NHS North East London ICB v FHR: Court of Protection rules against continued life-sustaining treatment

The Court of Protection has ruled that continued clinically assisted nutrition and hydration is no longer in the best interests of a 28 year old man left with a severe brain injury following a suicide attempt in January 2020, bringing to a close a protracted and highly contested set of proceedings.

The man, anonymised throughout as FHR under a transparency order that remains in force to protect his and his family's identities, suffered a catastrophic hypoxic brain injury and has since existed in a prolonged disorder of consciousness. Mr Justice McKendrick heard extensive evidence over several days, including from nine witnesses, on whether FHR should be classified as being in a persistent vegetative state or a minimally conscious state, and on whether any realistic prospect of recovery remained.

The judgement noted that the proceedings, the third set brought before the Court of Protection concerning FHR since 2020, had become "highly charged and over-litigated", with the Court of Appeal separately observing that the case had suffered "egregious delay". Much of the clinical dispute centred on competing assessment methodologies, including the Wessex Head Injury Matrix, the Coma Recovery Scale-Revised and the Sensory Modality Assessment and Rehabilitation Technique. The judge cautioned against allowing debate over precise diagnostic labels to distract from the core statutory question under section 4 of the Mental Capacity Act 2005, namely whether FHR could ever recover a quality of life that he personally would value, applying the approach set out by the Supreme Court in Aintree University Hospitals NHS Foundation Trust v James.

The single joint expert instructed to advise on FHR's best interests concluded that FHR remained in a permanent vegetative state, experienced pain from his care regime, showed no reliable evidence of purposeful communication, and had no realistic prospect of meaningful improvement. That evidence was broadly supported by a further clinical witness instructed by the applicant Integrated Care Board. FHR's mother and father, supported by his sister, resisted the application, relying on evidence of smiles, tears and apparent responses to family members as indicating awareness at a minimally conscious level, and on a religious ruling obtained by the family reflecting Islamic teaching against withdrawing nutrition and hydration from a living person. A further clinical witness called on the family's behalf considered some responses might indicate a low level of awareness and recommended further testing following optimisation of FHR's medication.

Preferring the evidence of the single joint expert, the judge found that FHR most likely remained in a permanent vegetative state, and that even if he were minimally conscious this would not alter the outcome, since any increased awareness would likely mean greater awareness of pain and the futility of his circumstances rather than any capacity for pleasure or comfort. The judgement accepted that FHR's family had observed responses in good faith but concluded that their evidence reflected devotion and hope rather than reliable evidence of a benefit to FHR himself. Having found no reliable evidence of FHR's own wishes about his current circumstances beyond his faith and attachment to family, the judge held that continuing burdensome and futile treatment would not be in his best interests.

The court ordered that FHR receive palliative care, expressing a preference for this to take place at home if a suitable care package can be arranged, with a specified clinical unit identified as an alternative. The transparency order will remain in effect until twenty one days after FHR's death.