Holistic best interests in court.
Last updated: 31 August 2025
In 2025, in two cases of disputed clinical decisions made for people lacking capacity, the clinical decisions were overturned by judges in the Court of Protection. On 15 May 2025, Alex Ruck Keen commented on the first case, [2025] EWCOP 17 (T3), in a post entitled “An important reminder that it is the judge who has the final say as to best interests”. He concluded, “This case provides a reminder, should a reminder be needed, that as soon as clinicians put a matter before the court on a best interests basis, it is always open to the court to give a different answer to that which they had reached. It is, in some ways, the Aintree case updated for 2025, by reference, in particular, to a granular analysis of wishes, feelings, beliefs and values (both past and present) as distinct factors.” The case, PK, involved the continuation of artificial nutrition and hydration through a nasogastric tube, as a gastrostomy could not be used.
The second case, [2025] EWCOP 31 (T3) (re YD), was also commented on by Alex Ruck Keene in a post entitled, ““There are more things in heaven and earth that are dreamt of in the philosophy of NHS treatment” – a Court of Protection story.” He concluded, “This case is another in the number of small but increasing number of cases (including Aintree v James at first instance[2]) in which the Court of Protection has upheld a patient’s understood wish for continued treatment in the face of medical concern as to whether it is in their best interests. This is immensely important – constructing the right decision for the person must include the potential for that decision to be to continue as well as for it to stop.”
Judges, quite correctly, take a holistic view and try to see everything in the round, and generally do not consider any factor to be determinative. I support that approach wholeheartedly. However, they also only consider one matter, best interests. This post considers whether these judgments overlooked a vital aspect of a holistic analysis: the long-term consequences of a decision for the patient. They do not (and probably cannot) consider broader societal matters, such as the allocation of NHS resources. I will also comment on that and whether the NHS can say that specific options “are not on offer”.
Note:
I was not involved in either case and have no additional information beyond what is publicly available.
Table of Contents
Introduction
When a person is unable to decide on their own healthcare, the Mental Capacity Act requires clinical teams to make decisions on their behalf, in their best interests. When a team chooses to give treatment, the decision is rarely disputed. In contrast, decisions not to start or continue a potential or actual treatment made using the best interests process are occasionally disputed, but this is increasingly the case.
Unsurprisingly, the Court of Protection usually agrees with the clinical decision, but it sometimes disagrees, which is fortunate. If it did not, it would imply that clinicians are always correct, but humans are not always right. We (clinical teams) should review cases where a different judgment is made to learn how to improve our skills and processes.
It is also true that judges are not always correct. The Court of Appeal and the Supreme Court act as a quality check, focusing on legal aspects and using the facts presented.
In this post, I do not intend to question the judgments made, given the facts presented and the scope of the information the judges considered. Instead, I wish to discuss whether the view was entirely holistic and whether, at times, the scope should be expanded and, if so, how.
Case YD: [2025] EWCOP 31 (T3)
The facts of this case are available from the published judgment. Jenny Kitzinger has also published a non-legal account of the trial in her Open Justice post, “A patient with ‘unusual’ spiritual beliefs: Is withdrawing a feeding tube in his best interests?”
YD was a fit, active 60-year-old man who had an intracerebral haemorrhage (stroke) in October 2024, rendering him unconscious. He was admitted to intensive care for a few weeks and had a tracheostomy while there. He could not swallow and had a gastrostomy tube inserted in January 2025. He remained with a prolonged disorder of consciousness attributed to his initial haemorrhage and likely pre-existing small vessel cerebrovascular disease.
Further recovery was not expected, and the clinical team, along with several external experts, agreed that continuing feeding and hydration through his gastrostomy tube was no longer in his best interests. They all agreed he was wholly unaware and unresponsive, satisfying the criteria for the vegetative state.
His current partner and a previous partner disagreed, arguing that his beliefs in the power of the mind were such that he would want to continue treatment as he knew he would recover. They also considered that he made attempts to communicate and showed willed movements. The case went to court.
The Official Solicitor summarised YD’s perspective: “His present feeling would be that his life now is dignified because of the love and care provided to him by his partners, and he would wish to continue in this way until the life of his body was ended by a process such as a heart attack, further stroke, or infection.’”
The Official Solicitor also raised the issue of whether the partners would “continue to visit at the level that they have”. She stated that their evidence “… was compelling: ‘they have thought about and planned for this, and they will be with [YD] every day for the rest of his life’” There was no discussion of this assertion.
The judge decided that YD would wish to continue treatment because he would not accept the poor prognosis given and because “YD has long held beliefs about the healing power of the mind, body and soul and to understand and, if required, push established boundaries based on his learning and understanding.” She also noted that “YD was compassionate, private person who was a fiercely independent thinker about a wide range of issues, in particular regarding the spiritual world and healing.”
Lastly, she reiterated that “There is a strong presumption in favour of preserving life which, in my judgment, having carefully evaluated the evidence in this unusual case, the Trust has not discharged.”
YD: How holistic?.
Mrs Justice Theis raised broader issues concerning the process that are highly pertinent, especially how bureaucratic and funding issues distort efficient use of scarce NHS resources when a case is disputed. This issue has been discussed in many recent judgments, such as by Mr Justice Hayden in [2025] EWCOP 8 (T3).
I wish to discuss the direct consequences. He will be transferred to a nursing home that can meet his clinical needs, but is unlikely to have the expertise or interest to review his best interests, nor will it offer a stimulating environment for him and his partners.
This leads me to question whether:
- The partners will indeed visit daily for up to five years
- The burden has been evaluated comprehensively, given the emphasis on being a private person
- Any consideration was given to his compassion for his partners, who might be stressed and distressed, as well as for others who might receive care if he did not.
His partners evidently care greatly for him, and while the debate about his best interests continued, this desire to advocate for him will have been motivating and satisfying. Once he is transferred to a care home with no likelihood of withdrawal of feeding and hydration to inspire and fulfil them, and in a less stimulating environment, they may visit less often. Their proposed daily visiting was probably a minor consideration, but not a trivial one.
One aspect of the burden of care, for example, pain or distress, was considered. The issue of his dignity was mentioned, and his partners suggested he would tolerate his loss of dignity “as part of the process of getting better”. It is likely that, over time, he would develop more spasticity, leading to more pain and further loss of dignity as care became more difficult.
The Official Solicitor argued that “There is powerful evidence that his values and beliefs encompassed dignity for dependent persons with disordered consciousness towards the end of life”. He is approaching his own end-of-life, albeit slowly, and he is a dependent person with a disordered consciousness. He was also considered intelligent. Therefore, given the limited change over the first six months, he might have accepted that the speed and extent of the influence of his mind over recovery was too slow and that his dignity would be too compromised.
Last, he was a man who was concerned for the well-being of others. While I accept the influence of his beliefs on his decision, it seems that other relevant values and characteristics have been overlooked. The Official Solicitor states that “his beliefs of sustaining others in difficult times, encouraging others to do good, and being positive and avoiding doing harm are worthy of respect.”
PK. [2025] EWCOP 17 (T3)
PK was a 73-year-old man who developed mixed vascular and Alzheimer’s dementia in 2019. He started receiving support from carers in 2023 and, at the time, understood their role and accepted the care. In April 2024, he had a right renal stone treated surgically with a nephrostomy. In October, he was admitted for more definitive surgery. Post-operatively, he had a left cerebral hemisphere transient ischaemic attack, with transient aphasia and right facial weakness.
He started on aspirin. He recovered, but he became confused; post-operative delirium was diagnosed. Four days later, he had an extensive left-hemisphere intracerebral haemorrhage, leaving him unconscious. He was transferred to a stroke rehabilitation service.
A nasogastric tube was inserted because he was unable to swallow. In December, the clinical team agreed that a percutaneous endoscopic gastrostomy tube could not be safely inserted. Meetings were held to discuss the withdrawal of the nasogastric tube. The family argued against it, saying that his interpretation of his Muslim faith meant he would choose to continue treatment.
He remained with a prolonged disorder of consciousness. He had several episodes of sepsis, some skin ulceration, and a split urostomy tube.
When the case was heard in May 2025, he was very frail with muscle wasting, contractures, and skin ulceration. He was unconscious and showed pain behaviours when care was provided. He needed regular chest X-rays of his nasogastric tube to check it was correctly located in the stomach.
He exhibited occasional behaviours indicative of low-level consciousness, including an understanding of language. Notably, he smiled at a linguistic error made by the independent expert, and the family reported several other examples.
The issue was whether the undoubted burden of care, such as pain and episodes of infection, was sufficient to overrule his episodes of pleasure and, more importantly, his longstanding and firmly held religious beliefs.
The judge concluded, “I have come to the clear conclusion that it remains in PK’s best interests for the NG tube to remain in situ and for him to continue to receive CANH.” He sets out the reasons clearly in paragraph 62, sections (a) to (j). In essence, he concluded that PK’s strong Muslim faith would lead him to consent to ongoing treatment despite the pain and lack of any further improvement.
PK: How holistic?
The records of best interests meetings I read often fail to set out any reasons for the decision, though the minutes usually make them apparent. In this case, the judge justified his decision clearly and logically. We should learn from his well-structured reasoning.
My concern is that the likely consequences of the decision were not considered. The judge wrote, “For the avoidance of doubt I checked with counsel and made clear I was not concerned with any subsidiary issues, such as ceiling of treatment or the location of treatment. All parties agreed I was only concerned to determine the one issue I have identified.”
Clinically, this seems inappropriate and fails to “evaluate the wider canvas”, which Mr Justice Hayden rightly considers essential.
The first direct consequence of this judgment is that PK will remain in an acute hospital bed until he dies. No nursing home will admit a patient dependent on a nasogastric tube because a regular chest X-ray is required to confirm its placement in the stomach. The option of a gastrostomy is not available because it is too risky. This was not discussed.
Treatments on offer
The question of what options are reasonable and must be offered or discussed has been discussed in the UK Supreme Court. The judgment, [2023] UKSC 26, has suggested that healthcare professionals have a duty to consider “reasonable alternative treatments”, but not all “possible alternative treatments”. In paragraph 57, they said, “The narrowing down from possible alternative treatments to reasonable alternative treatments is an exercise of clinical judgment to which the professional practice test should be applied.”
The England and Wales Court of Appeal reached a similar conclusion in [2023] EWCA Civ 605 where Lord Justice Coulson wrote (para 66), “In my judgment it is for the doctor to assess what the reasonable alternatives are; it is for the court to judge the materiality of the risk inherent in any proposed treatment, applying the test of whether a reasonable person in the patient’s position would be likely to attach significance to the risk.”
A busy acute hospital ward is a noisy and hectic place, and visiting by family is unlikely to be a good experience for them; nursing homes generally offer a more homely and relaxed environment.
Clinically, in complex situations, the clinical team and family meet to consider a person’s best interests over a range of options, rather than focusing on a single, defined question. In that case, it is sensible to discuss all probable future decisions, such as undertaking cardiopulmonary resuscitation or treating a life-threatening illness.
In this case (PK), the clinical team may deem active treatment to be “not on offer” or may decide it is not in his best interests. Either way, the family may disagree, and if so, the matter will be returned to the court.
The range of consequent treatment options should be part of the “wider canvas”, and this was not undertaken.
The last matter is “the elephant in the room” that is never discussed, and in this case, the elephant is particularly large: the resource implications for the health service.
In some cases, I have seen families stress that one factor the patient would consider was the broader consequences of continuing treatment, such as the effect on family and friends, but occasionally also on the NHS. I am unsure whether PK’s view on indirect consequences was considered.
I recall one person who stated repeatedly, when well, that she did not want active treatment for any severe illness “because I have had a good life, and the money should go to young people who are ill”. Despite this, when she had a stroke, leaving her with a prolonged disorder of consciousness, she was treated actively for five years, dying of ‘old age’ at 85 years.
Holism - lessons to learn
On 22 July 2024, when discussing the best interests of XY, Mr Justice Hayden wrote, “Judges are required to survey a much broader canvas of P’s life than the treating clinicians are able to. Central to this is the obligation to analyse the available evidence of P’s beliefs, faith and the code by which he or she lived their life, in order to establish, with as much clarity as possible, what they might have wanted, by way of treatment, if they found themselves in this parlous condition. Every case is inevitably highly fact-specific. The concept of ‘best interests’ is far wider than the purely medical.”
While I might dispute whether treating clinicians are unable to survey a much broader canvas, I agree that such a survey is crucial and that many clinicians do not, with one reason being a lack of time and training. I have discussed the vast breadth of personal factors and the importance of knowing your patient.
These two cases should encourage us to evaluate evidence pertinent to the best interests process in a more structured way, ensuring we consider each component and document the evidence leading to a conclusion. They should also lead us to pay more attention to the other factors mentioned in the Act.
Thus, we should emulate Lord Justice McKendrick’s careful consideration of each item given in the Mental Capacity Act when making significant decisions, documenting it in the minutes and summarising the main points arising.:
- Present wishes – judged by behaviours if unable to communicate
- Past wishes – stated, and implied through behaviours and choices
- Feelings – from past evidence
- Beliefs –from past evidence
- Values – from statements, behaviours, choices made
- Views of carers – the current local team and recent past carers
It seems unlikely that feelings, beliefs, and values will change significantly unless the person has survived and been conscious for a long enough period to revise ingrained personal characteristics, so past evidence should be sufficient.
Second, we should consider the last, catch-all phrase in the Act in an equally structured way. It recommends considering “the other factors that he would be likely to consider if he were able to do so.” Under this, one should consider how the person would use information about the broader implications of each option.
These cases (YD, PK) suggest that one should ask how a decision will be influenced by
- The long-term setting and its qualities, such as accessibility for friends and family
- The effects on family and friends
- Broader social consequences, including the use of resources
- The person’s experience, such as degrees of suffering and happiness
- These may be influenced by the extent of a person’s awareness
- Mode of dying, including impact on others
These cases also highlight the need for clinicians to document the evidence and reasoning behind their decisions. In straightforward cases, this should not be too effortful. It is vital. A person unfamiliar with the case will not know the facts and must rely on implications generated by the available evidence.
Lastly, when a decision that may affect life expectancy is being considered, all other likely choices that could impact life expectancy should be discussed if the main decision is to continue treatment. The same people will be involved, and the same information will apply. This is an example of making strategic decisions about a patient’s care; I have considered this when discussing competence in making best interests decisions. I have also discussed the inappropriateness of focusing solely on a single restricted decision when considering the application of the Mental Capacity Act in practice.
Conclusion
These cases have highlighted a significant difference between a legal approach to a best interests decision, which is solely focused on the patient, and a clinical approach, which, sometimes explicitly and probably always implicitly, considers other person-related but not person-centred considerations. Second, a legal approach only considers one decision, whereas a clinical approach should always consider the likely consequences of the initial decision, especially decisions that may need to be made as a consequence of the first decision.
A further crucial difference is the detailed justification provided by judges when rendering their decisions. While most clinicians might be able to explain and justify how a decision was made, it is generally rare throughout clinical practice and notably rare in the best interests decisions I have seen. Usually, the reasons are apparent from the background material presented, but they are not explicitly documented.
The Mental Capacity Act provides a helpful framework – to some extent. It naturally includes a range of other factors. Considering the Act has been in use for 20 years with many cases reaching court, it is surprising that no clear categorisation of these factors has emerged. It is time to develop a framework to identify likely or potential influences.