The dilemma of futility versus faith in terminal care

The Court of Protection (CoP) faced the unprecedented question of where brainstem testing should take place when clinical opinion seemed to suggest that a person was brainstem dead. 

Facts:

DT, a 42-year-old woman, collapsed at Y airport in Country Z after feeling unwell during a long-haul flight in August 2025. Prior to 23 August 2025, DT was a healthy, vivacious, dynamic, and much-loved member of the X family and her wide circle of friends. DT never recovered consciousness after she was admitted to the hospital there and was then transferred by her family to a hospital in the UK in September 2025.

DT's condition remained static. She has a Glasgow Coma Score (GCS) of 3, with pupils fixed and non-responsive, and absence of all brainstem reflexes (gag, corneal, cough). Investigations, including EEG and MRI, have shown no convincing cerebral activity and indicate severe brainstem damage. The clinical team in London held the strong opinion that DT is effectively “brain dead” due to irreversible cessation of brain stem function, referring to this as a "collective professional opinion" and a "clinical assessment of death".

The UK clinicians wished to perform brainstem testing according to the Academy of Medical Royal Colleges’ 2025 Code of Practice to legally confirm death. DT's family profoundly disagreed with the testing being done in the UK, but instead insisted that such an investigation should have been carried out in Country W. The family, led by DT's older sister (YT), provided compelling evidence of DT's strong connection to Country W, including strong religious and cultural beliefs that require burial within a very short period following death, which necessitates the due process occurring in Country W. 

Decision: 

The CoP determined that it was in the best interests of DT to be transferred to Country W under the Mental Capacity Act (MCA) 2005. 

Until brainstem testing is performed according to the UK's 2025 Code of Practice and confirms the irreversible cessation of brain stem function, DT is not dead as a matter of law. Since DT lacked the capacity to make the decision herself, the Court's task was to determine where the test should be performed based on what was in her best interests, as mandated by Section 4 of the MCA 2005. The Judge weighed the factors supporting the transfer (DT's wishes and values) against the risks and objections raised by the Trust.

DT had previously stated she would want to be in Country W if something serious happened to her, and she acted on this wish in 2016 for other medical treatment. Transfer to Country W was necessary to fulfil her strong religious and cultural beliefs regarding death rituals, including the specific short timeframe required for burial. 

Implications:

The case reinforces the principle that a patient's past and present wishes, feelings, beliefs,  cultural and religious values (Section 4, MCA 2005) can outweigh serious clinical concerns, even risks to life, in a best interests determination. It confirms that the best interests test is holistic, encompassing not only medical factors (such as the futility of treatment) but also emotional, psychological, and spiritual needs, especially near the end of life. The need for a dignified, culturally appropriate burial ritual and being "home" with family were decisive factors.

The ruling challenges the weight of the "futility of treatment" argument when balanced against powerful non-medical factors. The Judge's point—that the Trust was willing to continue "futile" treatment post-diagnosis to facilitate transfer—significantly reduced the moral and ethical weight of that argument prior to diagnosis.