Cambridge University Hospitals NHS Foundation Trust & Anor v RD & Ors [2022] EWCOP 47

RD had been diagnosed with Emotionally Unstable Personality Disorder and had been detained three times under the MHA since 2021. In 2022 two incidents of self-harm required hospitalisation, the second requiring insertion of a tracheostomy tube after she tried to cut her throat. The risk that she would try to remove the tube led her to being sedated but as this was not a long term option she was given the choice to either keep the tracheostomy tube, reduce and then stop sedation and undertake training to manage her tracheostomy in the longer term or have the tracheostomy tube removed following which a palliative care plan would be put into effect. She was also told the Court of Protection hearing would take place on 12th August. 

The OS’s position, set out at [30], was that RD, when capacitous, appeared to wish to live, but she lost capacity when distressed. They accepted there was little prospect of any long term recovery however, given RD's expressed wishes, the Court should not order the clinicians to stop treatment while they were willing to provide it. Lieven J also heard from the parents, placing a great deal of weight on their views, who felt that the time had come to let RD make the choice. After reviewing the cases law on capacity and the end of life, Lieven J concludes that RD did lack capacity when distressed and at [47] sums up the difficulties of decision making in such circumstances:

“This is not a case where it is possible to rely on the authorities that establish that an adult with capacity can refuse treatment to save her life, because when capacitous RD does say she wishes to live. Further, it will be a very rare case where an adult who at times does not have capacity and who has expressed a will to live is allowed to die. The importance of the sanctity of life, and RD's own sometimes expressed wishes seem to militate against such an outcome. However, that is the point which this case has reached.”

Lieven J also weighed the evidence that prolonged sedation would be futile as it would not help improve the underlying issues so she concluded the plan put forward - that the team would not replace the tube if RD removed it - would be in RD’s best interests.

In the event RD died on 16th August before this judgment was published. 

Read the judgment on Bailii.