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An end-of-life decision in the Court of Protection

View profile for Sophie Maloney
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Court of Protection decides that man with irreversible stoma has the right to choose to die

Northern Care Alliance NHS Foundation Trust v KT & Ors [2023] EWCOP 46 (25 August 2023)

“…there comes a point where the laudable aspiration to prolong life is overtaken by the equally strong moral imperative not to protract death. Where that point arises is very difficult to identify…”. [Mr Justice Hayden]

At a two-day final hearing on 22 and 23 August 2023 in the Court of Protection, Mr Justice Hayden considered an application brought by Northern Care Alliance NHS Foundation Trust (“the Trust”) in respect of KT, a 53-year-old male.

On 25 February 2022, KT was undergoing dialysis for end stage kidney failure when he suffered a large left-parietal intracranial haemorrhage (a life-threatening type of stroke). This left him with significant brain damage.  He was an inpatient in hospital receiving life-sustaining treatment since that time (including haemodialysis and Clinically Assisted Nutrition and Hydration, “CANH”).

The medical professionals were unanimous in their view that he was in a ‘prolonged disorder of consciousness’, with no awareness or scope for rehabilitation. His life expectancy was limited to approximately one year.

KT was unconscious and so did not have mental capacity to make decisions about his medical treatment. The NHS Trust applied to the Court of Protection to seek a declaration that it was in KT’s best interests for him to stop receiving the life-sustaining treatment and to receive palliative care only.  KT’s wife (JT) and sister (GT) opposed the Trust’s application, along with the rest of the family.

The family share KT’s strong Pentecostal Christian faith; they have an unwavering belief in the power of prayer and of God to bring miracles. Their religious belief extends to the “confidence in the power of God to cure the sick, however parlous their circumstances may be” [para 3]. Prior to his diagnosis of kidney failure in 2017, KT was A Pastor in Holland. He was a very religious man and an active member of the Church.

The family strongly felt that KT would have wanted the treatment to continue, even if this meant that this may result in an undignified death. The family also felt that KT had a greater level of awareness than reported by the medical professionals in that he was aware of their presence when they visited him in hospital, had observed eye movements and his hands shaking in response to music.

On day one of the hearing, the Judge heard from several witnesses, including KT’s wife, his sister (GT) and a Pastor from Holland who knew KT very well and had travelled to the UK for the hearing. Video footage was also played in Court of KT preaching in his work as a Pastor, which was very powerful and gave the Judge a clear picture of what KT was like before suffering the haemorrhage. GT stated in her evidence that “death should happen for us all when our time comes and should not be hastened” [27].

There were several witnesses on behalf of the NHS Trust: a Consultant Neurosurgeon, a Consultant Nephrologist, a Consultant in Neurorehabilitation, and a Consultant in Palliative Care Medicine. The Trust also sought second opinions from a Consultant in Neurological Rehabilitation and a Consultant Nephrologist. The medical picture was complex. The challenges of continuing to receive dialysis for his kidney failure in his condition were considered. There was a risk that his could lead to a weakening of his heart functioning, a sudden drop in blood pressure and further brain injury, heart attack or cardiac arrest.

The Judge had a very difficult task to reach a decision in KT’s best interests, weighing all of the factors in accordance with s4 of the Mental Capacity Act 2005.

The Mental Capacity Act Code of Practice states that “all reasonable steps which are in the person’s best interests should be taken to prolong their life” but recognises that there “will be a limited number of cases where treatment is futile, overly burdensome to the patient or where there is no prospect of recovery. In circumstances such as these, it may be that an assessment of best interests leads to the conclusion that it would be in the best interests of the patient to withdraw or withhold life-sustaining treatment, even if this may result in the person’s death”.

The Judge accepted the family’s evidence that KT “would not have wished his life to be brought to an end… and that he would rather suffer and hold out for the will of God…KT lived his life by the Pentecostal sword and most likely would have wanted to die by that sword”. Evidence of KT’s wishes and feelings and his religious beliefs therefore weighed very heavily in the decision.

However, after very careful consideration, the Judge made the Order sought by the NHS Trust that it was lawful and in KT’s best interests to discontinue the life-sustaining treatment and to provide KT will palliative care only. In reaching this conclusion, he accepted the professional view that further treatment was futile and the risks associated with this could have led to an undignified and uncontrolled death, without his family around him.

He extended the Order to 21 days from the hearing to allow any family members to travel to spend time with KT before his treatment was withdrawn.

KT sadly passed away on 25 September 2023.

Northern Care Alliance NHS Foundation Trust v KT & Ors [2023] EWCOP 46 (25 August 2023)

Sophie Maloney, Partner in our Court of Protection team, represented GT in this very difficult case. For enquiries, please do not hesitate to contact our Court of Protection team on 01616 966 229.