No "clinical decision" exemption from best interests

The Court of Appeal in Townsend v Epsom and St Helier University Hospitals NHS Trust [2026] EWCA Civ 195 allowed an appeal against the refusal of permission to bring Court of Protection proceedings concerning the withdrawal of life-saving dialysis from Robert Barnor, a 68-year-old man with irreversible brain damage and no prospect of regaining consciousness. 

The Trust had made a “clinical decision” that it was not appropriate to provide Mr Barnor with further dialysis. It did not apply to the Court of Protection in relation to this decision because it took the view that there was no best interests decision for the Court to make – continued dialysis was clinically inappropriate. The Court of Protection also refused an application by Mr Barnor’s daughter in respect of his medical treatment, holding that the medical decision-making process had concluded dialysis would no longer be offered and there was no option for the Court of Protection to consider. 

However, the Court of Appeal firmly rejected this approach, holding that there is no carve-out for "clinical decisions" – any decision about the care and treatment of a mentally incapacitated adult, including the withdrawal of life-sustaining treatment, must be made in the patient's best interests, and a hospital cannot pre-empt court proceedings by unilaterally withholding treatment on clinical grounds. 

Who will this affect?

The ruling has significant implications for healthcare providers and commissioners, as well as families of incapacitated patients, across England and Wales.

It is likely to result in an increase in Court of Protection applications, and healthcare providers will need to swiftly seek legal advice in the event of a disagreement between clinical teams and families as to the treatment of incapacitated adults – even where a particular treatment is not considered clinically appropriate. Our Court of Protection specialist team can advise and represent healthcare providers and commissioners in all manner of court proceedings.

Background

Mr Barnor collapsed without warning in April 2025 after suffering a stroke, followed by a series of further strokes which caused extensive and irreversible brain damage. He never recovered consciousness, and repeated specialist neurological assessments consistently found no meaningful neurological recovery. The unanimous clinical view was that he was in a state of prolonged disorder of consciousness (PDOC) with no prospect of recovery. 

Mr Barnor’s family, however, disagreed and saw signs of improvement in his condition. His eldest daughter, Mrs Townsend, reported signs of awareness and responsiveness. They wanted treatment to continue.

Following his collapse, Mr Barnor developed severe acute kidney injury requiring dialysis, which was administered via a central line twice a week.

In October 2025, the hospital obtained second opinions from three independent specialists, all of whom concluded that further active treatment was futile and clinically inappropriate. 

In January 2026, the central line through which dialysis was administered became blocked. Given Mr Barnor’s irreversible terminal neurological condition, which dialysis could not improve, and the increasing burdens and harms of continued dialysis, the clinical team determined that no further dialysis would be carried out and no new line inserted. 

The Trust confirmed this position to the family's solicitors, stating that it had made a clinical decision not to provide further long-term dialysis. Without dialysis it was anticipated Mr Barnor would die within a matter of days.

The Trust maintained that there was no best interests decision available to be determined by the Court and that it would therefore be inappropriate for the Trust to make an application to the Court of Protection. However, Mrs Townsend then made an application to the Court of Protection seeking permission to apply for declarations and orders relating to the withdrawal of her father’s treatment.

The Court of Protection decision

Mrs Justice Theis, Vice-President of the Court of Protection, refused Mrs Townsend's application for permission to bring proceedings. The medical decision-making process had concluded that dialysis would no longer be offered by the clinical treating team and there was therefore no option for the Court of Protection to consider. 

Mrs Townsend appealed against this decision. 

The grounds of appeal

The following grounds of appeal were put forward on behalf of Mrs Townsend:

1. By refusing to grant leave to bring proceedings pursuant to s.50 Mental Capacity Act 2005 (MCA), the judge failed to comply with:
   1. The State's positive Article 2 obligation to ensure a patient's access to the Court to resolve a dispute over the provision of life-sustaining treatment, and
   2. The common law requirement to ensure that disputes over the provision of life-sustaining treatment are brought before and resolved by the Court.
2. The judge erred in not granting leave under s.50 MCA in circumstances where the application was made on behalf of the patient himself.
3. The judge erred in holding that a "clinical decision" to withhold life sustaining medical treatment is not subject to best interests considerations and hence is not subject to the supervision of the Courts.
4. In the alternative, if there is a legally significant distinction between clinical and best interests decision-making, such a distinction must be based upon objective criteria and in the event of a dispute the Court must examine whether these criteria are met: in the circumstances the judge erred in not granting permission so that the court could establish whether such criteria were met.

The Trust argued that treatment decision-making involves three distinct stages: 

1. A decision by the clinician, based on their specialist knowledge and expertise, whether to offer any or a particular treatment as being clinically appropriate;
2. The clinician discussing the treatment options with the patient to determine whether they have capacity to make a decision regarding the treatment options;
3. Where a treatment is offered, whether that treatment is provided to the patient. A capacitous patient can make their own decision to consent to its provision whereas, for a patient lacking capacity, that decision has to be made in their best interests, taking into account their wider circumstances. 

The Trust submitted that these distinct stages of treatment decision-making are well-established by case law, including R (Burke) v General Medical Council (Official Solicitor and other intervening) [2005] EWCA Civ 1003. 

Further, the Trust argued that a doctor cannot be compelled, including by the Court, to provide treatment that they consider to be clinically inappropriate. This principle has been recognised in several cases, including An NHS Trust & Ors v Y [2018] UKSC 46, N v ACCG and others [2017] UKSC 22, and most recently in R v Spectrum Community Health CIC ex parte JJ [2023] EWCA Civ 885. 

The Trust’s position was that the processes of clinical decision-making (determining what treatment is available to the patient) and the provision of available treatment to the patient are distinct, and that the clinical decision-making process is a prior process to the provision of treatment, including life-sustaining treatment. As a clinical decision had been taken in Mr Barnor’s case, Mrs Justice Theis was right to conclude that the Court of Protection was not the correct forum to determine the lawfulness of that clinical decision.

The Official Solicitor agreed with the Trust’s position.

The Court of Appeal's decision and analysis

The Court of Appeal allowed Mrs Townsend’s appeal on ground three outlined above (highlighted). 

The Mental Capacity Act (MCA) and Code of Practice

The Court of Appeal said that the basic principles to be applied under the MCA are set out in section 1, and include under section 1(4) the cardinal principle that:

The MCA Code of Practice reiterates the best interests principle, which must be adhered to whether the person making the decision is a family carer, a healthcare professional, or a court-appointed deputy, and whether the decision is a minor issue, such as what to wear, or a major issue, such as whether to provide particular healthcare.

The Code also gives specific guidance as to how to establish P's best interests when making decisions about life-sustaining treatment and provides that:

 “[…] before deciding to withdraw or withhold life-sustaining treatment, the decision-maker must consider the range of treatment options available to work out what would be in the person's best interests […] where there is any doubt about the patient's best interests, an application should be made to the Court of Protection [...]”

Key cases

The Court of Appeal distinguished Burke, relied upon by the Trust, as it concerned an adult with capacity and pre-dated the MCA.

The Court relied heavily on the case of Aintree University Hospital NHS Foundation Trust v James [2013] UKSC 67, which confirmed that doctors have to evaluate treatment options (including decisions about life-sustaining treatment) by reference to the patient's best interests. In considering best interests, decision-makers must look at the patient's welfare in the widest sense, not just medical but social and psychological; they must consider the nature of the medical treatment, what it involves and its prospects of success and the likely outcome. They must try to put themselves in the place of the individual patient and ask what his attitude to the treatment is likely to be, and consult others who are looking after him or interested in his welfare. 

The Court referred to An NHS Trust v Y [2018] UKSC 46, in which the Supreme Court confirmed it is not necessary for all cases involving withdrawal of life-sustaining treatment to be referred to court where all parties agree. However, if the way forward is finely balanced, there is a difference of medical opinion, or there is a lack of agreement from those interested in the patient's welfare, a court application can and should be made. This position was reiterated in Hayden J’s Guidance on Applications Relating to Medical Treatment (17 January 2020).

The Court of Appeal expressly declined to follow the recent case of Re AA (Withdrawal of Life-Sustaining Treatment: No Best Interests Decision) [2024] EWCOP 39, in which Henke J had declined to make a best interests decision on the basis that there was only one available treatment option, and therefore the court had no choice to make. That approach was held to be at odds with the established principles and practice.

Outcome and the five key principles

The Court held that any decision about the care and treatment of a mentally incapacitated adult, including the withdrawal of life-sustaining treatment, must be taken in the patient's best interests – and that there is no carve-out for "clinical decisions".

The Court distilled five key principles from the existing case law and professional guidance:

1. All decisions about incapacitated adults, including clinical decisions, have to be made in the patient's best interests, taking into account all relevant circumstances and taking the steps identified in s.4 of the MCA.
2. If all parties – including family members, the treating team and, if obtained, a second opinion – are in agreement that it is not in the patient's best interests to continue life-sustaining treatment, then this can be withdrawn without application to the court.
3. If, at the end of the clinical decision-making process, there is disagreement between any of the parties that cannot be resolved by discussion and/or mediation, then the matter should be referred to the Court of Protection.
4. If a court application is required, the NHS commissioning body with overall responsibility for the patient should bring and fund the application.
5. In exercising its powers to make declarations and orders about the patient's best interests, the Court of Protection cannot compel a doctor to give a treatment that he or she considers clinically inappropriate.

Key takeaways

This ruling has real practical consequences for healthcare providers and commissioners. The Court said that the above five principles apply to “all decisions” about incapacitated adults, therefore it seems that treatment options for such patients cannot be withheld or withdrawn on clinical grounds – rather, these need to be considered within the best interests framework.

We therefore anticipate an increase in Court of Protection proceedings (including out of hours), albeit there was a suggestion from the Court that an “abbreviated process” could be used where clinicians do not consider certain treatment options to be clinically appropriate. What that process will look like in practice however is not clear at this point.

The Court did stress that a Court cannot compel doctors to provide treatment they consider clinically inappropriate and in many, perhaps most, cases the Court will conclude that it is not in P’s best interests. However, what if the Court does not agree with the clinicians and declares that treatment should be provided, but the clinicians are not willing to? 

For clinicians

Clinicians will need to clearly explain and document which treatment options are available and, where options are not considered clinically appropriate, set out full and cogent reasons as to why that is the case. Proactive, thoughtful and documented engagement with families remains essential.

It would be sensible for healthcare providers to review the mediation provision within their hospitals, as resolving disputes internally will be far more cost effective than going through the Court of Protection. Where there is a dispute about whether life sustaining treatment should be withdrawn or withheld from an incapacitated adult and this cannot be resolved, urgent legal advice should be sought as an application to the Court of Protection is likely to be required.

For NHS commissioning bodies

NHS commissioning bodies also need to be aware that the Court considers it is their responsibility to bring and fund court applications. Close collaboration with providers will therefore be required in cases where this is a dispute over treatment. Early legal advice, and where necessary early court involvement, remains the safest course where families and clinicians are not aligned.

Final thoughts

Lastly, the Court noted that there are plainly arguments to be made for a different approach to these cases, but that any change can only come about after a proper process of careful assessment and consultation, and may be incorporated in the revised Code of Practice which is anticipated shortly. Until then, all decisions must be managed in accordance with the Mental Capacity Act and the procedure specified above.

This judgment seems in parts an unusual interpretation of the previous case law and we have concerns as to how this interpretation of the legal framework is workable on the ground at a time when the healthcare system is already under significant pressure. We await confirmation as to whether this judgment is likely to be appealed and will keep you informed.