In Royal Free NHS Foundation Trust v EF & Ors, the court considered EF’s mental capacity, his best interests and how to balance his rights under the European Convention on Human Rights - specifically the right to family life and the right to life - when deciding whether he should be moved to supported living to receive life‑sustaining medical treatment.
EF is a 44-year-old man with Down’s Syndrome and kidney failure. He requires dialysis treatment three times per week, and regular medication to manage his phosphate levels, but had a history of failing to attend or complete treatment sessions and take medication. The treatments were, therefore, inadequate, and EF was at a serious risk of further complications and sudden death.
EF lived in the care of his father (NN), who persistently failed to assist EF with obtaining his required treatments. NN had previously been made subject to a court order requiring him to secure EF’s attendance at the dialysis sessions and the administration of EF’s required medication. EF repeatedly didn't receive the necessary care.
Concerns were, therefore, raised as to whether EF’s living arrangements were compatible with the delivery of life-sustaining treatment to EF.
The Court of Protection (CoP) was asked to intervene.
Legal issues
Three questions were asked before the CoP.
- EF’s mental capacity
The CoP was asked to consider whether EF had mental capacity to make decisions as to his medical treatment and his residence. - EF’s best interests
If EF was assessed as lacking capacity, the CoP needed to consider if it was in EF’s best interests, under the Mental Capacity Act 2005, to be moved to supported living to secure adequate dialysis and medication. - Compatibility with convention rights
Finally, the CoP had to assess whether and to what extent any interference with both EF’s and NN’s Article 8 ECHR rights is justified and proportionate, requiring the balancing of the father-son relationship against the urgent need to protect EF from life-threatening harm.
The court’s decision
The CoP concluded that EF lacked capacity to make decisions in respect of his medical treatment and residence.
Although EF wished to remain with his father, his overarching wish was to stay alive. Supported living was the option most likely to ensure consistent access to dialysis, reduce the risk of EF’s sudden death and to improve the quality of his life, whilst promoting regular contact with NN.
On that basis, the CoP concluded that the separation from his father constituted a proportionate and just interference with EF’s and NN’s Article 8 rights, as the interference was necessary to protect EF’s Article 2 right to life. Furthermore, any deprivation of liberty of EF in the supported living placement was necessary and in the best interests of EF and keeping him alive.
The CoP was clear that all efforts should be made to secure EF a longer and better quality of life.
Commentary
This decision underscores the balance which the court must strike when an adult who lacks capacity is at a significant medical risk, which would be vastly reduced on their deprivation of liberty and the interference with their private and family life.
The court will continue to place weight on individuals’ Article 2 rights to life – and in this case, EF’s wish to live had to be balanced against his wish to remain with his father.
While the relationship between father and son was positive, the father was clearly unable to meet their stated commitments to support EF’s complex medical needs.
This case reinforces the court’s commitment to ensuring that vulnerable adults receive life-preserving care where needed, even when doing so intervenes with their ECHR rights.
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