Case Comment: XR v NHS North Central London ICB and Others [2024] EWCOP 66 (T3)

Background

This case concerns XR, a 62-year-old patient in a vegetative state (VS) at the Royal Hospital for Neuro-Disability (RHN). Following a cardiac arrest in 2017, XR suffered severe brain damage, leaving him entirely dependent on clinically assisted nutrition and hydration (CANH) for survival. The NHS North Central London Integrated Care Board (ICB) applied to the Court of Protection to determine whether continuing CANH was in XR’s best interests. This case is one of a series of recent judgments grappling with similar facts, highlighting systemic issues around delay and decision-making in prolonged disorders of consciousness (PDOC).

Decision

The Court found that continuing CANH was not in XR’s best interests. Medical evidence showed that XR’s condition was permanent, with no chance of recovery. The burdens of daily interventions, coupled with the absence of any prospect for improvement, outweighed the benefits of treatment. Given the lack of any family or close contacts to ascertain XR’s wishes, the court was unable to consider his values and beliefs, as stipulated under the Mental Capacity Act 2005.

Despite recognising the strong presumption in favour of preserving life, Theis, J. held that the evidence overwhelmingly supported withdrawing CANH and providing palliative care. The judgment also highlighted the need for well-organised and timely decision-making processes to prevent the kind of delays seen in this case.

Comment

This case underscores concerns about delays in best-interest decisions for PDOC patients. The judgment referred to prior cases, including NHS North West London Integrated Care Board v AB & Others [2024] EWCOP 62, to critique the systemic failures at RHN that caused these delays. The judgment in the present case echoed the blunt warnings in previous judgments: delays are unacceptable. Institutions must ensure timely decisions and avoid drift, as these failures profoundly undermine patients’ dignity and rights. XR’s case remained unresolved for years, which indicates a clear need for vigilance and proactive management by both care providers and commissioning bodies.

Another key issue was the refusal to issue judicial guidance. While all parties initially sought guidance to clarify when cases should be brought to court, the judge ultimately deferred to ongoing efforts by the Royal College of Physicians and other bodies to develop updated guidelines. The lack of immediate clarity leaves open questions for clinicians navigating these complex decisions, particularly in “finely balanced” cases where patients’ wishes cannot be determined.

Read the full judgment here: https://www.bailii.org/ew/cases/EWCOP/2024/66.html