Cardiff and Vale University Health Board v ST & Anor

These proceedings concern ST and they arise under the Mental Capacity Act 2005. The application has come before this court for final determinations. Following on from a contested hearing yesterday, it was impossible, having completed submissions after the usual sitting day, to reach a conclusion and deliver a judgment, and I wanted a little time to reflect. I therefore indicated I would give an oral judgment this morning and that given the relative urgency of the situation, I would approve a note taken.

The Court application before me centres around ST’s capacity to make decisions about medical treatment and associated treatment decisions. In the event she lacks capacity, I must then determine the course of action which is in ST’s best interests. The application comes about as those treating ST haven’t been able to reach agreement with ST’s adult children, specifically regarding the proposed removal of the Naso Gastric tube. The applicant Health Board is represented by Mr Wenban-Smith. The first respondent is EA, through her Litigation Friend who instructed Ms Scott. The Second Respondent is MB, ST’s daughter GM has chosen not to be a party, but she has attended court with her husband, ST’s son-in-law and both have played a part. There was also attendance yesterday by those from whom I have heard medically.

These applications for Serious Medical Treatment which come before the Court are difficult for everyone, and I am extremely grateful for the way in which the professionals and counsel and the family members have conducted themselves in difficult circumstances. I do not underestimate how it must be to hear and sit through the evidence, where the stakes are so high.

This matter came first for directions before the Vice President, Mrs Justice Theis, and orders were made on the papers on 24 April, which included the appointment of Ms Owen at MHM Wales as ST’s Litigation Friend, and directed that MB and his sister GM should be joined parties if they file a COP5. Only MB decided to make that application. The matter was listed for an urgent fully remote hearing on 30 April 2026. MB had great difficulty in managing that remote hearing and accessing that link, although he had been in early discussion with my clerk the night before. He ultimately didn’t attend. At that hearing, I made further directions, including for a second opinion from a clinician from a different health board – this was the opinion from Dr N, Consultant Stroke Physician at Cwm Taf Morgannwg University Health Board. I directed that this matter be listed for a final hearing on 13 May 2026.That was reflective of the urgency with which a decision was needed, and I think there was no dissent that it was appropriate to list this matter as soon as possible. It was clear to me it would have been unfair and not appropriate to list this as anything other than an attended hearing to enable participation.

MB has made it clear and reiterated to me at this hearing that he did not regard the Litigation Friend or Ms Scott as properly appointed or instructed. I am satisfied pursuant to the Vice President’s order that the Litigation Friend is properly appointed and Counsel instructed.

ST is 98 years old. She has lived all of her life in South Wales. She has brought up her children there. GM moved to the Northeast but MB lives with ST in the family home. ST is now in the care of the Health Board.

On 16 December 2025, ST was admitted to Y Hospital. . This was following a stroke. The effects of that stroke mean she has significant, lasting and enduring left-sided weakness (hemiplegia), swallowing difficulties (dysphagia), severe cognitive and communisation difficulties (expressive and receptive aphasia), which on evidence are continuing and she is said to be declining. ST continues to be treated in the stroke rehabilitation centre. As to nutrition and hydration, in view of her dysphagia, she receives clinically assisted nutrition and hydration and medication (‘CANH’) through the NG tube. This was first inserted on 17 December 2025, the day after her admission and, apart from a week between 12-19 February 2026, an NG tube has remained in place. I will say more later about the experience, as the evidence revealed, of having an NG tube for ST.

Before her admission, and despite what was already a very great age and some age-related conditions described as co-morbidities, ST was living relatively independently at home with help and support of MB. There are some differences of view in the medical evidence as to how mobile she was, but she was able to get out and about with the use of the stick I’ve seen recorded. She was on any view, a person who was fully engaged with and part of the community in which she had been a member for so long. She is an active member of the local Catholic Church, and her Faith is an important component of her life.

Over time and since her admission, concerns have arisen as to her ability to use and weigh important information as to her medical treatment. These background facts are set out in her medical records, chronology and capacity assessments and from those statements from clinicians and professionals and I have had written materials also from ST’s family, particularly her son.

Turning to the immediate background, there has been, between the time of ST’s admission and the application made, a series of efforts to reach agreement as to the course of future treatment. In looking at that background of efforts to agree, it is possible also to chart the progress of her nutrition and hydration. From that, I take the following:

On 15 January 2026, there was a meeting between Dr W and ST’s family to discuss her then presentation and the treatment options. A second internal opinion from Dr A was received and he assessed ST on 26 January 2026. That review and his opinion agreed with Dr W that ST was not suitable for a PEG due to her frailty. It was proposed that NG tube feeding should at that stage be discontinued and instead ST offered food orally to the extent she was able to tolerate this further than she was already having. From 27 January 2026, oral trials of food were commenced, and it appeared to all that ST appeared to enjoy the experience of eating yoghurt. It was decided that it would be right to continue NG feeding alongside oral feeding, with the aim of increasing the oral feeding if she tolerated it, with the balance shifting towards that.

On 12 February 2026, her NG tube came out, and it seems that dislodging prompted a best interests meeting with the family. At that meeting the clinical team gave the view it would not be in her best interests to continue NG feeding or to insert a PEG. I’ve seen in this respect a summary prepared by Dr W dated 17 February. In the days following, MB made it clear that he was not happy about the prospect of the NG tube not being reinserted. After discussion and communications, arrangements were made to reinsert it from 19 February 2026, and to allow for discussions in relation to forward planning to continue.

On 24 February 2026, another internal opinion was obtained from Dr J. He did not think that continued NG feeding was optimal, in the sense it might reduce appetite. One consequence of NG feeding is that patients can have the perception of feeling full, meaning their appetite is not stimulated. Dr J’s view was that prompting oral feeding was a valid management plan. He came to that view despite the indications that her cognitive deficit meant it was hard for her to understand what to do with the food in her mouth. EA needed encouragement to move the food to the back of her mouth and to swallow it. It was clear on the medical evidence that there is no difficulty in terms of ST’s physical ability to chew food and, as Dr J said in his oral evidence, her difficulties are a consequence of her cognitive issues, not her mouth or jaw.

Given the disagreements that arose between Dr W and MB, it was agreed that Dr J who prepared the report would take over as clinical oversight lead from 9 March 2026, and he has remained in that position. Dr J met with both of ST’s adult children on 9 March 2026 and at that meeting, the recording shows it was agreed that a PEG was not appropriate and that the priority should be working towards ST returning home. For ST to return home, it was explained that the NG tube needed to be removed. MB said her presentation would improve if there was a further prolonged period of NG feeding. This was the first instance I have seen of MB expressing a strong view that a further 4-6 weeks would be sufficient for ST to improve. It was agreed to revisit the question in a few days.

A few days after they did meet, and it was agreed to reduce feeding by 10% every 3-4 days, to allow ST to adjust to the reduced feeding in the hope oral intake would be stimulated to increase by the same amount. I have seen this summarised in an email sent to ST. This plan and process was paused on 24 March 2026, 12 days after it started, and after the third reduction as it was apparent by that time that ST’s oral intake was not increasing sufficiently.

Dr J scheduled a further meeting on 30 March 2026 with MB. MB did not attend and Dr J spoke to GM over the telephone. It was recorded that there was agreement that ST’s drowsiness and difficulty in rousing her was becoming more pronounced and efforts would be made to get her home. As part of the plan, GM offered to drive to Cardiff to discuss.

On 31 March 2026, there was a discussion between GM and ST’s IMCA, whereby GM described ST, as she has to me, as a Staunch Catholic. Her express view was that ST would want to ‘fight until the end’ and that, ‘if the Lord wanted her, he would have taken her by now, and she is meant to be here, and He has a purpose for her if she is still alive’.

In the weeks immediately leading up to the Health Board’s application on 17 April 2026, it is said that MB had very much disengaged from any further discussions. Nursing staff reported that MB had made accusations that they were trying to kill ST, and that with a further 6 weeks, ST would recover. I pause there to note that this recorded observation accords with the ways in which MB has expressed himself in evidence. I recognise the enormous strain he is under and so I see that that explains in part some of the language he has used, but it does not excuse it and it is disappointing to see language which suggests that clinicians are trying to kill their patients. I notice that when he gave his own evidence, Dr J also recognised that this function was no doubt the result of the high stakes and great emotion felt.

The Health Board applies for declarations pursuant to sections 15 & 16 of the Mental Capacity Act 2005 that ST lacks capacity to make decisions as to her medical treatment and care, and that it is lawful for ST to receive care pursuant to a palliative care plan. The Litigation Friend takes no issue regarding capacity and accepts that ST lacks capacity in respect of NG feeding and palliative care, but she does make observations about the relatively poor quality of evidence. The Litigation Friend reserved her position until the conclusion of the evidence, wishing perfectly properly to test the evidence. By the end of closing submissions, the Litigation Friend was able to reach her own view that the course of treatment involving removal of NG tube and her discharge home is in ST’s best interests.

MB and his sister vehemently and strongly oppose the application made. MB has resolutely and articulately explained that position. He has done so in circumstances where it would be difficult to imagine the impossibly hard and difficult emotional situation in which he finds himself.

I am asked to make a decision as follows:

There are limited findings of fact sought by the Litigation Friend which underpin the best interests decision and go to establishing the evidence as to ST’s wishes and feelings.

The legal framework is not disputed, and I indicated I would intend to adopt here that set out by Ms Scott in writing, subject to an amendment to reflect the Court of Appeal decision of Townsend. What follows, with my thanks for Counsel’s efforts is that to which I have had regard in reaching decisions for ST.

Sections 1 to 3 of the MCA 2005 set out the principles by reference to which capacity of those over the age of 16 is to be determined:

“1 The principles

(1)

The following principles apply for the purposes of this Act.

(2)

A person must be assumed to have capacity unless it is established that he lacks capacity.

(3)

A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.

…

2 People who lack capacity

(1)

For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.

(2)

It does not matter whether the impairment or disturbance is permanent or temporary.

(3)

A lack of capacity cannot be established merely by reference to—

(a)

a 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 his capacity.

(4)

In proceedings under this Act or any other enactment, any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities.

3 Inability to make decisions

(1)

For the purposes of section 2, a person is unable to make a decision for himself if he is unable—

(a)

to understand the information relevant to the decision,

(b)

to retain that information,

(c)

to use or weigh that information as part of the process of making the decision, or

(d)

to communicate his decision (whether by talking, using sign language or any other means).

(2)

A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means).

(3)

The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.

(4)

The information relevant to a decision includes information about the reasonably foreseeable consequences of—

(a)

deciding one way or another, or

(b)

failing to make the decision.”

Where a person is unable to decide for herself, there is an obligation to act in her best interests: s.1(5) MCA 2005. The statutory best interests “checklist” under s.4 MCA 2005 provides:

There is nothing to suggest that ST has made an advance decision or appointed an attorney. By ss.16 and 17 MCA 2005 the court may, by making an order, make the decision or decisions on her behalf in relation to a matter or matters concerning her personal welfare, including giving or refusing consent to the carrying out or continuation of a treatment by a person providing health care for ST. The exercise of such powers is subject to the principles set out in ss. 1 and 4 of MCA 2005, and therefore to the principles governing the determination of a person’s best interests.

The first question which the court should ask itself is whether it is in ST’s best interests to continue to receive clinically assisted nutrition and hydration (CANH). The second is whether it is in ST’s best interests to receive palliative care. As Baroness Hale stated in Aintree v James [2013] UKSC 67 at [22]:

“The focus is on whether it is in the patient's best interests to give the treatment, rather than on whether it is in his best interests to withhold or withdraw it. If the treatment is not in his best interests, the court will not be able to give its consent on his behalf and it will follow that it will be lawful to withhold or withdraw it. Indeed, it will follow that it will not be lawful to give it. It also follows that (provided of course that they have acted reasonably and without negligence) the clinical team will not be in breach of any duty towards the patient if they withhold or withdraw it.”

MCA 2005 Code of Practice

The MCA 2005 Code of Practice (‘the Code’) issued under s.42 MCA 2005 came into effect in April 2007. Chapter 5 of the Code titled ‘How should someone’s best interests be worked out when making decisions about life-sustaining treatment?’ includes the following guidance:

“5.31

All reasonable steps which are in the person’s best interests should be taken to prolong their life. There will be a limited number of cases where treatment is futile, overly burdensome to the patient or where there is no prospect of recovery. In circumstances such as these, it may be that an assessment of best interests leads to the conclusion that it would be in the best interests of the patient to withdraw or withhold life-sustaining treatment, even if this may result in the person’s death. The decision-maker must make a decision based on the best interests of the person who lacks capacity. They must not be motivated by a desire to bring about the person’s death for whatever reason, even if this is from a sense of compassion. Healthcare and social care staff should also refer to relevant professional guidance when making decisions regarding life-sustaining treatment”.

“5.33

... Doctors must apply the best interests’ checklist and use their professional skills to decide whether life-sustaining treatment is in the person’s best interests. If the doctor’s assessment is disputed, and there is no other way of resolving the dispute, ultimately the Court of Protection may be asked to decide what is in the person’s best interests?”

“5.38.

In setting out the requirements for working out a person’s ‘best interests’, section 4 of MCA 2005 puts the person who lacks capacity at the centre of the decision to be made. Even if they cannot make the decision, their wishes and feelings, beliefs and values should be taken fully into account – whether expressed in the past or now. But their wishes and feelings, beliefs and values will not necessarily be the deciding factor in working out their best interests ...”

“5.41

The person may have held strong views in the past which could have a bearing on the decision now to be made. All reasonable efforts must be made to find out whether the person has expressed views in the past that will shape the decision to be made. This could have been through verbal communication, writing, behaviour or habits, or recorded in any other way (for example, home videos or audiotapes)”

“5.47

Section 4(6)(c) of the Act requires decision-makers to consider any other factors the person who lacks capacity would consider if they were able to do so. This might include the effect of the decision on other people, obligations to dependants or the duties of a responsible citizen.”

The sanctity of life

In ST’s case this aspect, along with those aspects considered at [44]-[46] below have featured prominently in the arguments of her family. In a case of this kind, the fundamental starting point is a strong presumption that it is in a person’s best interests to stay alive. As Sir Thomas Bingham MR said in Airedale NHS Trust v Bland[1993] AC 789at [808], "A profound respect for the sanctity of human life is embedded in our law and our moral philosophy”.

Munby J (as he then was) stated in R (Burke) v GMC[2004] EWHC 1879 (Admin) at [116], (approved by the Court of Appeal [2005] EWCA Civ 1003 at [61]), “There is a very strong presumption in favour of taking all steps which will prolong life, and save in exceptional circumstances, or where the patient is dying, the best interests of the patient will normally require such steps to be taken. In case of doubt, that doubt falls to be resolved in favour of the preservation of life. But the obligation is not absolute. Important as the sanctity of life is, it may have to take second place to human dignity…”

The sanctity of life is not absolute. There are cases where it will not be in a person’s best interests to receive life-sustaining treatment: Aintree v James [2013] UKSC 67 at [35]. As Lord Goff said inBlandat [864], "…there is no absolute right that a patient's life must be prolonged by treatment or care, regardless of the circumstances."

In An NHS Trust v Y[2018] UKSC 46, Lady Black delivering the judgment of the court stated at [91]:

“Permeating the determination of the issue that arises in this case must be a full recognition of the value of human life, and of the respect in which it must be held. No life is to be relinquished easily. As Baroness Hale said at para 35 of Aintree University Hospitals NHS Foundation Trust v James (supra):

“The authorities are all agreed that the starting point is a strong presumption that it is in a person’s best interests to stay alive.”

And yet there may come a time when life has to be relinquished because that is in the best interests of the patient…”

One of the considerations which is directly relevant to the sanctity of life and the weight to be attached to it in the overall analysis is what the person would have thought of their life themselves in the circumstances they now face (PL v Sutton Clinical Commissioning Group[2017] EWCOP 22, Cobb Jat [66] and A Clinical Commissioning Group v P[2019] EWCOP 19, MacDonald J at [49]).

In relation to the provision of CANH Lady Black stated at [116]:

“It is important to acknowledge that CANH is more readily perceived as basic care than, say, artificial ventilation or the administration of antibiotics, and withholding or withdrawing it can therefore cause some people a greater unease. However, it was decided as far back as the Bland case that CANH is in fact to be seen as medical treatment.” (emphasis added)

The best interests analysis

The continuation or withdrawal of medical treatment, including the provision of CANH, must be determined in accordance with the person’s best interests, which are to be ascertained by applying s.4 MCA 2005 and weighing up the advantages and disadvantages of each proposed course.

The case of Aintree is of assistance in this regard in two respects. Firstly, in the need to consider the position from the perspective of the individual patient. Secondly, in the need to interpret futility in accordance with the speech of Lady Hale at paragraph 43 in which she said:

“It follows that I respectfully disagree with the statements of principle in the Court of Appeal where they differ from those of the judge. Thus it is setting the goal too high to say that treatment is futile unless it has “a real prospect of curing or at least palliating the life-threatening disease or illness from which the patient is suffering”. This phrase may be a partial quotation from Grubb ,Laing & McHale, Principles of Medical Law , 3rd ed (2010), para 10.214, where the authors suggest that “Treatment can properly be categorised as futile if it cannot cure or palliate the disease or illness from which the patient is suffering and thus serves no therapeutic purpose of any kind” (emphasis added). Earlier, they had used the words “useless” or “pointless”. Given its genesis in Bland's case [1993] AC 789 , this seems the more likely meaning to be attributed to the word as used in the Code of Practice . A treatment may bring some benefit to the patient even though it has no effect on the underlying disease or disability.”

In Aintree(supra) Lady Hale held that each case is different and must be determined on its own facts [36] and [39]:

“36.

The courts have been most reluctant to lay down general principles which might guide the decision. Every patient, and every case, is different and must be decided on its own facts. As Hedley J wisely put it at first instance in Portsmouth Hospitals NHS Trust v Wyatt [2005] 1 FLR 21, "The infinite variety of the human condition never ceases to surprise and it is that fact that defeats any attempt to be more precise in a definition of best interests" (para 23). There are cases, such as Bland, where there is no balancing exercise to be conducted. There are cases, where death is in any event imminent, where the factors weighing in the balance will be different from those where life may continue for some time.”

39.

The most that can be said, therefore, is that in considering the best interests of this particular patient at this particular time, decision makers must look at his welfare in the widest sense, not just medical but social and psychological; they must consider what the outcome of that treatment for the patient is likely to be; they must try and put themselves in the place of the individual patient and ask what his attitude to the treatment is or would be likely to be; and they must consult others who are looking after him or are interested in his welfare, in particular for their view of what his attitude would be.”

At [44] and [45] in Aintree, it is said that the purpose of the best interests’ test is to consider matters from the patient’s point of view. The quality of life should not be judged by the values of others but from the particular perspective of the patient (i.e. what the patient’s perspective would be on their quality of life): the judge must arrive at an objective assessment of whether continuation of life-sustaining treatment is in this patient’s best interests, seen through the “prism of the subjective position of the patient” (Barnsley Hospital NHSFT v MSP[2020] EWCOP 26at [33]).

It is important to be rigorous and scrupulous in seeking out what the person’s views would have been about the decisions in issue. Their clarity, cogency and force will have a direct impact on the weight they are to be given (see Sheffield Teaching Hospitals NHS Foundation Trust v TH and Another[2014] EWCOP 4, per Hayden J at [56]).

If the person’s present wishes can be ascertained with reasonable confidence, they should not be undervalued (see Wye Valley NHS Trust v B (By His Litigation Friend the Official Solicitor)[2015] EWCOP 60 per Peter Jackson J at [10] to [18]. But they are not necessarily determinative: see Hayden J in M v N [2015] EWCOP 76at [28] and [30]:

“…where the wishes, views and feelings of P can be ascertained with reasonable confidence, they are always to be afforded great respect. That said, they will rarely, if ever, be determinative of P's 'best interests'. Respecting individual autonomy does not always require P's wishes to be afforded predominant weight. Sometimes it will be right to do so, sometimes it will not. The factors that fall to be considered in this intensely complex process are infinitely variable e.g. the nature of the contemplated treatment, how intrusive such treatment might be and crucially what the outcome of that treatment maybe for the individual patient. Into that complex matrix the appropriate weight to be given to P's wishes will vary. What must be stressed is the obligation imposed by statute to inquire into these matters and for the decision maker fully to consider them. Finally, I would observe that an assessment of P's wishes, views and attitudes are not to be confined within the narrow parameters of what P may have said. Strong feelings are often expressed non-verbally, sometimes in contradistinction to what is actually said. Evaluating the wider canvass may involve deriving an understanding of P's views from what he may have done in the past in circumstances which may cast light on the strength of his views on the contemplated treatment. 

…

It is clear, therefore, that the framework of the Act and the scheme of the Code of Practice place great emphasis on the importance of personal autonomy and the obligation to be alert to direct or indirect discrimination against those who lack capacity. Decisions taken in the 'best interests' of an incapacitous individual must factor in the recognition that respect for an individual's past and present (where relevant) wishes and identifiable codes and beliefs by which he has lived are a crucial part of promoting best interests. To subvert these to a substitution of an objective evaluation i.e. to superimpose what the Court thinks best, may result in indirect discrimination. The central objective is to avoid a paternalistic approach and to ensure that the incapacitous achieve equality with the capacitous.”

Where a patient is suffering from an incurable disability, a key question is whether they would regard their future life as worthwhile. It was made clear in Re J [1991] Fam 33 at 47A, that it is not for others to say that a life which a patient would regard as worthwhile is not worth living. In W v M (supra) Baker J (as he then was) noted that respect must be afforded to the dignity in the life of a disabled person:

“235.

Able-bodied people frequently feel (even if they do not say so) that disability invariably restricts the enjoyment of life. With the growth in understanding about disability in recent years, however, has come an awareness that people with disability often experience profound enjoyment of life, within the limitations that their disability may impose. It is the arrogance of the able-bodied that, simply because someone is confined to a wheelchair, their enjoyment of life is restricted…

…

241.

Anyone would wish the end of life to be as dignified as possible. In my judgment, however, there is dignity in the life of a disabled person who is being well cared for and being kept as comfortable and as free from pain as possible, and being provided with the maximum opportunity to extend their enjoyment of life that their disability allows.”

When considering a person’s past wishes and feelings for the purposes of section 4(6)(a) of MCA 2005, the context in which past statements were made is important. If there is ‘no way of knowing’ how a person feels about their current life ‘the court must be particularly cautious about attaching significant weight to statements...made’(W v Mper Baker J at [227]-[228]).

In a case concerned with the withdrawal of CANH, Macdonald J in A CCG v P & TD[2019] EWCOP 18 came to the following conclusion (paragraph 71):

There are also however, a number of cases in which the Court has concluded that the continuation of life sustaining treatment has not been in P’s best interests in spite of making a finding that P’s wish would have been for the treatment to be provided. See for example: Manchester University NHS Foundation Trust v KM[2021] EWCOP 42 in whichKeehan J accepted that P was a deeply religious Pentecostal Christian with a deep belief in divine healing but also held that continued ventilation on the ECMO machine was futile and contrary to his best interests, even though its withdrawal would result in death, owing to his almost non-existent lung function following Covid. He was not a candidate for a lung transplant even though if it had beenpossible it would have cured the pathology which was liable to kill him.

InKings College Hospital NHS Foundation Trust v X[2023] EWCOP 34Theis J held that withdrawal of ventilation and CANH was in the best interests of 27 year old X, who was in a PVS following a car accident, despite finding that he would wish to continue treatment to be with his family, and in accordance with the Christian religious beliefs he held. In Northern Care Alliance NHS Foundation Trust v KT [2023] EWCOP Hayden J held that the provision of haemodialysis to a man in PDOC with end stage renal failure was not in KT’s best interests, despite having found that KT was a man who would not want his life to be brought to an end in any circumstances in accordance with his Pentecostal beliefs.

Where a person’s religious faith is central to their life, the Court of Appeal in XY (withdrawal of treatment) [2024] EWCA Civ 1466 has held it is incumbent on the Court ‘to take into account the evidence about her beliefs and values when “making the choice which is right for [her] as an individual human being”. [para 51]. However, important as these are, they are only ‘one factor in the overall evaluation of best interests. They had to be considered in the context of the totality of the evidence.’ [para 52].

The court also has a duty to consider the views of anyone engaged in caring for the patient or interested in their welfare (s.4(7)(b) MCA 2005). This duty will incorporate the views of professionals and the views of family members or close friends, where such views can be ascertained. The role of the family can also be important in providing the court with relevant information about the patient’s pre-morbid character, beliefs and values and relevant expressions of wishes about attitudes towards being given intrusive life-preserving treatment in the face of severe disability. Thus, consultation of those with an interest in the person’s welfare is for two purposes: any information that they can provide which increases knowledge and understanding of the person’s relevant wishes and feelings and secondly, the consultee’s own views on the person’s best interests.

A decision by the Court, including the use of the balance sheet approach, does not give rise to any breach of Articles 2, 3, 5 or 8 of the ECHR: see e.g. In re M [2012] 1 WLR 1653, paras 86 to 96.

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

With regards to the extent of the investigative process to be undertaken prior to a best interests decision being made where the parties agree on outcome, it was held by Mr Justice Peter Jackson in Re M(Incapacitated Person: Withdrawal of Treatment[2017] EWCOP 19 at [27] that:

“...in reaching this decision, I was mindful that this was in effect an application made by agreement and that there are always more investigations that can be made, questions that can be asked, stones that can be turned. Here, I was satisfied that the court had all the essential information and that further inquiries would not alter the fundamentals…” and that “what is important is that those called upon to express a view should do so conscientiously, drawing upon their personal and professional knowledge of the individual concerned”.

The more recent decision in Townsend v Epsom and St Helier NHS Trust 2026 EWCA Civ 195 summarised the procedural approach to be taken to best interests in the context of clinical decision making around life sustaining treatment, as follows at paragraph 68:

It is not my intention to recite all of the evidence I have read and heard. I will refer to the evidence which has influenced my decision making. The facts are well known to the parties, the legal and medical professionals, those present and the family. It would be impractical to replicate this in its entirety to place someone else in the exact same position as those involved or present.

I have read all of the written evidence, which includes the medical records, the witness statements, the care planning documentation, with particular focus on the evidence of Dr , Ms M, Dr A, Dr D, the Litigation Friend and Dr N, together with the parties’ position statements and statements filed on behalf of the family, most recently MB’s statement received overnight before the hearing.

I have heard oral evidence form Dr J, from MB and I have heard from GM and BM. In the case of MB, I have not thought it fair to him to separate out what he said in evidence and what he said in submissions. Rather, I have adopted the approach of hearing what he wanted to say, sometimes outside of the usual order. What is important to me to hear is what he wants to say, and not the format of it and when. He was however appropriately and fairly cross-examined by Counsel. I have been assisted by hearing the parties’ written evidence developed in oral submissions.

Dr J is a Consultant in General, Geriatric and Stroke Medicine at Y Hospital, employed by the Health Board. His role is as a consultant overseeing ST’s care. He was required to give evidence primarily by the Litigation Friend, it having been agreed that the consensus of the clinical and medical view meant he would be able to deal with all matters and that it was unnecessary to hear live evidence from any other medical professional. In relation to his everyday contact, Dr J sees ST formally at the bed side at his once-a-week ward rounds. Otherwise, he sees her in the corridor as he is passing, by which it became clear that he meant as he went down the corridor and sees her incidentally in her bed space. He does not have any day to day nursing or caring type experience of her, for example in respect of routine feeding, administration of fluids and the like, but he did give an account of where he had some experience of her taking food, related giving ST some Terry’s chocolate orange, which he regarded as being enjoyed by her.

Dr J has prepared two witness statements dated 15 April 2026 and 6 May 2026. By the time he entered the witness box, Dr J had also seen Dr N’s report dated 7 May. He had read and agreed with her over-arching opinion which was ‘over the past two to three months there is a trend in the notes to reduced alertness, engagement with staff and passive responses (shrugs) to questions about her care. She seems to have reduced pleasure from food which she had in late January/early February and reduced volume of food intake. This suggests to me that she may be entering the last weeks to short months of her life. Given her advanced age and length of hospitalisation for severe stroke she is likely to be in a state of breaking down and shutting down slowly, and this process is not being reversed by active medical care with clinically assisted nutrition’.

Dr J in his oral evidence was unshaken from that which he had committed to writing. As to ST’s presentation and responsiveness, he said this: ‘I have had the opportunity to examine ST as her consultant on many occasions since the beginning of March 2026. During this time, I have observed a further deterioration in her condition in respect of her becoming less responsive and engaged as each week passes despite receiving a level of nutrition that would maintain her clinical stability. When I first took over care ST was able to smile and keep her eyes open for at least 10 minutes. We would be able to interact by me using hand gestures to demonstrate the roof of a house and pointing of a window to imply the act of going home. This was met with her affect brightening. When I pointed at her NG tube and gestured the idea of this coming out or pointing at the mitten and again gesturing that this [is] to come off, ST used to brighten and when the mitten was removed temporarily on a ward round, she expressed relief in her facial expression. Over the weeks since then ST has become less engaged and instead will only keep her eyes open for between 5 and 10 seconds. We are therefore now not able to get a sense of how she might feel about these things now’.

Dr J in his oral evidence explained a great deal more about the mitten, which is worn on the hand not affected by the stroke. Wearing it is necessary to prevent her from pulling out the NG tube. It is described in his evidence as something like a boxing glove in its shape and size, and has Velcro fastenings criss-cross so, by its nature, it is not easy to take off and it has the unfortunate but necessary effect of taking the one hand that she still has good use of, and making it impossible for her to use it.

On prognosis for ST, if she were to continue on NG feeding, Dr J was again relatively pessimistic, saying ‘NG feeding will maintain a calorific intake, but without the ability to sit out and interact ST will become frailer and experience increased muscle wasting. Deterioration could take weeks to months, with an increased risk of aspiration pneumonia due to her inability to swallow. Other things like an infection could change the trajectory. Without artificial nutrition and hydration, ST will deteriorate in a faster way, with fluid but without food this could extend to a few weeks. If she eats small quantities the span might be longer’. In relation to ST’s experience of her situation, to the extent she is able to express it, Dr J says, ‘ST is, in my view and the view of the nursing staff on the ward, demonstrating distress at having the NG tube reinserted each time this is needed and discomfort from it being in situ as demonstrated by her trying to remove the tube on so many occasions. She has pulled out the NG tube on eleven occasions and has had to wear a mitten to prevent her from pulling out the tube. Ward staff and I also believe that the mitt causes her distress due to frequent episodes of it being removed and an expression of relief when it is removed intentionally for hygiene care’. He corrected himself in oral evidence in saying that he had thought it was 11 times but in reviewing the notes he thought it had been removed 10 times and replaced on 11 occasions. That did not alter his view of the effect of it, and his overall view orally was entirely consistent with his evidence in writing. He said that ST has had 16 weeks of NG feeding in total and if it was going to result in improvement, it would have happened by now. He went on that, as it is, they are seeing deterioration, with the NG tube prolonging her death rather than aiding a recovery. He has concluded that it is not in ST’s best interests for NG feeding to continue, with the treatment plan compiled with palliative care to be delivered, and that it is not in ST’s best interests to receive feeding unless in compliance with that plan.

He accepted that in respect of oral feeding and some elements of ST’s communication, these might be more successful with family, but he did not agree that this was so with those aspects described by MB in respect of manual dexterity and capabilities. He reiterated orally that although the mitten was problematic, it was wholly necessary given the NG tube being in situ.

Dr J was asked in evidence by MB about the possibility of a return home with a NG tube in situ. He was asked specifically about a leaflet available at the hospital suggesting that the management of an NG tube at home was perfectly feasible and common place. Dr J’s evidence was that the leaflet was a matter of generality and was not the basis of his decision making in this circumstance. He set out that there were risks associated with the NG tube at home and including the possibility of a blockage, aspiration, the need for re-insertion, including the need to be certain that it was inserted correctly so that there was no danger of it inadvertently directing materials to the lungs with the resulting aspiration and pneumonia risks. Dr J said that none of that could be done safely at home for someone in ST’s condition. Specifically, he said that the ordinarily used PH tests and testing to ensure that it is correctly situated as to her stomach and lungs were notoriously unreliable in a person of her age and condition, so it was necessary for the NG tube to be reinserted in a hospital, with an option of x-ray for confirmation as to its siting. Should the tube become dislodged unexpectedly or accidentally, that hospital trip would be to the accident and emergency department and Dr J was very clear that he would not advocate for that in a lady of this age and health. Dr J was clear that a return home with an NG tube in place was not offered, and that this was a clinical decision, and not in her best interests. Therefore, this is not an option available to this court.

Dr Jelley attended a meeting on 5^th May 2026 with MB to discuss the option for ST’s discharge home. As Dr J had indicated in the relevant part of his second witness statement, and as appears in Dr D’s evidence, this meeting was overall felt to be more constructive and at its conclusion both Dr J and Dr D supported, on balance, a plan for a discharge home with the NG tube being removed on the day of discharge home to allow ST to be in her best and most robust health as she left hospital and subject thereafter to a special care plan. This care plan will entail:

The move to a consensus for a discharge home was a change in the Health Board’s position from the hearing on 30 April 2026. That seemed to be reflective in part of an improved confidence following the meeting with MB. That progression was undermined somewhat by the hostile way MB expressed himself in the witness statement filed overnight and the entrenched way in which MB presented himself in evidence. I did wonder if this would alter the Health Board’s position, but Dr J, given the option, took the approach that this was not really a departure from MB’s views expressed orally, on which they had agreed to differ, and that this did not depart from the Health Board’s willingness to work with the family.

ST’s family asked Dr J questions about why the focus is on what could be done to allow ST to die with dignity at home, as opposed to working to improve her health and letting her live at home. Dr J explained that ST has suffered very extensive damage to the brain and there is not a possible therapeutic step to reverse that. He further explained that her body, at 98, was showing signs of failing and shutting down. The drowsiness, the disinclination to eat and her lack of cognition in relation to swallowing, are all indications for Dr J that ST is moving towards the next phase and that the process of dying is underway. He comes to that view against the background of his working life spent in geriatric medicine. He disagreed that there were real signs of recovery and improvement. This was, as he saw it, a picture of decline and that was what was shown by her body shutting down, her increasing frailty and her losing the ability to be roused and alert.

It is not only the medical evidence which falls to be weighed in best interests decision for ST but the wider social aspects of life. So in this case I heard evidence from 3 members of ST’s family. MB is 75 and it would be impossible not to understand at once that he is a devoted son who loves his mother very much. He told me that he found it difficult to speak in court about his mother’s situation, but he told me also that he was not in need of a barrister. At times his distress overwhelmed him and, at my invitation, he left the court whilst Dr J spoke of his mother’s likely deterioration physically as her life draws to a close. MB, in his statement, filed for this hearing said:

The distrust which that part of his statement indicates was reflected throughout his oral evidence. He told me that he wants his mother to come home not with the NG tube removed but with it still in place He does not accept that this is not an option. He read to the court extracts from a general information leaflet from the hospital which emphasised how easy it is to be at home with an NG tube and made the point that, since that is possible for others so too for his mother. He does not accept as well-founded, or agree with, the position of the Health Board that the clinicians would not discharge her home with an NG tube. Since they will not however, he proposes that ST should remain in hospital on NG feeding for another 4 -6 weeks and at that stage if she has not increased her oral food intake should be discharged home, as is said by others should happen now. If, as he hopes, her oral intake does increase, she will have gained strength and should be discharged home to live there in her recovered state.

MB visits every evening. He says that he is able to feed his mother orally pureed food and, with patience and time, that is successful. She will over a session take a jar of pureed baby food about 8 -10 teaspoons full, which he feeds her gently and at her own pace. He acknowledged that it is sometimes difficult to get his mother to take food. If she is not interested, he will put it aside and described what sounded like tempting her with the promise of something sweet to finish with if the main course were taken. In this part of his evidence, I formed an impression of patience and loving concern that she should be helped to take nutrition so as to regain her strength. He described also her pursing her lips as if to blow kisses and of her showing amusement. He went on to say that she is able to reach for a feeding cup and take it to drink for herself and that she has improved in recent times to the extent that, for example, she can take a pen and pass it from one hand to her other hand. As to communication his evidence was that she is able now to speak to him in words forming sentences. I listened carefully to his description of his mother’s state and in doing so held in my mind that which I had read in the medical recordings and reports.

MB and other members of the family were clear that ST would not want to go into a nursing home. Her feelings were clear from when she used to visit the sick and she had said as much. There had also been an occasion when, on a different admission, there was a wrongly placed DNAR in her medical record, which she had ripped up and made it clear that she was wholly opposed to it. MB told me that he knew also, as they had discussed it, that his mother would want, when her time came to die, to do so in her own home and in her own bed. He was, however, at pains to tell me that whilst this was of course her wish, he felt that the question was the wrong one to be asking because ST is in his view improving and not deteriorating. What should be asked is not whether she should be enabled to come home to die but how can she be helped to come home to live.

GM and BM are important people in ST’s life, and they wanted to tell me about her as the person she is and has been, and not as a patient lying in a bed. BM spoke warmly of the woman he has known for 47 years and who for 45 of them had been his mother-in-law. He spoke of her warmth and generosity to him when he first came into her family. He told me he was poorly educated and joined the army barely literate, but with her encouragement, he had been able to channel his talent for storytelling and the spoken word into writing, to the extent that he now has published work. That development has enriched his own life, and he puts this squarely at the door of ST’s contribution to his life. He told me that she was a fiercely independent woman, a committed and lifelong member of the Roman Catholic faith. He spoke about how she had worked hard to bring up her two children and that she went through real hardship. She was a strong-minded woman who knew her own mind; she could be cantankerous and she could be difficult. I noticed that almost all of the time he was speaking of her he did so in the past tense, recognising that the woman he is describing is as she was living in the community and sometimes as her younger self. Reverting to the present tense he said he knows she would want to live and he knows she is frightened. BM went on to say that he would like her to be given the chance to come home and to go in her time with God’s will.

GM agreed with her husband and also emphasised her mother's strong faith. She had taught not only her own children a lot but all sorts of others too. She had in her long life affected a lot of people and for the good. She is devout in her faith ‘I can’t see her wanting to give up she will go in God’s good time’. With evident fondness and bleak humour at the end of her evidence she said ‘I know my mother is still here for a reason - I’ve not quite figured out what it is yet’. Like her husband GM spoke with warmth of her mother and brought out the strong capable determined person ST has been for so many years.

It is of very great value to hear that evidence from the three family members. They can tell me in a way that others cannot, of the person who lies behind what is known now. Through the lens of their evidence, I can look to see how ST was in earlier years and that is of significant help to me as I try, as I must, to work out, from a rounded view of the evidence, her likely wishes and feelings, as the extent she can now express these is now so diminished. In turn this aspect of the evidence carries significant weight in the best interests analysis.

It is common ground that ST has an impairment in the functioning of the mind or brain. The question is whether she is rendered unable, within the meaning of the MCA, to understand use and weigh information to make the relevant decisions. The formal capacity evidence comes from Dr H and Dr W, who both conclude she lacks capacity to make decisions around the NG tube removal. I have also been invited to have regard to the views in the report of Dr N. Whilst the observations made by the Litigation Friend as to the poor quality of the evidence are ones to which I have paid careful regard, the submission of the Health Board is the overall evidential picture makes it clear that she lacks capacity to make decisions in relation to NG feeding and palliative care. The Litigation Friend’s position is that based on the evidence and based on her own meeting with ST, she accepts that she is at least unable to use, weigh or communicate any decision in relation to NG feeding and palliative care. That ST lacks capacity appears to be accepted by all parties. In assessing capacity, having considered all the capacity assessments and her own expressed views to the extent it has been possible to obtain them I am satisfied that ST lacks capacity for the relevant decisions.

On the basis that ST lacks capacity, I turn now to consider what is in her best interests.

As to this, I am asked by the Litigation Friend to make limited but critical findings in relation to the issues, since those underpin the assessment of ST’s wishes and assessment of best interests. These are as follows:

As to the first issue, this is of very great importance and central to the best interests analysis. I have heard very clearly from MB , as detailed elsewhere in this judgment, the ways in which he believes his mother is improving It is in my view likely, and certainly more likely than not, that ST is able and willing to take more food orally when given the opportunity to do so with the unhurried and patient assistance of her son than when she is one of 38 patients on the stroke ward amongst whom the professional carers must divide their time and attention. I also readily accept that she is likely to present in a brighter way, showing pleasure in the presence of her son and indeed other family members. Dr J when asked about this aspect, said that it was not something that surprised him since it is in the character of reports he has heard from other relatives of other patients. It may not be fully understood why the presence and comfort of those who are closest and most loved has a noticeable effect but, the tenor of his evidence was, it does.

It is well recognised that often, people whose communication is impaired or has become impaired are more easily understood and so may be rather better able to communicate with those who know them and spend the greatest time with them. MB has spent time with his mother each day since her admission, I think it is more likely than not that this, in part, may account for some of what MB says about his mother being able to exchange with him words he understands. Though I note that BM in a vignette he gave me of a time much earlier in her hospital stay when ST was sitting beside her daughter who was doing a crossword described her when apparently taking part in it as communicating by ‘a sort of grunting’. So it is that I treat this part of MB’s evidence with some caution as I set it within the recordings of the SALT team involvement and the engagement with other professionals. Having listened to and watched carefully MB as he spoke, and having read the way in which he expressed himself in writing that his mother is improving and verbalising in sentences, I formed the impression that the disconnect between the experience, observations and recordings of his mother by others and MB’s account are partly - but only partly - explained by his greater familiarity with his mother. I do not think it is credible that the wholly formed sentences of which he gives evidence would not, over so long a period of time in hospital, ever have been noted by any other professional. I remind myself of the entry in the hospital notes of which Dr J gave evidence in which at a stage when he was able to communicate with ST (that now having diminished) and the reliance on pointing, head shaking and nodding and very minimal verbalising). I have also read carefully the evidence in the bundle from Ms M whose evidence is that ‘she can occasionally verbalise yes or no in response to questions but this has been inconsistent; on 2 occasions she has been able to join in with ‘automatic speech’. That phenomenon was explained at this hearing as one whereby deeply embedded learned language can be produced even at a late stage, absent other communication abilities. Dr J explained that counting to 10 and singing Happy Birthday, for someone of ST’s advanced age, in her childhood would have been learnt as rote as that is how learning was in her childhood and are familiar examples – to those in his specialism - of the phenomenon of automatic speech. He mused that it may turn out to be different for more recent generations who learn in different ways now. Ms Moss’s evaluation continued: ‘she has been unable to point to pictures functionally or to write to support her communication; she does have facial expressions and spontaneous occasional gestures to indicate how she is feeling’.

Standing back and reviewing the totality of the evidence, I have come to the view that some of what MB says is exaggerated. I cannot tell, and nor is it necessary for me to determine in the context of this application, whether that exaggeration is knowing and deliberate, or whether it is borne of his desperate wish to see improvement in his mother’s condition and to have others acknowledge it. I have also considered very carefully the account of ST moving a pen from her left to her right hand. And reaching for a feeding cup and drinking from it herself unaided. The account of the pen does not fit with the very compromised left side limb consequences of the stroke. There are clear recordings that she has use of her right but not her left hand. Her right hand however is encased in the ‘mitten’ of which I have heard evidence at this hearing described as something akin to a boxing glove.These aspects were put to Dr J who in contrast with his response to the reports of oral feeding and verbal responses to her son, said that this did surprise him, and he did not accept it as it was not consistent with her clinical state. To the extent that MB relies on his accounts of this improvement in dexterity as evidence of ST’s recovery I prefer and accept the evidence of Dr J and the written clinical and medical evidence contained within the bundle.

I have been driven to the conclusion on a careful consideration of the totality of the evidence that I cannot conclude that she is as MB asserts improving. There was a time in February when the NG tube was removed. It has been 11 weeks since it was replaced and NG feeding has continued over that time. The NG feeding is not futile it is delivering nutrition that is keeping her alive but it is not treatment for her underlying and significant brain injury from the stroke The overall picture on the evidence is not that she is improving but that she is declining and becoming increasingly frail. I accept the consensus of the clinical view that she is approaching the end of her life.

Where I have rejected as not credible MB’s account of ST’s improving condition, I have not found it necessary to make any further determination about how the evidence he gives of specific examples of his mother’s improvement which are not seen by others comes about. I do observe however, and it has been apparent to me, that he has shown something near to desperation in response as he faces the evidence that his mother may soon be approaching the end of her life. I have in mind also his own written evidence in which he gives an account of a conversation with his mother, where she had said to him that she would expect the doctors to do everything to prolong her life. This prompted MB to make certain promises to his mother, for which he says she was grateful and reassured. It is my impression that the weight of these promises is pressing heavily on MB, and he is resolute in keeping and holding to his promise. There are relatively few who still, at the age of 75, have their mother beside them in this life. With that blessing of a life so long lived, comes the enormity of the impending loss and its impact for MB.

There is good evidence that ST finds the NG tube unconfutable and burdensome. There are on some accounts in the evidence 10 occasions, on others 11, of her removing the NG tube. The exact number matters not, I accept that she has. I also take note that in the capacity assessment of Dr W she has been recorded as trying to remove the mitten. Earlier in the admission, she communicated dislike of the tube and mitten. I accept that she finds the NG tube distressing, including when it is changed and that she would like it removed.

I am also satisfied that there is evidence that if ST is nearing the last phase of her life - as I have concluded she is - and is not on a trajectory to recovery, she expressed wishes that indicated that she would want this to be in her own home. I have accepted she is declining not improving, and she does not, on account of the very serious consequences of her stroke, have any prospect of recovery.

In his oral evidence, and in response to questions from family about why his views are expressed in terms of coming home for the end of her life, Dr J explained that in this phase, he saw the situation as being about care and treatment in the context of someone who is in the process of dying. He said that predicting life expectancy is a difficult question; he is not able to indicate whether she has a life expectancy of weeks or more or less, and so treatment options are with the aim of how best to the manage process of dying in dignity and in the comfort that home offers. That is something that he regards as consistent with what we know of ST’s wishes.

As I consider the burdens and benefits in the best interests analysis, I have in mind first of all, the view of Dr N sought as a second opinion for this court, who came to a clear view that she is entering the last weeks or short months of her life. I also need to consider risks to ST of continuing to be fed by NG tube. I accept the evidence that she is likely to be getting increasingly frail. I have heard and accept the evidence of Dr J that she is at risk of aspiration pneumonia. The other risks, which are not so prominent at the moment, but are likely to come to the fore are skin breakdown, infection, and nasal sores from the pressure of the NG tube use. In his oral evidence, Dr J explained starkly the way in which it will become increasingly difficult to protect ST from those aspects as the body shuts down and systems slow. I have heard evidence that it is distressing as well as uncomfortable for patients who sometimes find the prolonged use of NG wears away at the site of entry to the nose.

Because ST’s communication difficulties are such as they are, ascertaining her wishes and feelings is not straightforward. I have already indicated the ways she has been able to communicate those. In the earlier part of the admission, she has gestured discomfort of the NG and, for a person whose movement is impaired, so focussed and repeated an action to dislodge the NG tube carries meaning.

I also recognise that there is clear indication that ST would wish to continue to be treated; this is to be read into ST tearing up a wrongly added DNR notice that she found had been applied to her records. When I consider how a return to her features in her wishes and feelings, and finds its place in the best interests balance, significantly South Wales has been her home for many years. Hearing BM passing on the stories ST had told him of her contribution to the war effort during the second world war, served as a reminder that ‘many years’ means close to a century. Going home, if she can, is consistent with her wishes she has expressed when she was clearly able to, as well as in more recent times, when she has been able to express herself much less clearly. Latterly, I recognise, when the Litigation Friend visited, she could not express any view at all.

A discharge home is not an option without risk. Neither is it one necessarily available to her indefinitely. She can be discharged only if the NG tube is removed. Getting ST home is also important to MB, but there are a number of issues to consider when assessing if a return home is in her best interests. Prominently amongst these is that she will need to undertake the journey to be transported home. As late as 6 May 2026, following the meeting, Dr J and Dr D were of the combined view that she may survive, but this cannot be guaranteed. The risk is characterised as ‘low’ by Dr D. It is seldom the case that a medical professional categorises a risk as completely absent. Both doctors considered a move home was viable, with the caveat that it would be important to take a different view if she declined suddenly.

Second, I have to consider whether a suitable care package can be put in place, and this depends on the willingness of the family to provide care themselves. MB could not have been clearer that he will provide care. BM made it clear he and his wife would not walk away and leave ST without their help. After some debate, I did not permit Ms Scott to cross-examine those two family members as to what they would commit to in terms of care. It seems to me that it is not right or helpful to be securing commitment of that sort of family contribution from the witness box. It is a matter for discussion outside the court room, not inside. I recognise that Ms Scott wished to ask those questions to give a more rounded background against which the Litigation Friend could reach her concluded view, but nevertheless, it is accepted by the Health Board that whatever the support from the family, there will family provision within the home to supplement a care package that will involve visits within working days. Overnight the family would care themselves.

It is also necessary to evaluate the question of risk, if the family (particularly MB) are willing to follow SALT advice in relation to feeding, fluids and oral medication if tolerated. I accept MB’s evidence that he will do so and cooperate in meeting with the SALT team, and it is notable to me that his acceptance of the Health Board advice is instrumental in the plan.

I have, in hearing MB give evidence to me, been left with no doubt at all that MB will do everything he can to help and assist his mother, even though he knows that others regard her as not having a significant prospect of improvement. As I consider those real risks, I balance them against the considerable benefits of a return home, if this can be achieved, and the express wishes I have heard.

On an analysis of the other aspects of the burdens and benefits and wishes and feelings, I come to the question of religious belief. In this case, the question for ST of her Roman Catholic faith carries very significant weight into the balance. ST carries very strong convictions and has lived her life alongside those. Her own approach to morality in respect of the sanctity of life is clear. She has been opposed to abortion. She has, I accept, expressed strong opposition to the introduction of assisted dying, she would regard that as suicide. I accept that the beliefs she holds are important components of the analysis. She has continued whilst in hospital to receive communion and to be visited by the Priest of her parish. Arrangements have been made for ST to receive the Sacrament of Extreme Unction - it would be matter of real significance to her were she not to die in a state of Grace.

I accept, in large part borne from her religious faith, that her clear wishes were that all possible steps should be taken to prolong her life. This falls to be considered alongside other wishes and feelings. It is an important factor but capable of displacement by other factors. There are no hierarchy in the factors, and I am required to take a holistic welfare evaluation of ST as an individual. As to her wishes and feelings as far as these can be established, I have weighed these in the balance as discussed.

I also weigh in the balance the evidence the treating clinicians. I have considered the benefits of treatments against the burdens, including the risks of a transit home. Those risks are now low, but these risks are likely to increase if there is a wait. On the trajectory of ST’s health, the increased risk that she would die during the process of being transported home means the window for a return home at a later date is closing. A return home is consistent with her clearly expressed wishes to end her days at home. The closing of that window carries with it a prospect of the impossibility of giving effect to those wishes. Against that therefore there is the option that ST remains in hospital, with the NG tube in place. I accept the medical evidence that there is no hope of recovery. I have already accepted the evidence that whilst the NG tube is delivering nutrition, ST is in decline and is not improving. The option of her remaining in hospital will ultimately mean that that is where she ends her days. That is not in her best interests when it could be otherwise.

Drawing all of the different aspects together, I am satisfied that the application by the Health Board, supported by the Litigation Friend, is in ST’s best interests, and this best supports her personal autonomy. Notwithstanding her strength of view in respect of having all done to prolong her life, the proposed treatment and care best promotes her welfare.

I recognise that this is contrary to the strong views of her family and MB. I also recognise that MB sees himself, and not Ms Scott instructed by the Litigation Friend, as the advocate for ST at this hearing. Whilst he is wrong about that, he should know that to the extent that he feels he is advocating for her, he could not have said or done more for her.

MB and his sister have said that their opposition to the removal of the NG tube is large part grounded in the fact that it will likely hasten the time of their mother’s death. These decisions in their view are not for them or the doctors but for God. They should also know that the responsibility for this decision lies not with them but with me. I very much hope that ST can return home, and to have, for however long her natural life may be, the love, care, familiarity and comfort of her home and her family.

For those reasons I will make the declarations sought and will invite counsel to draw the order.