtedly takes pleasure from being with friends and family. He likes to communicate with them, to sing, and to talk of his hobbies. He is clearly a courageous and positive person. He does not appear to be in intolerable pain at the moment, although there is discomfort and pain from the RRT treatment, mobilisation, the TPN, and other interventions. I accept that he would like to be given as much treatment as possible to recover, although that is on the assumption that he will recover, and not, it seems to me, based on an understanding of the medical evidence that he will not recover. His family would also wish for as much treatment as possible to be given to RH but, again, in my judgment, that is at least in part based on the false hope (as I so find) that he might recover. And I accept that in principle, if continuation of RRT enables RH to enjoy time with them, that in itself is a benefit to treatment.[52]Set against the benefits to RH and his family of their precious times together are the many current and potential future burdens of invasive treatment. Nobody disputes that RRT, mechanical ventilation, vasopressors (maintained by a central line), and other intravenous-based treatment are burdensome. He, in my judgment, experiences not just discomfort, but confusion, delirium and pain as well, particularly from mobilisation; I did not hear from any nursing staff but they are recorded as being very concerned about the pain he feels when being moved. These aggressive treatments will become more invasive, more burdensome and less tolerable as he deteriorates. He will be less conscious, more delirious during waking times, and less able to interact with his family. Such treatment would be futile and would prevent him from being able to spend his final time with his family in a peaceful setting away from the ICU. To prolong life would, in my judgment, exacerbate suffering.[53]I have come to the sad conclusion that the position of the Trust at the end of the trial is the appropriate outcome and in RH’s best interests. It allows him the opportunity of continuing with RRT, which has a palliative impact for him, on the basis that mechanical ventilation or vasopressor treatment should only be given to assist in the short term (and for no more than 24 hours) with the RRT line replacement. If the line replacement is successful, that enables him to continue at the same level of treatment as he currently experiences, and which does not appear yet to be intolerable and brings him some benefit. If there is a severe deterioration unconnected with the procedure of replacing the line, then the clinicians are authorised not to treat with mechanical ventilation or vasopressors. If the RRT fails (e.g by reason of a blood pressure drop) or the line cannot be inserted, then the treatment can be withdrawn or withheld. These are ceilings of care which in my judgment are in RH’s best interests. For the avoidance of doubt, my order is permissive; it does not prevent the clinicians from administering any treatment they think appropriate, but allows them lawfully to withdraw or withhold certain aspects of treatment.[54]I heard no submissions in closing about CPR which would be, in the words of the clinicians, potentially inhumane and they are not prepared to offer it. It offers no realistic prospect of success (RH would be unlikely to survive) and may cause harm. I approve the Trust’s application that CPR should not be given.[55]I will grant the application, and endorse the suggestion that RH should move into a palliative care plan. I acknowledge that this will be an unwelcome decision for the family, but I hope that they will be able to focus on spending time with RH in a comfortable, pain free setting.

Final comment

[56]I am told that the decision in Townsend has attracted considerable interest among professionals, trusts and clinicians who regard the implications as potentially far-reaching. I did not hear detailed submissions on the effect of Townsend and its relevance to this case was marginal. I understand that an application for permission to appeal to the Supreme Court will be made. In the circumstances, I do not consider it necessary or appropriate to engage with the effect of Townsend.