NHS Kent & Medway Integrated Care Board v OQD & Anor

This case concerns OQD, a 50-year-old man who is in a prolonged disorder of consciousness (PDOC). He suffered severe hypoxic brain damage following an assault in late 2013. He has been a resident under the care of the second respondent (RHN) since 23 April 2014. He has therefore been in essentially the same state of consciousness receiving Clinically Assisted Nutrition and Hydration (CANH) for 12 years. The application is to withdraw that CANH and to therefore allow him to die.

The applicant is the Integrated Care Board (ICB) responsible for commissioning OQD’s care, and is represented by Eloise Power of counsel. OQD is represented by the Official Solicitor, through Sophia Roper KC and the RHN is represented by Jake Rylatt.

The applicant seeks a determination under the Mental Capacity Act 2005 (MCA 2005) that it is lawful and in OQD‘s best interests for those treating him not to continue CANH and to provide palliative care only. The RHN supports the application as does the Official Solicitor.

The family members (OQD’s father FD, his sisters MD and RD) oppose the withdrawal of CANH. They put in a joint statement but once the Official Solicitor had indicated that she supported the application, they decided not to attend the hearing. Although I indicated that I would have liked to have heard from them during the hearing, I both understand and respect why they felt that the process would be too distressing.

The Court heard oral evidence from Dr A, consultant at RHN and Professor Wade, who produced a second opinion report.

There are significant concerns as to why it has taken so long for this application to be made, particularly in the light of earlier judgments concerning the RH. However, this judgment is solely about OQD’s best interests now, and I will produce a separate judgment concerning the delays. This is both because it is important for the family that I produce a judgment speedily and in particular before Easter, when RD is coming to the UK; and that from the family’s viewpoint it is important that this judgment focuses solely on OQD’s best interests as they arise now, rather than more generic and procedural issues.

OQD was born in the mid 1970’sv. He excelled at sport and drama as a boy. As a young man, he had a successful job as a recruitment consultant. He is described by his friend and former partner WE as “full of energy and life” with a love of music, pubs, clubs and cooking. His family describe him as living life to the full.

His father explains that from 2006 onwards OQD experienced some deterioration in his mental health and had periods as an in-patient.

In late 2013 OQD was the victim of an assault, which caused “extensive hypoxic brain damage affecting both cerebral hemispheres, the mid brain and possibly some of the brainstem.”

Following the assault, OQD was admitted to Medway Hospital, where he required ventilation on the intensive care unit. It was initially thought that he would not survive. The ventilator was turned off. However, he started breathing independently. He was discharged from the intensive care unit in late 2013.

On 23 April 2014, OQD was admitted to the RHN for acute specialist rehabilitation. During his first year, he received treatment for a dislocated jaw at St George’s Hospital, Tooting (May 2014), a trial of intrathecal baclofen at the National Hospital for Neurology and Neurosurgery at Queen’s Square (July 2014), and a hemicolectomy for caecal perforation resulting in an ileo-colostomy (December 2014). He was assessed as being in a vegetative state.

In April 2015, OQD was transferred to the Andrew Reed Ward, part of the specialist nursing home at the RHN for long-term care.

In July 2017, a review using the Wessex Head Injury Matrix revealed no significant change in OQD’s level of awareness.

At an annual review in July and August 2018, there were no changes in his cognition or communication. It was noted that he “does however at times continue to display increased levels of agitation which is observed by increased restlessness and restless in his face which is presumed to be increased discomfort or distress”.

At a review in January 2020, the Wessex Head Injury Matrix revealed a total of five behaviours.

At reviews on 20 April 2021 and 19 May 2022 the total number of behaviours noted on the Wessex Head Injury Matrix never exceeded three of the 61 behaviours in the Matrix, so this score is at the lowest end.

On 12 July 2022, discussions with OQD’s family members took place about the continuation of CANH. OQD’s mother was terminally ill. A decision was made to continue CANH for a further six months “as the family felt strongly that [OQD]would not have wanted this issue raised during his mother's final months.”

On 27 September 2022 a further discussion took place with OQD’s sister, who advised that her mother had died in the previous week and explained: “It still remains the case that his father is likely to be very distressed by this conversation being raised at this time.” The plan was to contact the family again in four to six months regarding revisiting the best interests decision.

On 2 February 2023 a further discussion took place with OQD‘s sister, who advised that she had journals from OQD “In which he says that if something happened to him, he would want to be kept alive until there and are new medical treatments that can help, such as brain stem treatments”. In a further discussion on 14 March 2023, the plan was to speak to OQD‘s father on his next visit to London at the end of April 2023. To date, the journal entries have not been made available.

On 10 October 2023 a meeting took place to discuss CANH and to gather evidence.Further attempts were made to contact other friends and family in November 2023.

On 2 May 2024 a further discussion took place with OQD‘s sister. At that point in time, staff had observed “Increasing frailty with 2 recent recurrent admissions with chest infections and with sacral sore.”

In the summer of 2024, decision-making was paused as it was thought that OQD‘s death was imminent.

On 3 December 2024 an MDT discussion took place in relation to CANH. Various views were expressed, and the plan was to reflect and meet again with OQD’s General Practitioner present. It appears that these meetings took place on 9 January 2025 and 23 January 2025 but that they were not documented.

On 25 March 2025 a meeting with OQD‘s father and sister took place. OQD‘s sister expressed that “We keep saying the same thing – that [OQD]would want to carry on and have a natural death.”

On 26 March 2025 RHN wrote to the ICB to advise them that a “potential dispute” had arisen in relation to best interests and to advise that court proceedings were needed.

On 2 June 2025 RHN wrote to the ICB requesting a formal second opinion.The letter stated (erroneously) that “the clinical team and family have now reached a unanimous decision that it is no longer in their best interests to continue a lifesaving treatment they are on, namely CANH...”

On 11 August 2025 RHN sent an email explaining that “The letter to the ICB dated 02/06/2025 was sent in error as there is still a disagreement and we only need a second opinion from our end when there has been an agreement to withdraw CANH….”.

On 12 September and 1 October 2025, the Coma Recovery Scale – Revised was undertaken. OQD scored 4/24 and 3/23: “On both occasions, he showed auditory startle, no reaction on the visual function scale, no reaction on the motor function scale, or reflexive movement and no communication. On the 1st occasion, his eyes opened without stimulation, and on the second, with stimulation.”

On 1 October 2025 Professor Wade visited OQD for the purpose of preparing an independent second opinion report. I will refer to Professor Wade’s report below. The report, which was dated 14 October 2025, concluded as follows:

“I decided that continuing feeding and hydration through his gastrostomy tube is no longer in his best interests because the episodes of fear and anxiety are frequent and unpleasant, and are not balanced by any pleasurable feelings or expectation of later improvement. Other reasons are given in the report.”

Professor Wade recommended that a detailed record of OQD‘s behaviours over at least four weeks should be provided to “provide better evidence on the nature and frequency of behaviours indicative of pain, fear, anxiety or distress”.

On 7 January 2026, RHN staff provided a structured summary of observations containing a retrospective summary of entries between 1 September 2025 – 21 December 2025 and a contemporaneous summary of observations between 22 December 2025 – 4 January 2026.

On 22 January 2026 the present proceedings were issued. An early directions order was made on 26 January 2026. A directions hearing took place on 2 February 2026.

Following the directions hearing, further witness evidence has been obtained from Dr A, Consultant in Neurorehabilitation, from the family members, and from Mr Sherlock on behalf of the Official Solicitor, and additional observation records relating to the period between 6 February 2026 – 2 March 2026 were obtained and summarised.

The law in relation to the issues in this case is not contentious and has been agreed by the parties. the statutory tests are set out in s.1- 4 of the Mental Capacity Act 2005. The first issue is OQD’s capacity, under s.2. However, given that is in a PDOC and has been for many years, the question of whether OQD has capacity is straightforward.

The best interests test is set out in section 4 MCA:

“Best interests

(1)

In determining for the purposes of this Act what is in a person's best interests, the person making the determination must not make it merely on the basis of—

(a)

the person's age or appearance, or

(b)

a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests.

(2)

The person making the determination must consider all the relevant circumstances and, in particular, take the following steps.

(3)

He must consider—

(a)

whether it is likely that the person will at some time have capacity in relation to the matter in question, and

(b)

if it appears likely that he will, when that is likely to be.

(4)

He must, so far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him.

(5)

Where the determination relates to life-sustaining treatment he must not, in considering whether the treatment is in the best interests of the person concerned, be motivated by a desire to bring about his death.

(6)

He must consider, so far as is reasonably ascertainable—

(a)

the person's past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity),

(b)

the beliefs and values that would be likely to influence his decision if he had capacity, and

(c)

the other factors that he would be likely to consider if he were able to do so.

(7)

He must take into account, if it is practicable and appropriate to consult them, the views of—

(a)

anyone named by the person as someone to be consulted on the matter in question or on matters of that kind,

(b)

anyone engaged in caring for the person or interested in his welfare,

(c)

any donee of a lasting power of attorney granted by the person, and

(d)

any deputy appointed for the person by the court, as to what would be in the person's best interests and, in particular, as to the matters mentioned in subsection (6).”

A helpful list of issues requiring determination in an application of this kind were set out by Mr Justice Cobb in PL (by her litigation friend, SL) v Sutton CCG & Anor [2017] EWCOP 22 at [9]; namely:

Physical harm can be experienced from medical interventions even where a person does not experience pain. In Parfitt v Guy’s and St Thomas’ Children’s NHS Foundation Trust and another [2021] EWCA Civ 362, Baker LJ held: “The judge was entitled to conclude Pippa could experience physical harm from her condition and medical treatment notwithstanding that she has no capacity to feel pain and no conscious awareness” (para 62).

The Court had a witness statement and heard evidence from Dr A, consultant in neurorehabilitation at RHN and who had been involved in OQD’s care for many years. He has seen OQD around 50 times since his admission to the RHN.

He sets out that OQD has a diagnosis of hypoxic encephalopathy with him being in a PDOC. OQD has had no significant changes in his level of consciousness throughout the time he has been known to Dr A, although his general health conditions have fluctuated.

Dr A set out the multiple different tests which have been carried out over the years, and some of which I summarise above. These have all shown equivalent results that he has minimal consciousness, and that any responses he gives are “reflexive”. There is a strong consistency of results, all of which support Dr A’s assessment that OQD has been in a vegetative state since his brain injury. Dr A explains that this is defined as a state of wakefulness without awareness, with a preserved capacity for spontaneous or stimulus induced arousal.

Dr A explains that that condition is irreversible.

In terms of pleasure or pain Dr A records that although OQD some years ago was noted to show reflexive smiles, that has not been noted in recent years.

There was extensive discussion in the evidence as to the degree, if at all, that OQD suffers pain. It is apparent that he does suffer unpleasant experiences, but whether they should be described as “pain” is moot.

OQD suffers from frequent storming, or paroxysmal sympathetic hyperactivity, episodes. These result in high heart rate, high blood pressure, sweating, fever and muscle movements. They do respond to pain killers, particularly opiates. I note at this point that the family feel that OQD is sometimes too heavily sedated, but from a clinical perspective this is necessary to mitigate the negative impacts of the storming.

He suffers from spasticity and contractures in all four limbs, which again require significant levels of medication.

He is frequently unwell with infections, which are managed by the highly skilled care he receives. He has to be moved every four to six hours, to prevent his skin breaking down. However, even then he has what are described as “chronic wounds”.

He receives CANH vis a PEG and has to be suctioned around three or four times per day because he cannot remove secretions by coughing. He also has a catheter and a stoma bag.

It was the clear view of Dr A that it was in OQD’s best interests to cease the CANH. and allow him to die.

Professor Wade provided a second opinion report. He is a consultant in neurological rehabilitation, and a very experienced second opinion doctor in this field. He had reviewed all the clinical notes, had met the clinical staff and spoken to MD at length. He produced an addendum report dated 22 March 2026. His overall opinion about OQD’s best interests entirely accorded with that of Dr A.

There was a slight difference of opinion between Professor Wade and Dr A as to whether OQD was capable of experiencing pain. Having listened to the evidence and after some follow up questions to Professor Wade it became apparent that the issue turned on the meaning or concept of “pain”. Professor Wade explained that OQD had extensive damage to the higher level structures and networks in his brain, which are necessary for complex information processing, for making and storing memories, and for previously learned skills. But he still had a significant amount of brain tissue remaining, supporting breathing and other vital functions. Consciousness represents an overall awareness of an entire situation and in effect that had been lost. However, that did not mean that OQD was unresponsive to all stimuli.

Professor Wade explained that PDOC cases are on a spectrum, and patients can fluctuate in their levels of consciousness during a day. OQD was at the very lower end of consciousness with very limited responses, in the lowest 5%. He had a WHIM score of 3-5 behaviours, where the total number of behaviours scored is 61.

However, he did still have some response mechanisms within his nervous system so he could experience unpleasant feelings. However, he would not remember those feelings or that pain after the event.

Professor Wade was clear that whatever advances there may be in brain cell research and treatment, there was no realistic possibility of future treatment options, within any sensible timescale, that could restore OQD to meaningful consciousness.

Professor Wade had no doubt that given the absence of consciousness, the ability to experience unpleasant sensations and the overall burdens on OQD, that it was in his best interests for CANH to cease.

There was also written evidence from others who are involved in OQD’s care, but none of it adds materially to the evidence set out. A palliative care plan was produced to the court. Although neither witness was an expert in palliative care, Professor Wade had reviewed it and viewed it as being appropriate.

The family members filed a joint witness statement. They felt that OQD would have wished to continue living and to receive care and treatment even if it was difficult. They said, “he wanted to fight and stay with us” and they were convinced that he would have wanted to continue with CANH, whatever the hardships involved. They stressed that he had loved life and had always been an optimistic person and would have wanted life sustaining or life prolonging treatment.

In discussions with Professor Wade the family had placed hope in some treatment option becoming available in the future which could help OQD, including potential stem cell transplants.

All the parties adopt the same position. OQD does not have capacity. It is not in his best interests to continue receiving CANH because the burdens upon him strongly outweigh any benefits. The papers have been thoroughly reviewed on behalf of the Official Solicitor and one of the lawyers in her office has visited OQD.

The family’s wishes and views as to what would be in OQD’s best interests are a material consideration, but here they plainly do not outweigh the negative impacts or burdens upon OQD.

The family wish CANH for OQD to continue. They say that that is what he would have wished given his generally optimistic personality and his love of life. They also say that they want him to have a “natural death”, although it is not entirely clear what they mean by that.

I will set out my conclusions in the order given by Cobb J in PL as set out above.

OQD has been in PDOC since the assault in late 2013. He has no cognitive functioning. He has no awareness of the world around him, although he does have some lower order brain functioning so responds, at times, to some stimulations. Professor Wade says that he is in the lowest 5% of consciousness for patients with PDOC. In the time that he has been at the RHN his level of consciousness and overall condition has not materially varied.

There is no possible doubt that OQD does not have capacity to make any decisions. There is no prospect of recovery of consciousness. Even the most optimistic view of advances in medical science do not hold out any hope for OQD recovering capacity.

In respect of whether it is in OQD’s best interests that he should continue to receive CANH, I take into account the family’s evidence that they believe OQD would have wished to be kept alive at all costs. They are the people who knew OQD best before the injury and I accept their evidence. I would however give one note of caution. There is no reason to believe that OQD ever contemplated the situation he has found himself in over the last 12 years. A generalised view that one would want to be kept alive in all circumstances gives relatively little insight into whether the person would actually want to spend more than 12 years in the tragic situation OQD is in.

The quality of OQD’s life at present is utterly miserable. Professor Wade says that he has no ability to feel pleasure of any kind. On the other hand, his physical condition involves a number of very serious negative experiences – the storming, the spasticity and contractures, frequent infections and chronic wounds. The degree to which he suffers in respect of these is open to some debate, given his limited consciousness, but Professor Wade’s view is that he does suffer unpleasant sensations, albeit he has no ability to remember them. Some of the negative symptoms are managed by medication, but the medication to mitigate the storming itself leads the family to feel that he is being over sedated.

If the CANH is continued there is no prospect of recovery, or any improvement in the quality of his life.

There is a detailed palliative care package. Neither Dr A nor Professor Wade are experts in palliative care. However, this is a highly expert hospital with the highest standards of nursing care. I have every confidence that the palliative care will be of the highest quality. It will be delivered in his present ward, so he will have the benefit, to the degree he has any consciousness of it, of familiarity of environment.

I have set out above the family’s wishes and feelings and their views on OQD’s wishes and feelings. Those wishes are always to be afforded great respect but are not determinative, see M v N [2015] EWCOP 76 at [28] and [30]. I am deeply conscious of the family’s belief that OQD would have wished to be kept alive at all costs. However, even if I took the view that that was a clearly expressed and well thought through view, it is extremely unlikely that OQD was contemplating 12 years of no consciousness, many adverse experiences and no hope of recovery.

The family have spoken of wishing OQD to have a “natural death”, but for good or ill that is not an identifiable concept in a case such as this. There is nothing “natural” about the life that OQD is currently living, given that he is subject to a barrage of medical interventions, which are the only reason he remains alive.

I end with the sanctity of life and OQD’s dignity. The starting point will always be the preciousness of human life and a desire to preserve it. However, in this case OQD’s human dignity is completely undermined with simply no benefit for him. He is subject to highly intrusive and at a minimum uncomfortable treatment, with all the negative experiences that I have set out above. This is in a context where he does not experience any pleasure and where there is no hope of recovery or indeed even the most minor of improvements.

In those circumstances the balance is clear. It is not in OQD’s best interests to continue to provide him with CANH and it should be withdrawn, subject to a comprehensive palliative care package.

I will produce a separate judgment on the issues that arise in respect of the time it has taken to make this application.