NHS South West London ICB v RFA & Ors [2026] EWCOP 59 (T3) was a decision about whether continuing the provision of CANH was in the best interests of a profoundly disabled 60 year old woman. It is case which is of particular note for two reasons. The first is that it is a reminder that not all applications in relation to CANH result in a decision endorsing withdrawal, McKendrick J’s analysis of RFA’s best interests being characteristically sensitive both to the law and to the evidence before him:
44. I accept the evidence of the clinicians that RFA is in an MCS Plus state. She at times can express emotional responses to her family. She plainly responds to adults and tracks visiting family with her eyes. Dr Nair noted when he visited RFA with her husband and daughter, as they entered the common room where RFA was sat in her wheelchair “[RFA] immediately identified her daughter and husband and tracked them from across the room.” There is some evidence she has responded to instructions and demonstrates communicable intent, even if not always consistently. I also accept the evidence of Dr Nair and Professor Wade that careful reduction of some medication may result in greater awareness. However, I also accept the evidence that five years post index event, recovery is less likely than likely. I accept RFA appears calm and appears to enjoy being taken outdoors, and she responds to music. Dr Nair specifically noted in his report that he saw her respond to the music of Robbie Williams, which he was told was one of her favourite artists. She is aware of the presence of her husband and daughter. Importantly I also accept she is not in pain. She is very well cared for and those caring for her have administered very little pain relief over the last twelve months in circumstances where they would note behaviour associated with pain and respond to ameliorate this.
45. However, I also note that RFA is hugely dependent on others for all her needs. She is unable to talk. She requires a tracheostomy, although it is not cuffed and she has some ability to swallow and therefore whilst she requires some suctioning this is not at a more intense level. Dr Nair reported the nurse on duty when he visited RFA reported she did not require frequent suctioning. She is doubly incontinent and cannot communicate her needs in this area. She has limited physical movement but can move and use her left arm and hand. She needs to be handled for nearly all movements. She is highly dependent and very vulnerable.
46. I accept Dr Nair’s helpful summary of the benefits and burdens of CANH. He reports on the burdens:
-
- Total irreversible loss of autonomy as highlighted by Prof Wade.
- Episodes of skin breakdown and pressure sores.
- Progressive development of contractures in neck and limbs despite multiple medications.
- Difficulties with a PEG that is nearing its end of life.
- She is reliant on a tracheostomy that is permanent.
- There is no consistent trajectory towards improving awareness. This may be disputed by [CZ].
- She does not have a means of communicating yes or no.
47. And Dr Nair summarises the benefits as:
-
- [RFA] is able to discern and recognise close relatives. She has shown a clear preference to the photo of her daughter.
- Does not appear to be in pain.
- Has some positive life experiences-enjoys music, has irrefutable ability to track people, enjoys the fresh air of outdoors.
- Episodes of appropriate smiling, laughing and crying.
- Concerns that [RFA] may be on some medications that she may not really need, the removal of which may lead to changes in presentation
- PDOC category is MCS Plus and not Vegetative State or MCS Minus, though the category of PDOC in itself is not a reason to continue CANH.
- Irrefutable evidence that she would do anything for her daughter, who she conceived through IVF.
48. I accept the clear evidence that RFA’s past feelings, beliefs and values were very much focused on her family and that she delighted in the birth of her daughter after fertility issues. RFA has been blessed, and continues to be blessed at the age of sixty, to enjoy the company of her mother, her brother, her sister, her daughter and her husband and many other family members and friends. It is clear she was an active, artistic thoughtful person. I also accept furthering the welfare of her daughter was a central desire and value in her life.
49. What is more difficult to resolve is the issue of RFA’s past wishes on the subject of being kept alive in her current condition. As other judges (see Lieven J (as she then was) in NHS West and North London ICB v MP [2026] EWCOP 36) and I (NHS North East ICB v FHR [2026] EWCOP 43 (T3) at paragraph 146) have commented it is difficult to conclude on the balance of probabilities, on the basis of the evidence of family and friends, that what was historically communicated about wishing to continue to live in circumstances where P could not have reasonably contemplated their “massively diminished state.” Furthermore, the weight to be placed on such a view, even if securely identified in the evidence, may be limited. There is a huge difference between a family remembering their loved one with their full capacity being a “fighter” with being content to endure the reality of an inability to communicate yes or no whilst every need is met by paid professionals and carers.
50. I have concluded on the evidence that, at this stage, given RFA’s calm and pain free demeanour and in circumstances where she plainly responds to her family and stimuli like music and trips outdoors, it is possible to answer the essential question: “whether P could ever recover a quality of life that P personally would value.” By a fine margin, RFA still holds on to the family and art that she cherished before her disastrous reaction to the inoculation. I accept the evidence of Dr Nair. CANH is not currently futile or unduly burdensome. I agree with her husband and daughter and the powerful submission of the Official Solicitor as her litigation friend. I also reach this conclusion in circumstances where no health body has argued for the withdrawal of CANH.
51. It is also the case in a finely balanced case of this nature that ‘the sanctity of life’ emerges powerfully to fill any residual evidential doubts and uncertainties. Coming forth from this disarmingly simple phrase is the inviolable gift of life that is precious and fulfils a sacred purpose. Our awareness of life and knowledge of its inevitable end profoundly shapes our humanity. Respecting life and recognising this is not absolute is a part of what makes us human. RFA’s catastrophic brain injury was caused by her body’s reaction to the COVID-19 vaccination, a measure she took, with capacity, to protect and safeguard her life.
52. I have not fully resolved the dispute between CZ and BL [RFA’s husband and sister respectively, as to RFA’s wishes]. It is very difficult to do so. It is not currently necessary to do so. I am satisfied that I could not make, on the evidence available to me, a finding that RFA’s past wish would have been to actively end her life because she would have found her current condition undignified. That is not supported by the majority of the written evidence.
53. Having regard to the all the section 4 Mental Capacity Act 2005 factors I reach the conclusion that it is currently in RFA’s best interests to receive CANH.
The second reason that the judgment is of note is for the detailed consideration that McKendrick J gave to a number of ‘ancillary issues,’ especially as they challenged what might often be seen as received wisdom in the medical treatment context, a point emphasised by the fact that McKendrick J had been presented with an order agreed between experienced Counsel, an order with which he took issue in a number of different ways.
Firstly, McKendrick J declined to consent on RFA’s behalf (under s.16 MCA 2005) to a treatment escalation plan, a PEG plan, or a DNACPR form. As he explained:
57. I can understand why it was thought helpful for the court to make best interests orders in respect of these issues, however they were not matters identified for determination in the original application and nor were they matters the subject of initial case management directions. It seemed to me I was being asked to determine the details of clinical decisions which are likely to vary depending on the circumstances. I remind myself of what was said by Peter Jackson LJ in Re A (Covert Medication) [2024] EWCA Civ 572 at paragraph 90: “….the Court of Protection exists to make decisions about whether a particular decision or action is in the best interests of the individual. It is not a supervisory court…”
58. Furthermore, the DNACPR is a clinical matter for doctors in respect of which patients and in some circumstances their families should be consulted. It is not a best interests matter for the court and I do not understand the decision in Townsend v Epson and St Helier University Hospital NHS Trust [2026] EWCA Civ 195 to change that, notwithstanding the fact that placing of a DNACPR in a patient’s medical records is a clinical decision. A DNACPR can be made by a doctor without the agreement of a capacitous patient. Lady Hale held at paragraph 18 of Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67; [2014] 1 AC 591 that: “On an application under this Act, therefore, the court has no greater powers than the patient would have if he were of full capacity.” The making of a DNACPR does not require the patient’s consent, although they must be told and a patient who is in disagreement can seek a review and a second opinion. The fact that a DNACPR has been made for a patient who lacks capacity does not mean that such a clinical decision becomes a best interests matter for the Court of Protection. It is a clinical decision of a very different complexion from the CANH decision this court was required to make for RFA.
59. For these reasons I declined to make any section 16 MCA orders in respect of treatment escalation, PEG line replacement or DNACPR. The role of the Court of Protection is not to supervise the healthcare of a patient who happens to be the subject of an application for specific relief. I have determined the particular decision which led to these proceedings being issued. It is not my role to go further.
McKendrick J also declined to consent on RFA’s behalf to an “Agreed Review Process”:
60. Furthermore, I do not agree with the submissions of Ms Scott and Mr Brownhill that the content of the “Agreed Review Process” and issues in respect of when any further review of whether or not CANH is in RFA’s best interests, is a best interests matter for this court, and can therefore be the subject of a section 16 MCA order determining RFA’s best interests and thereby providing this court’s consent to the review taking place.
61. The Royal College of Physicians PDOC National Clinical Guidelines at page 61 notes:
“Formal clinical re-evaluation for the purposes of treatment planning and best interests decision-making, should be undertaken at 6 and 12 months post-injury and annually thereafter until the patient either dies or emerges from PDOC.”
62. This is of course guidance from clinicians for clinicians. It is not a rule. When and how the issue of whether it remains in RFA’s best interests to receive CANH is a matter for her General Practitioner. He is the medical professional who writes the prescription for her. If he considers CANH is no longer in RFA’s best interests then he must make that determination. If a person with interest disagreed, then the matter may return to court. If the GP makes the contrary assessment on a review, and a person with interest disagrees then they may apply to restore the matter to court. The Court will need to grant permission in all likelihood pursuant to section 50 MCA, which states:
“No permission is required for an application to the court for the exercise of any of its powers under this Act—
(a)by a person who lacks, or is alleged to lack, capacity,
(b)if such a person has not reached 18, by anyone with parental responsibility for him.
(c)by the donor or a donee of a lasting power of attorney to which the application relates,
(d)by a deputy appointed by the court for a person to whom the application relates, or
(e)by a person named in an existing order of the court, if the application relates to the order.”
63. Mr Brownhill’s client [RFA’s husband] is fearful that BL will disagree in twelve months time. Should CANH remain in RFA’s best interests as determined by her GP and should BL disagree and wish for the Court of Protection to make a determination on this issue, she will be required to seek permission pursuant to section 50 MCA. I do not consider she can rely on section 50(1)(e) because she was a party and has been named in previous orders in these proceedings. Any such application would not relate in a meaningful sense to earlier orders made in these proceedings in which BL is named. I interpret section 50(1)(e) to essentially be a liberty to apply provision. Any fresh determination of RFA’s best interests would not relate to orders made in these proceedings. The application would relate to RFA’s best interests at the time of the application. If an application is made to court it can be assessed to consider whether there has been a relevant change of circumstances as set out by Poole J in AF [2020] EWCOP 55 at paragraph 22 (c) (a case itself about inserting a fresh PEG some time after another judge had determined CANH was in the patient’s best interests):
“Where there has been no material change of circumstances subsequent to a previous judgment, no new evidence that calls for a re-opening of the earlier findings, and the earlier evaluation of best interests clearly covers the decision that the new court is being asked to consider, appropriate case management might involve the court summarily determining the new application.”
64. This may lead to the court refusing permission pursuant to section 50 MCA. It may lead to the court granting permission and adopting a summary process to determine any relevant change of circumstances. Unreasonable actions may incur costs consequences.
65. Mr Brownhill sought to argue that RFA would not want her daughter’s university education disrupted. He submitted this court should make a best interests order pursuant to section 16 MCA that the next review of whether CANH is or is not in RFA’s best interests should not take place earlier than the summer of 2029, when RFA’s daughter finishes her university studies. It was said this was a belief or value RFA held in the past.
66. First, I do not accept timing of any such review is itself a best interests matter. It is an administrative matter for RF’s GP having regard to her best interests. RFA, if she had capacity, could not dictate when medical reviews would take place. The timing, for example, of an NHS continuing healthcare assessment is not a best interests matter. Nor is it a decision appropriate to be dictated by reference to the section 4 MCA factors. P does not make the decision about the review and its timing. It cannot be said to be a decision “on P’s behalf in relation to the matter” (to borrow the language of section 16 (2)) notwithstanding the fact it is a decision about P’s best interests. To further illustrate the point, a deputy could not be appointed to make the decision about the timing of the CANH review or P’s behalf – see s. 16(2)(b), which is a useful manner of checking whether the decision is one that can be the subject of a section 16 order.
67. Furthermore, and in any event, I could not accede to Mr Brownhill’s submissions and order that the next review would be in 2029 to accommodate RFA’s daughter’s university studies in RFA’s best interests. Plainly section 4(1)(c) can accommodate altruistic gesture or beliefs by P, see Re G (TJ) [2010] EWHC 3002 (COP) at paragraph 56. I do not accept RFA held a past belief so specific when she had capacity prior to 2021. Nor am I able to infer from her past deeply held family values and evident love and joy for her daughter, that what is proposed is a concrete past wish or value or belief. Even if this could be properly evidenced, it would be difficult to subvert P’s autonomy and dignity to require CANH to be continued to permit her daughter uninterrupted studies. Past wishes and feelings are relevant but the court cannot lose sight of its role to focus on P and their wider best interests.
68. I also disagree that I can make a case management decision within these proceedings in respect of when a future CANH review takes place for RFA. A case management decision is directed at the parties and must relate to the fair determination of the issues in these proceedings. The GP is not a party and nor should case management decision determine future administrative decisions out with these proceedings.
Lastly, McKendrick J noted with some asperity that:
69. [….] the Applicant and the RHN adopted neutral positions on the issue of whether CANH was in RFA’s best interests. As I have said, the GP prescribes CANH. He must form a view. I have not heard full argument on the subject but it strikes me that this court will be more assisted by receiving submissions from a medical person/body who requires to face and take the (often difficult) decision (see for example the decision of Mostyn J in A CCG v AF And Others [2020] EWCOP 16 where the GP took a clear position on the role of CANH). That would focus the evidence and arguments. It also strikes me that having two public bodies as parties when they are both neutral is not a good use of public money.
Comment
McKendrick J’s decisions in relation to the ancillary issues that arose on the case are helpful in four regards:
- They make clear in a way which has perhaps not always been made clear or understood (including, for instance, by Baroness Hallet in the COVID-19 inquiry report on care settings) that formulating DNACPR recommendations (and, in similar vein, ReSPECT forms) is not best interests decision-making, either before the court or, by logical extension, outside court. His determination in this regard, made with specific regard to the Court of Appeal’s decision in Epsom is particularly helpful, as we continue to navigate the post-Epsom terrain;
- By posing the ‘what could a deputy do’ test as a way of stress-testing whether the decision is actually one falling within s.16 MCA 2005 (and, by extension, whether it is, in fact, a best interests decision at all);
- Reminding us that the Court of Protection exists to determine specific issues, rather than to act as a general clinical oversight body;
- By emphasising that what the court needs is the view of the clinician(s) involved in the actual decision in question. I would add to this that the court also needs the best evidence of that clinician as to their clinical judgement of the situation, to place the court as close as possible to being in the shoes of a capacitous patient to be able to consider the implications of that judgement: see the two cases considered in our November 2026 report showing this in action.
