Nottingham University Hospitals NHS Foundation Trust v Indi Gregory & Ors

Where a court has authorised withdrawal of invasive treatment, a subsequent dispute about the location and timing of extubation concerns the implementation of that order. The governing question remains the patient’s best interests, rather than whether there has been a material change of circumstances sufficient to reopen the original findings. Any change in circumstances may nevertheless be relevant to the best-interests assessment. Clinical decisions about the safe and sustainable delivery of compassionate care remain for clinicians. Parents may choose between clinically appropriate options offered to them, but cannot require implementation of a clinically inappropriate option. Urgent decisions may be made on the existing evidence where delay would itself be contrary to the patient’s best interests and the treating clinicians are well placed to assess the risks.

The Trust applied in substance to implement and vary an existing care plan concerning Indi Gregory, following the court’s earlier authorisation of withdrawal of invasive treatment. The dispute concerned whether extubation and immediate palliative aftercare should occur at home, at a hospice, or in hospital. The parents sought home extubation and continuing care at home; the Guardian supported the Trust’s position.

The issue arose after earlier applications concerning treatment and a proposed transfer abroad had been refused, and after delay had increased the clinical complexity of extubation aftercare. The central questions were the applicable legal test, whether an adjournment and further expert evidence were required, and which setting was in Indi’s best interests.

1. Applicable test. The dispute concerned implementation of the substantive order authorising extubation, not a reopening of the findings about life-sustaining treatment. The applicable test was therefore the patient’s best interests. A material change of circumstances was not a precondition, although any such change was relevant to the assessment.
2. Evidence and urgency. The court considered the evidence in the round. It refused an adjournment for further evidence because delay would prolong Indi’s pain and suffering, the court already had substantial evidence, and the treating clinicians knew her condition and risks particularly well. Further expert evidence was unnecessary.
3. Best interests. The court accepted the clinicians’ evidence that Indi’s extubation aftercare involved complex medication, sedation withdrawal, feeding equipment, possible non-invasive ventilation and specialist nursing. Her deterioration and the delay since the original order materially increased the risks of home extubation and made a suitable community care package difficult or impossible to arrange. Home extubation was therefore contrary to her best interests.
4. Order. The care plan was amended. Extubation was authorised at the hospice, unless the parents elected hospital extubation, no earlier than 2pm on 9 November 2023. Thereafter, clinicians were entitled to determine the clinically available compassionate-care options. The parents could elect between options offered, but could not make the clinical decisions. The approach was consistent with R (Burke) v General Medical Council [2006] QB 273.

The judgment records that earlier orders authorising withdrawal of invasive treatment and refusing proposed alternative treatment had been upheld or left undisturbed when permission to appeal was refused by the Court of Appeal. A further application to the European Court of Human Rights was deemed inadmissible. This judgment determined the later implementation dispute at first instance.