Judge criticises Royal Hospital for Neuro-Disability over delays in considering best interests and making applications to Court of Protection

The RHND is an independent charity that works closely with the NHS.

In NHS Kent & Medway Integrated Care Board v OQD & Anor [2026] EWCOP 23 (T3) (22 May 2026), Mrs Justice Lieven said the case was the fifth case in the Court of Protection at Tier Three (High Court) level raising “very similar concerns around the RHND and its approach to the withdrawal of CANH for patients in Prolonged Disorder of Consciousness (PDOC)”.

She said the evidence suggested there were “systemic issues at the RHND both as to the timeliness of addressing best interests, but also the way the task is being undertaken”.

The proceedings concerned OQD, who suffered a serious assault in 2013 resulting in hypoxic brain damage. He was admitted to RHND in 2014 and, according to the judgment, had remained in PDOC throughout his 12 years at the hospital, with no material neurological improvement.

Lieven J said there was “no doubt” OQD had received “excellent day to day care” from healthcare professionals at RHND and noted that “it must be in part due to the excellent nursing care at RHND that the longevity of some of these cases, including OQD, is so great”.

However, she said there had been a failure by both the ICB and the RHND to consider OQD’s best interests in a “timely and effective manner”.

The judge highlighted that in the earlier case of North West London Clinical Commissioning Group v GU [2021] (GU), Hayden J had warned against delays in best interests decision-making involving withdrawal of CANH.

In the present case, the hospital’s medical director, Dr Luttrell, apologised on behalf of the hospital in his first witness statement, noting that “between 2014 and November 2021 (when the GU judgment was handed down), whether continuing to receive CANH was in [OQD’s] best interests was not considered”.

Lieven J observed that OQD’s neurological condition and prognosis had remained unchanged and the conclusions now reached by clinicians - that continued CANH was not in his best interests - “must necessarily have been the case for many years”.

Concluding the case, she said: “The sequence of events, since GU, is deeply troubling. That the RHND takes a careful and sensitive approach to these emotionally difficult decisions is both understandable and commendable. I also appreciate that they have a large number of patients in PDOC (there were 70 relevant patients in the cohort being considered after GU and new patients will continue to arrive on a very regular basis).

“However, the striking absence of urgency which is apparent from OQD's chronology indicates a lack of focus on the patient's own best interests. Throughout those 4 and a half years OQD has been suffering burdens which have ultimately led to a unanimous view of professionals and the Court that CANH should be withdrawn. The RHND (and ICB)'s failure to address the issue timeously has led to the prolonging of these burdens, and the undermining of OQD's human dignity, as explained so eloquently by Hayden J.

“In my view, a significant issue for the RHND is its focus on the views of the family and on reaching consensus with the family on a decision. As Hayden J sets out in both JP and GU, the views of the family are sought primarily in order to illuminate what the P would have wished, not for their own sakes. There is a degree to which the RHND appears to have put the views of the family concerned above focusing on the best interests of the patient. This is plainly wrong.”

She continued: “I am also concerned about the lengthy and in my view misguided efforts to establish what OQD would have "wished" if he had been able to express a view. It goes without saying that P's wishes are a very important part of making a best interests decision under the Mental Capacity Act 2006. They must be given great weight and in many cases they will be determinative.”

Mrs Justice Lieven described the lengthy delays as “not possible to justify on the facts of this case”, adding that she intends to send the judgment to the Secretary of State for Health and the Chief Executive of NHS England.

A spokesperson on behalf of the hospital said: "The Royal Hospital for Neuro-disability acknowledges the Court of Protection judgment concerning our best interests decision-making processes.

"We recognise the seriousness of the issues raised. Following this case, the hospital is reviewing and strengthening its procedures for best interests decision-making, working closely with NHS partners, clinicians and families, and ensuring our processes meet our legal and regulatory obligations.

"Our focus remains on providing safe, compassionate and patient-centred care for all those in our care.

"We are unable to comment further on individual cases at this time."

Lottie Winson