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The NHS Foundation Trust v K & Ors

14 December 2023
[2023] EWCOP 57
Court of Protection
A young person with a terminal illness needed a decision about their medical care. Doctors disagreed on the best treatment. The family wanted to keep the person alive longer, but the judge decided that a less invasive approach that provided comfort was better, even though it meant a shorter life. The judge carefully considered all viewpoints to choose the most compassionate and appropriate option.

Key Facts

  • K, a young person with a rare inherited condition progressively destroying her nerve cells, is in intensive care with respiratory problems.
  • K lacks capacity to make decisions about her care and treatment.
  • Three treatment options were considered: continued ICU treatment (weeks/months life expectancy), extubation (days life expectancy), and tracheostomy (weeks/months life expectancy).
  • The family, represented by K's sister B, initially opposed a tracheostomy but ultimately wished for K to live.
  • Medical experts gave conflicting opinions on the best course of action.
  • The Official Solicitor initially sought evidence but ultimately recommended tracheostomy.

Legal Principles

Best interests determination under the Mental Capacity Act 2005 (MCA 2005).

Mental Capacity Act 2005, section 4

Factors to consider in best interests decisions, including past and present wishes, beliefs and values, and views of carers.

Mental Capacity Act 2005, section 4

Presumption in favor of life, but not absolute; consideration of burdens and benefits of treatment.

Aintree University Hospital NHS Foundation Trust v James [2013] UKSC 67

Right to life carries significant weight in balancing exercise.

W v M [2011] EWHC 2443

Burden of proof on those asserting discontinuance of life-sustaining treatment is in best interests.

R(Burke) v GMC (OS Intervening) [2005] QB 424

Outcomes

The court declared that it is not in K's best interests to have a tracheostomy.

Despite the family's wish for K to live and the inherent value of life, the medical evidence (from Drs. B and Bell) indicated that K would not tolerate the interventions required with a tracheostomy without sedation or restraint. The benefits of a longer life were outweighed by the burdens.

The court implicitly approved the option of extubation and palliative care.

This option, while resulting in a shorter life expectancy, was deemed to be in K's best interests due to the significant burdens associated with tracheostomy, including the need for sedation and restraint.

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