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Palliative care in the Court of Protection - weighing the options

View profile for Philip Jones
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Concern for the future of GP care provision

Judgment in The NHS Foundation Trust v K [2023] EWCOP 57 was handed-down on 14th December 2023. It concerned an application by a hospital trust (‘the trust’) for declarations with respect to treatment for K, a young person who was an inpatient in intensive care. K had an inherited progressive condition, such that the view of her treating doctors was that she was reaching the end of her life and it was in her best interests to receive palliative care.

The trust commenced proceedings because it had been difficult to engage K’s family in discussions about end of life care. Three options were before the Court of Protection (‘the court’): 1) for K to continue intubated treatment in ICU, 2) for K to be extubated, with no further attempts of re-intubation to be made, and 3) for K to have a tracheostomy to manage her breathing support. The trust submitted that option two was in K’s best interests, whereas the Official Solicitor, on behalf of K, favoured option three. Option one was not considered further by the Court, as the trust was not prepared to offer it (nor did the experts in the case consider it to be appropriate).

Judd J gave all the evidence and submissions ‘the most anxious consideration’ and expressed there was ‘no doubt at all that the overwhelming wish of the family… [was] for K to live.’. The court accepted that option three would give K a longer life than option two, albeit not by very much. Despite this, the court concluded it was not in K’s best interests to have a tracheostomy as proposed by option three.

In reaching its conclusion, the court held, with reference to the instructed experts in the case, that ‘they do not believe that K will be able to tolerate the interventions required with a tracheostomy without sedation or physical restraint.’. This evidence was accepted by the court, and summarised in the following way:

The truth is K is unlikely to be able to benefit much, if at all, from being more awake. On the contrary, she is likely to suffer in a way that cannot easily be explained to her. The interventions she would require are frequent and burdensome. She would live for longer, but this would come at a heavy price.’.

Ultimately, the court considered the potential benefits of a tracheostomy to be too poor to outweigh the significant burdens it would entail. Therefore, the only option available to the court was palliative care and extubation. Judd J acknowledged that this option would ‘carry with it the potential for distress and discomfort to K’ and mean that K’s time with her family would be ‘very short’. However, considering the care plan provided, it was the court’s ‘clear view’ that this pathway was in K’s best interests as opposed to a tracheostomy.

While making for sobering reading, this case represented an instance of an applicant trust setting out potential options for the court and clarifying what exactly was and was not an available course of action. Such an approach dealt with what is often, otherwise, confusion between the division of clinical expert opinion as to which option should be accepted.

Should you require any advice or assistance in respect of Court of Protection matters, please do not hesitate to contact our specialist team of Court of Protection solicitors on 01616 966 229 or by completing our online enquiry form.