Court of Protection judge stresses “crucial significance” of issuing proceedings promptly in best interests case

A judge sitting in the Court of Protection has highlighted the “crucial significance” of issuing proceedings promptly, after finding a failure by a hospital to address a man’s best interests in a timely way, which “compromised his dignity”.

In NHS South East London Integrated Care Board v JP & Ors [2025] EWCOP 8 (T3), Mr Justice Hayden said: “The inherent dignity of a human being imposes an obligation on those treating him, actively to promote his dignity. I very much regret to say that the Royal Hospital for Neuro-disability (RHN) has failed to meet this most fundamental of obligations.”

The case concerned JP, who, since April 2016, has been in a prolonged disorder of consciousness (PDOC).

JP had initially been admitted to St Thomas' Hospital, where imaging revealed an anoxic brain injury. In April 2016, he was transferred to the Royal Hospital for Neuro-disability (RHN) and into the care of the Brain Injury Service (BIS).

JP is entirely dependent on nursing care, including the management of his double incontinence. He is at the lowest level of human awareness. The only responses he can make are reflexive.

The judge observed: “It requires to be stated that, from the very early stages of his admission, there was powerful and strong evidence that JP would have hated to have been in the circumstances in which he found himself.

“His identifiable wishes and feelings, eloquently and movingly articulated by his son, daughter, brother and his partner (now deceased), either found insufficient expression or were not heard by those charged with the responsibility for his medical care.”

Following an application being issued in February 2024, Mr Justice Hayden concluded that it would be contrary to JP's best interests to be provided with clinically-assisted nutrition and hydration.

He said: “I was entirely satisfied that such treatment would be futile, burdensome and, on the moving and reflective evidence of his children and late partner, not what he would have wanted.”

“I concluded that case with a clear impression that the RHN had recognised that its prevailing ethos of "rehabilitation and long-term care for patients" had failed to incorporate the obligation actively to consider what their patients, with prolonged and profound disorders of consciousness, would have wanted, and properly to evaluate, in a rigorous way, where their best interests lay.

“The obligation to a patient has, to my mind, absolutely nothing at all to do with whether the hospital is either a Trust or a Charity. The obligation is regularly to assess where the patient's best interests lie, having regard to the broad canvas of needs, recognising that those are not limited to the purely medical. As Dr Hanrahan elegantly put it, "[JP] is more than just his body - a tapestry of tissue or a tandem of organs".”

In that judgment, handed down on 24 January 2025, Mr Justice Hayden indicated that he wanted to concentrate on JP's best interests, and return to his analysis of the delay in the case in a separate judgment.

Counsel acting on behalf of JP, via the Official Solicitor, submitted that at the very latest, if there was an identifiable disagreement amongst the family, proceedings should have been commenced no later than 2018. By that time, there was no prospect that JP's level of awareness could improve.

The judge observed: “It was clear from Dr Hanrahan's evidence that he was convinced from the beginning, and particularly after his conversation with JP's partner, that JP would not have wished to languish as he now has done. There was strong and convincing evidence as to what JP would have wanted from the outset. I have struggled to understand why there was not a timely application to the Court. I have not discovered any satisfactory explanation.

“It is important to say that when there is disagreement within a family as to where P's best interests lie, that is a signal to bring the matter to Court. It most certainly is not a reason to spend months or, as here, years in hand-wringing procrastination.”

The present BMA Guidance, published in 2018 (Clinically-assisted nutrition and hydration (CANH) and adults who lack the capacity to consent: Guidance for decision-making in England and Wales) states at page 23:

"Discussions about best interests should begin at an early stage and, in some cases, may continue over a significant period; this process is likely to involve both informal discussions and sharing of information, and formally recorded meetings. The aim is for the clinical team and those close to the patient to share clinical information and information about the patient, so that the decision-maker has sufficient knowledge about the patient to make a judgment about whether CANH would be in the patient's best interests.”

In analysing the delay that occurred, the Integrated Care Board (ICB) acknowledged that JP's case should have been identified and referred to the Court of Protection sooner.

The ICB provided the following response to the court:

“The ICB recognises that as a commissioner of care, it must give active consideration to whether the 'care package includes an effective system being in place for best interest decisions to be made in these difficult cases so that drift and delay is avoided,' as stated in XR. […] The ICB has reflected on the lessons in [JP]'s sad case, and recognises the need to be proactive in exploring if there are other patients within the South East London population living in similar circumstances. The ICB will, as a priority, work with system partners across to identify and review patients on a case-by-case basis to determine whether care of this nature is agreed to be in the patient's best interests, or agreed not to be in the patient's best interests, or whether there is a need for the Court of Protection to determine any relevant dispute. The ICB is conscious that this would be needed both for patients in a hospital setting and for those patients who may be residing in nursing homes or in the community.

“Since its formation in July 2022, the ICB has worked on developing the governance, escalation and oversight mechanisms for complex and high-risk patients that the ICB funds care for. This includes any patient where there is an element of safeguarding concern or mental capacity that should be considered. There is currently a suite of refreshed policies and procedures (most likely the Clinical Quality Assurance and Safety framework and protocols) going through the ICB internal governance processes to ensure greater alignment and standardisation across the ICB.”

The judge noted: “I have re-read these passages several times. I should very much have preferred plain language, an unambiguous recognition of the extent of the delay, and acknowledgment of the avoidable pain caused to the family by it. I am prepared, however, to take the assurance that "there is currently a suite of refreshed policies and procedures (most likely the Clinical Quality Assurance and Safety framework and protocols) going through the ICB internal governance processes to ensure greater alignment and standardisation across the ICB" as an expression of a real determination to ensure that the ICB will not in future be a "passive bystander", to use Theis J's apposite phrase.”

Concluding the case, he said: “Perhaps the loudest signal emerging from this troubling raft of cases is a failure to understand the crucial significance of issuing proceedings promptly.

“[…] Finally, the circumstances here have made it necessary for me to be critical of failures in the decision-making processes and the lack of appreciation of the collaborative nature of the obligations involved. I should like to make it clear however, that I recognise in this case, as in so many others, that the individuals involved are each highly motivated to do their professional best in what are immensely challenging circumstances.”

Lottie Winson