Court of Protection case law update: March 2025

Sarah Hutchinson analyses two recent Court of Protection rulings of interest to practitioners.

NHS South East London Integrated Care Board v JP & Ors [2025] EWCOP 4 (T3) (24 January 2025)

This case concerned a best interests decision regarding continuation of CANH for JP, a 64-year-old male. On 15 January 2016, JP collapsed and suffered a ventricular fibrillation cardiac arrest. Following admittance to hospital, imaging revealed anoxic brain injury.

On 21 April 2016, JP was transferred to the Royal Hospital for Neuro-disability (RHN) to the Brain Injury Service (BIS) for assessment and disability management. A percutaneous endoscopic gastrostomy tube (PEG) was inserted which remained in situ as at the date of the hearing.

JP was then transferred, in August 2016, to a General Practitioner led ward. It was noted that the ward is effectively run as a nursing home rather than a hospital and that the RHN is not part of any NHS Trust, but rather is a charity. JP remained on that ward at the time of the hearing (nearly ten years).

Evidence on JP’s condition was provided by the Consultant Neuro-Rehabilitation Specialist, who was JP’s consultant whilst he was with BIS and reassessed him in January 2025. An independent expert report was also produced by a Consultant in Rehabilitation Medicine and JP’s GP prepared a statement. Each of the clinicians concluded that JP had been in a prolonged disorder of consciousness (PDOC) since his injury in January 2016. JP was described as being in a “permanent vegetative state (PVS)” and it was concluded that “it is no longer in [JP]’s best interests, and has not been for some time, to continue to receive CANH”.  

The position of the clinical team was that continuation of CANH was not in his best interests and should be withdrawn. Their palliative care plan envisaged JP would not survive longer than 3 weeks should CANH be withdrawn.

JP’s family members were widely consulted. There was a difference of opinion between those who hold a strong Church based faith and were concerned with the teachings of the bible, and those who were concerned with analysing JP’s wishes and best interests. The ICB remained neutral on the application, but it was noted that the Official Solicitor supported the Declaration on JP’s behalf that CANH was not in his best interests.

The judge noted the delay in ‘best interest’ decision taking in relation to JP but chose to reserve any further comment on RHN’s delay in bringing the matter to court to a separate judgment at a later date.

Legal framework

In his judgment, The Honourable Mr Justice Hayden makes reference to the legal framework analysed in his judgment in North West London Clinical Commissioning Group v GU [2021] ECOP 59. In this judgment he emphasised that:

“Regular, sensitive consideration of P’s ongoing needs, across the spectrum, is required and a recognition that treatment which may have enhanced the patient’s quality of life or provided some relief from pain may gradually or indeed quite suddenly reach a pivoting point where it becomes futile, burdensome and inconsistent with human dignity. The obligation is to be vigilant to such an alteration in the balance.”

The Court referred to Lady Hale’s judgment in Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67 when considering the way the question relating to ongoing medical intervention should be framed:

“Hence the focus is on whether it is in the patient’s best interests to give the treatment, rather than on 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 that they have acted reasonably and without negligence) the clinical team will not be in breach of any duty towards the patient if they withhold or withdraw it.”

Judgment

Consideration was given to JP’s religious beliefs and the views of his family members who hold a strong Church based faith (notably his mother and siblings). These views identified JP’s best interests in terms of his faith and considered that JP would wish to wait until “God was ready” to take him. These views were framed in relation to withdrawing CANH and the effect on those that made the decision to do so. The Court noted that these views focussed on ‘I’ and not ‘him’.

Conversely, JP’s children phrased the question, not as to whether CANH should be withdrawn, but as whether JP would “prefer not to undergo prolonged medical intervention that doesn’t lead to a significant recovery or allow him to live as he once did”. It was considered that this most accurately reflected JP’s authentic wishes and approach to life. It was noted that there was a tension between the views and the court preferred the views of JP’s children when considering JP’s best interests.

Overall, the Court considered that it had received “cogent and compelling evidence that JP, notwithstanding his religious beliefs, would not wish to have been left as he has been”.

The Court concluded that treatment to provide JP with hydration and nutrition would be futile and burdensome and not what he would have wanted. The Proposed Palliative End-of-life Care Plan was implemented.

Derbyshire County Council v Grundy [2025] EWCOP 1 (T1) (20 January 2025)

Facts

This case concerns a further application by Derbyshire County Council for the committal to prison of Mr Grundy and an application to activate a suspended sentence of imprisonment imposed on 22 August 2023. This was in relation to Mr Grundy continuing to visit P at her home in breach of the suspended sentence.

The court was concerned with:

• Whether Mr Grundy had capacity to conduct committal proceedings, to comprehend and make decisions as to the injunction order and the suspended sentence which was handed down on the previous application.
• If the four alleged breaches were proven.
• Whether to deal with sentencing if capacity was established and the breaches made out.

Legal framework

In deciding whether to proceed in Mr Grundy’s absence, the Court considered the guidance in Sanchez v Oboz & Anor [2015] EWHC 235 (Fam) (06 February 2015) and delivered an ex tempore judgment.

Consideration was given to the MCA 2005 in determining Mr Grundy’s capacity to understand the injunction and suspended sentence order.

The Court followed the course of action taken by Cobb J in Sanchez (18) by dealing with the breach in this hearing and then the sentence separately.

“…in the event that I found the alleged breaches proved on the basis of the material presented, I would intend to give the father (and paternal grandmother) an opportunity to make representations to the court in person, or through legal representative, by way of mitigation or otherwise, in relation to the imposition of the penalty. This course it seems to me strikes the proportionate balance between advancing the proceedings as contemplated, while sufficiently protecting the respondents’ Article 6 right to make representations before I specifically consider removal of their liberty.”

Judgment

The court considered that Mr Grundy had been properly served, he had had reasonable time to prepare for the hearing and was legally represented.

In relation to the first issue, a social work assessment carried out as part of the previous sentencing hearing concluded that Mr Grundy lacked capacity leading to interim declarations in this respect. A subsequent assessment was carried out by another social worker which opined that Mr Grundy was capacitous. A medical expert, Dr Parvez, was instructed who considered these assessments. Mr Grundy’s lack of engagement with the medical expert resulted in a desk top assessment concluding that there was insufficient evidence to conclude that Mr Grundy lack capacity, though there were some caveats.

Despite the medical expert’s report raising some caveats in relation to capacity, it was noted by the court that they do not go so far as to say that Mr Grundy lacks capacity in any area or that there is sufficient evidence to rebut the presumption of capacity.

The court considered evidence which noted that Mr Grundy expressed that “he will continue to visit P no matter what the court order says” and “that there would be expected consequences from not attending a court hearing.”

The court considered that Mr Grundy did have capacity to understand the terms of the injunction, capacity to understand that if he disobeys the order that he will be in breach and could go to prison, and capacity to understand that a suspended sentence has been imposed and that the consequences of his continued breaches could be the activation of that sentence. The court also found that Mr Grundy has litigation capacity.

In relation to the second issues, the court considered that the breaches were evidenced by police bodycam footage, and this evidence was unchallenged as Mr Grundy refused to attend court.

In relation to the third issue, the sentence was passed down in a subsequent hearing the following week in Derbyshire County Council v Grundy [2025] EWCOP 2 (T1) (29 January 2025) after Mr Grundy had been produced by the police under a bench warrant. The court determined that, given Mr Grundy’s persistent breaches of the injunction, activation of the existing suspended sentence and a sentence of 28 days’ immediate imprisonment was the appropriate sentence.

FULL JUDGMENTs

https://www.bailii.org/ew/cases/EWCOP/2025/1.html

https://www.bailii.org/ew/cases/EWCOP/2025/2.html

Sarah Hutchinson is a pupil barrister at Spire Barristers.