This interesting judgment (NHS South East London Integrated Care Board v JP & Others [2025] EWCOP 8 (T3)) concerned JP, who had been in a prolonged disorder of consciousness for nine years at the time to the application by the NHS Trust. Following a ventricular fibrillation cardiac arrest, JP suffered a severe hypoxic brain injury.

The court noted that it was clear soon after JP’s admission that there was “strong and clear” evidence that he would have hated to be in the circumstances in which he found himself.

Both a Consultant in Rehabilitation Medicine and a Consultant Neuro-rehabilitation Specialist agreed that the clinically assisted nutrition and hydration being provided to JP was “futile”. As such, the Court of Protection determined it would be against JP’s best interests to be provided with nutrition and hydration.

A key part of Mr Justice Hayden’s judgment concerned the way that JP’s family had been consulted for their views. He was keen to emphasize that their views are sought “solely to illuminate the likely wishes and feelings” of JP. In this particular case, there was an array of views on difficult ethical issues held by JP’s family and Mr Justice Hayden placed emphasis on the evidence of those family members who concentrated on the views and beliefs of JP, rather than themselves.

Mr Justice Hayden also went on to say that in a situation where there is disagreement within a family as to where a protected party’s best interests lie, that is a sign that the matter should be brought to court.

This case is a useful reminder of the importance of identifying and taking into account the wishes and feelings of a protected party when making a decision as to what is in their best interests. 

Solicitors ought to be mindful where a claimant lacks capacity that their personal wishes and feelings are appropriately identified and given sufficient consideration when decisions are being made as to their claim, rehabilitation and accommodation. That may be by way of information from the protected party themselves, or their friends and family; provided the focus remains on illuminating the wishes and feelings of the protected party only.

Joanna Lamb is an Associate in the catastrophic and large loss injury team based in Manchester and a member of the Capacity & Court of Protection subject matter group.