Artificial Nutrition and the Court of Protection: The Questions a Dietitian Should Be Answering

It would be easy to file this one as a capacity case for Trust legal teams. Read the reasoning and it is a nutrition case. The court's conclusion rested on absorption, tolerance, refeeding risk and the burden of a feeding route, and on a finding that the patient was dying from her neurological condition rather than from lack of nutrition. Worth noting at the outset: no dietitian gave evidence in this case. The clinical evidence came from two consultant geriatricians and a second opinion in stroke medicine. The questions the court had to answer were nutritional; the expertise in front of it was not. That gap is the point of this piece.

The case

Barking, Havering and Redbridge University Hospitals NHS Trust v AS and Anor [2026] EWCOP 15 (T3) concerned a woman referred to as AS, who sustained a massive stroke in September 2025 and was left aphasic, bedbound and with very severely impaired swallowing. A nasogastric (NG) tube inserted during that admission was poorly tolerated, causing repeated vomiting and regurgitation, and was removed in October. On 5 December 2025, after a readmission, she declined a further NG tube in the presence of a doctor and her son.

By late February 2026 her oral intake had fallen to a few spoonfuls a day. Her weight had gone from 50.3 kg in November 2025 to 36.9 kg in March 2026. She was assessed as lacking capacity. The clinical team concluded that neither NG nor PEG feeding was in her best interests and proposed continued risk feeding with a move to palliative care. Her family opposed the application, relying on an Advance Statement she had signed in June 2025, before the stroke, asking for all treatment necessary to prolong her life, including by artificial means.

What the court decided

Mr Justice Peel applied section 4 of the Mental Capacity Act 2005 and the best interests framework set out in Aintree University Hospitals NHS Trust v James [2013] UKSC 67, weighing AS's welfare in the widest sense: medical, emotional and social.

The Advance Statement was a relevant expression of AS's wishes and beliefs, and the court treated it as such. It was not determinative, and it is not the same instrument as a legally binding Advance Decision to refuse treatment. Alongside it the court weighed what AS had done after her stroke. The circumstances of the December refusal were never explored in evidence, so the judge applied the statutory presumption of capacity in section 1(2), the clinicians having considered her capacitous and nothing having been offered to the contrary. Both the written statement and the later refusal went into the balance. The judgment ranks neither above the other.

What decided the case was burden against benefit. The court accepted that re-inserting a tube would be a materially different proposition from the one tried in September 2025. The gut was by then almost certainly swollen, so absorption and therefore nutritional benefit would be significantly reduced. Diarrhoea was a likely consequence, bringing repositioning and pressure sore risk to a patient whose skin was already broken. Refeeding syndrome was likely and would have required daily intravenous supplementation, adding fluid to a patient already oedematous. A hiatus hernia made reflux more likely, and aspiration and secretions were live risks. Intravenous fluids were leaking into tissue rather than circulating. A tube would also have kept AS in hospital rather than allowing a discharge home.

The court found those burdens intolerable for a patient of AS's frailty, in exchange for at best a very short prolongation of life, and authorised the Trust's plan.

The finding that matters most to a dietitian

The family's case was that the weight loss reflected neglect by the treating staff, and that AS was deteriorating because she was not being fed rather than because of her neurological injury. The court rejected it, and recorded that the clinicians had treated AS with the utmost care and dedication, and that family and clinicians alike had been motivated throughout by her best interests. But put like that, it is a nutritional question, and the court answered it as one: her life-limiting condition was the result of her neurological presentation, not lack of nutrition. By the hearing her life expectancy was measured in weeks.

That distinction, between a patient who is dying and incidentally eating poorly, and a patient who is deteriorating because nutrition has been mismanaged, is the single question a dietetic expert is asked to address in almost every artificial nutrition case. It is worth noticing how the court got to its answer: not from the weight chart alone, but from evidence about absorption, tolerance, refeeding risk and what a tube would actually have achieved in this particular gut.

Three points for practice

First, the quality of the contemporaneous record is what gives a refusal evidential weight later, and this case shows it from the thin end rather than the thick. AS's December refusal counted because the presumption of capacity held: the clinicians thought she had capacity and nobody put evidence the other way. The circumstances were never examined. Had anyone challenged capacity at that moment, the record would not have carried the weight it did. If a patient declines a feeding route in front of you, record what was refused, when, in whose presence, in what words, and what appeared to be understood. A note that blurs reluctance with a considered refusal will not survive the same scrutiny.

Second, an Advance Statement is not an Advance Decision, and the two are conflated in case notes and expert reports alike. An Advance Statement is a relevant written statement made with capacity, falling within section 4(6)(a), and it guides a best interests assessment. An Advance Decision to refuse treatment sits under sections 24 to 26 and binds if valid and applicable, and where it concerns life-sustaining treatment it must be in writing, signed, witnessed, and contain an express statement that it applies even if life is at risk. There is a further point, and it is the one that disposes of the argument made here: an Advance Decision can only refuse. No instrument compels a clinician to provide treatment that is not clinically indicated. AS's statement asked for life-prolonging treatment by artificial means, so it could never have bound anyone however carefully it had been drafted.

Third, this was a best interests decision, and the dietetic lane is worth stating precisely. Nutritional and hydration requirements, adequacy and route of intake, tolerance of a route and its nutritional consequences, absorption, refeeding risk and its management, and the trajectory of weight and nutritional status are the dietitian's territory. So is the question the family raised here and the court answered: whether decline is attributable to disease progression or to under-feeding. Overall prognosis and life expectancy are not, and in this case they came from the treating geriatrician and a second opinion in stroke medicine. Capacity is decision-specific and time-specific, so a dietitian who is the decision maker for a nutrition-related decision may properly assess capacity for that decision. What is out of lane is a dietetic expert offering a retrospective opinion on capacity in litigation. Case managers instructing a dietetic expert should expect a report that answers the nutritional questions the court needs answered, and that does not stray into findings reserved to others.

The standard of proof, stated correctly

Court of Protection proceedings of this kind are civil proceedings. Capacity is determined on the balance of probabilities, and that is statutory: section 2(4) of the Mental Capacity Act 2005. Facts are found to the same standard. Best interests is a different exercise: an evaluative determination made on the whole picture, not a finding to which a burden or standard of proof attaches. The presumption of capacity in section 1(2) is different again, a starting point that holds until displaced by evidence, which is precisely how it operated in this case. These are worth keeping separate, because the same audience that reads this also instructs at times on criminal matters, including regulatory prosecutions, where the standard is different again.

Where this sits for RMD

Cases of this kind turn on questions a dietitian is better placed to answer than anyone else in the room: what a feeding route would actually deliver in a particular gut, what it would cost the patient to tolerate it, and whether decline is nutritional or neurological. If you are weighing whether a dietetic opinion would help a Court of Protection matter, or need a case-management dietitian who understands how these decisions get made, it is worth a conversation before the next hearing date rather than after.

Rick Miller BSc., MSc., RD

Consultant Registered Dietitian

HCPC DT25651