In University College London Hospitals NHS Foundation Trust v PK & Anor [2025] EWCOP 17 (T3), McKendrick J was asked to decide that continuation of clinically assisted nutrition and hydration (‘CANH’) was not in the best interests of a “much loved family man and devout Muslim.” Unlike many of these cases, the 73 year old man, PK, was not in a prolonged disorder of consciousness. He was, however, in a situation following a stroke, exacerbating already existing co-morbidities, where the Trust was concerned as to whether continuing CANH was in his best interests.
In brief, the Trust’s position was that there were greater burdens than benefits to the ongoing treatment and as a result the NG tube should be removed as it is no longer in PK’s best interests. The Trust relied upon the written and oral evidence of both PK’s consultant, Dr Turner, and the jointly instructed expert, Dr Hanrahan, to submit that the treatment was more burdensome than beneficial. The Trust emphasised that PK was nil by mouth and he was experiencing pain every day.
The family’s position was very different. As McKendrick J summarised the closing submissions on their behalf:
58. […] Mr O’Brien submitted the case was never a finely balanced one and this was particularly the case after the conclusion of the oral evidence. He highlighted Dr Christofi’s assessment of PK’s consciousness [evidence, from a colleague of Dr Turner, which gave a more positive picture of his consciousness]. He was critical of the lack of wishes and feelings and religious views in the Trust’s written evidence on best interests. He emphasised the fundamental human dignity apparent from PK’s interaction with his family. He highlighted the examples from the evidence. He stated part of who PK is as a man continues through his genuine engagement with his family, despite his disability. He submitted the response to Arsenal Football Club [smiling in response to it being mentioned] should not be trivialised. He highlighted PK’s religion. He highlighted PK’s past wishes as evidenced through the family’s evidence and in particular AB’s evidence about the TV programme [about assisted dying he watched with his eldest daughter, who said that “he was confused that anyone would want to prematurely end their life, even if in pain or suffering from disability. He turned to his daughter and said: ‘only God decides when you die.’] He submitted there was not extensive pain and that any pain was in any event well managed. He submitted there was no evidence PK was affected by the environmental factors on the ward. Lastly he submitted any burdens could ‘never’ be outweighed by his wishes and beliefs, given the current facts of PK’s case.
The Official Solicitor:
59. […] largely agreed with Mr O’Brien’s case. The Official Solicitor opposes the grant of the declaration on behalf of PK. Ms Powell emphasised that – unlike some cases – PK had never been lost in these proceedings and he was central to every aspect of the case as a man, a husband, a father, a Muslim and a patient. A coda of her submissions was the right to self-determination and that what we wanted for ourselves in such situations has to be highly relevant to the issues the court has to decide. She emphasised the approach of the first instance court in Briggsbut noted that unlike the facts of that case, the principles of respecting self-determination were not in conflict with the sanctity of life in these proceedings. She submitted that dying in a manner consistent with his Muslim faith was a very significant benefit for PK. She emphasised that the evidence demonstrates PK continues to be a husband, father, grandfather and Muslim. He has awareness and interacts. She emphasises his past wishes that life be extended and that he receive all treatment. She invited me not to set the bar too high in respect of past wishes as to how patients would want to be treated in the future. In particular she submitted it would erode the principle of autonomy if the court could only give weight to a patient who had accurately and in detail envisaged the circumstances of their future care and opined with a level of specificity. She submitted I should reject, therefore, Dr Turner’s evidence that PK had never envisaged being bed bound and fed by a NG tube. She noted the differing medical views on the burdens and that one doctor emphasised pain and another the nil by mouth regime. She suggested that demonstrated neither as quite so burdensome. She identified the magnetic factor as PK’s religious beliefs.
After the clinical and family evidence but before the expert’s evidence, McKendrick J declined an invitation by the Trust to make a judicial visit:
61. This matter had not been hitherto canvassed. It was strongly opposed by Mr O’Brien and Ms Powell. I concluded that a judicial visit would be of limited purpose having regard to the then Vice President of the Court of Protection, Hayden J’s, Practice Note. It could be confusing for PK. I have a detailed account of his situation and a note of a bedside visit made by Mr Michael Sherlock of the office of the Official Solicitor. Whilst there might be benefit to visiting PK to further involve him in the proceedings, this was outweighed by other factors. I declined the invitation.
As capacity was not in issue, the question was as to whether continuing CANH delivered via the NG tube is or is not in PK’s best interests. Interestingly, McKendrick J made clear at paragraph 61 that “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.”
At paragraph 62, McKendrick J set out his conclusion:
After having reflected on, and considered, the oral and written evidence from the clinicians and from the family, 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. I can set out my reasons succinctly:
a. I do not know what his present wishes are in respect of the NG tube.
b. I accept his present feelings are, at the very least, influenced by the enjoyment he receives from being with his family. On balance I infer his feelings would likely dictate that he would want this to continue and for that enjoyment not to be cut short to the 1-3 weeks he would have left if the NG tube were removed.
c. I unhesitatingly agree with the family’s evidence in respect of PK’s past wishes in respect of continuing treatment even in circumstances where pain and disability are present. His daughters’ and his wife’s evidence on this was clear. It was (rightly) not challenged by the applicant. The discussion around the television programme in July 2024 is a recent and neat example of PK’s wish to receive treatment. Furthermore, it sets out his past wish to receive treatment even if in pain or labouring under disability. I entirely accept Ms Powell’s submissions that I need not find a patient expresses a wish exactly mirroring their current circumstances and to do so would undermine autonomy. Such are the varied injuries or disabilities that might befall us and such are the range of treatments that medical advancement might offer us, to require a patient to articulate their precise circumstances would be to require an unnecessary level of prediction which is inconsistent with the autonomy this court seeks to protect.
d. I find PK’s past feelings would include the sentiment that all life is of value and he would have felt anguish and disappointment should his life be shortened by medical intervention. His past feelings were to celebrate life and to enjoy it surrounded by his family.
e. I also find his past and present beliefs are deeply rooted in his devout Muslim faith. This stands out from the evidence. He was and remains a devout Muslim. He continues to listen to surahs. His family’s evidence is that he believed all life is given by God and no steps should be taken to shorten life, other than those of his God. To that extent his family’s evidence is that PK would view it as wrong and contrary to Islam for me to authorise the removal of his NG tube. I reach this conclusion based solely on the evidence of PK’s family. I have read and considered the fatwa exhibited to AB’s witness statement. I have not had to determine how to give effect to this fatwa and as a result I make no findings as to Islamic teaching on end of life care and treatment. I am only concerned with PK’s understanding of Islam and the extent to which his own religious beliefs would comfort him. I agree with Ms Powell’s submission that there is a significant benefit to PK of living and dying in accordance with how he understands his devout Muslim faith. Unquestionably, therefore, PK’s Islamic beliefs would be likely (highly likely) to influence his own decision whether or not to continue with the NG tube if he had capacity.
f. I also find PK’s past and present values are deeply rooted in his family life, as a husband, father and grandfather. This has profoundly shaped almost all of his entire adult life. The importance of fatherhood is emphasised by the fact he fathered six children. I accept the submission that notwithstanding his reduced consciousness, cognitive decline and physical disability, he remains, from his hospital bed, an active husband, father and grandfather. I accept Dr Christofi’s evidence and find that when PK is bright and alert, not tired, he is fully conscious and can interact, communicate (albeit non-verbally) and respond with his family. The value of family life is more than simply having contact with his visiting family members. It is a powerful role he continues to perform as the head of his family. I therefore find that the value of family life is a value that is likely to influence his decision whether or not to maintain the NG tube, if he had capacity. Spending more time with his family is indicative of maintaining CANH via the NG tube.
g. I am required to take into account pursuant to section 4 (7) (b) the views of anyone engaged in caring for PK. I must take into account Dr Turner’s views and the wider views of the Trust. It is also convenient to consider Dr Hanrahan’s views. They are principally concerned with four burdens: (i) pain; (ii) the ‘nil by mouth regime’ and mouth care; (iii) his environment and (iv) the inherent indignity of personal care and being bed bound. The Trust is entirely correct to raise these issues and be concerned by them. I have weighed them carefully. First on pain, I find when immobile PK is comfortable and not in pain. Whilst it is hard to know whether there is underlying pain or discomfort, I accept the medical evidence it is well managed and he receives appropriate pain relief. Should that pain advance, the pain management regime can be altered. PK can grimace when in pain but is not observed to routinely grimace. The opposite is the case: and he is observed to be peaceful and comfortable. I accept he is in pain (particularly given his shoulder injury) if moved, but I find this is short lived and he is carefully and skilfully turned by experienced staff. He need not leave his bed when he has a CXR and this is not likely to be painful. Overall, I find there is limited pain and the highly professional staff take all steps through medication and otherwise to minimise any limited incidental pain. Secondly, the evidence on ‘nil by mouth’ was fairly divergent between Dr Turner and Dr Hanrahan. I do not think PK feels hunger. His dry mouth is ameliorated by the water given by pipette. He enjoys that. His mouthcare is well looked after. Thirdly, I accept Mr O’Brien’s submission that there is no evidence that PK is disturbed or negatively impacted by his ward environment or related sensory issues. Dr Hanrahan was correct to raise them but this was very much at the level of generality and not specific or rooted in the evidence to PK. Lastly the provision of intimate care and being bed bound are burdensome, but I also accept the family’s evidence that when PK had carers four times a day at home to help with toileting, he quietly accepted this. This is in line with his beliefs and values.
h. I also factor in the fact PK is aware of his surroundings and his environment. I accept he smiles and responds when Arsenal Football Club is mentioned. I accept he can follow one stage commands. I accept he smiled when Dr Hanrahan made an error in Arabic. Therefore, I do not accept some of Dr Turner’s earlier written evidence on the state of PK’s consciousness and prefer Dr Christofi’s and the family’s evidence that he is conscious at times.
i. I also place weight in the best interests analysis, on the views of his family who also care for him and/or are interested in his welfare. They all consider the NG tube should remain in situ.
j. I also place weight on the fact PK’s own litigation friend, as a person interested in his welfare, opposes the Trust’s declarations.
63. Set out above are the essential and necessary section 4 MCA factors. I also place considerable weight, as I must, on the inherent sanctity of life. The removal of the NG tube is likely to reduce PK’s life expectancy, although I accept this is not certain and he is sufficiently frail that he might pass at any time.
Importantly, McKendrick J made clear that:
64. I do not accept that which was hinted at in the evidence (but (rightly) not developed by Mr Fullwood) namely, that CANH was futile because PK’s functioning will not improve. The NG tube delivering CANH to PK is not futile in circumstances where it sustains his life. I accept the clinical evidence there will, in all likelihood, be no improvement from the October 2024 stroke, but it does not follow from that, that his treatment is futile.
He further noted that:
65. I have not overlooked the fact that my conclusions depart from the evidence of the two experienced clinical witnesses. However, as is clear from the case law, whilst I must consider the expert and clinical evidence, the best interests decision is mine alone. I depart from the expert because I place greater weight on PK’s past and present wishes, feeling, beliefs and values than the expert does. I do not find the treatment futile. Its burdens do not (yet) outweigh the benefits I have identified above.
66. I have firmly in mind, many patients would rather quickly and quietly slip away from a life of artificial hydration and nutrition when bed bound, particularly in circumstances when they are both non verbal and subject to a nil by mouth regime. However, Aintree makes clear that the court’s assessment of best interests is rooted in a best interests analysis from the perspective of the particular patient in their particular circumstances. I therefore conclude that it is in the best interests of this devout Muslim, family man, who is often conscious and in limited pain, and who enjoys his family, to continue to receive CANH through his NG tube.
Comment
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.
