The Supreme Court is due to hear the appeal in Townsend v Epsom and St Helier University Hospitals NHS Trust in January 2027.

This article examines the principles established by the Court of Appeal, their practical consequences for NHS bodies and commissioners, and illustrates those consequences through Cardiff and Vale University Health Board v ST [2026] EWCOP 44 (T3); a compelling example of Townsend being applied in practice.

Background: Facts of Townsend

Robert Barnor ("RB") was 68 years old when, in April 2025, he suffered a series of strokes causing extensive and irreversible brain damage, from which he never recovered consciousness.

RB also suffered from kidney disease, which developed into severe acute kidney injury requiring dialysis. Following a blockage to his central line, a clinical decision was reached that no further longterm dialysis would be carried out. Dialysis could not improve his condition, and there were increasing burdens and harms if dialysis continued. Without it, it was anticipated RB would die within a matter of days.

The Trust confirmed its decision to RB's family. It explained that it would not be making an application to the Court of Protection, because there was no best interests decision available to the Court. However, Mrs Townsend (RB's daughter) then brought an application to the court herself, seeking permission to apply for declarations and orders relating to the withdrawal of her father's treatment.

Mrs Justice Theis refused such permission, agreeing with the Trust that the clinical decision-making process had concluded that dialysis would no longer be offered. There was, therefore, no option for the Court of Protection to consider. Mrs Townsend appealed against this decision.

The Court of Appeal (Baker, Asplin and Newey LJJ) granted permission and allowed the appeal, handing down its full judgment on 3 March 2026.

Our previous article explored the Court of Appeal's decision, but in essence the Court found that Theis J was wrong to conclude that a "clinical decision" to withhold life sustaining medical treatment is not subject to best interests considerations and is not subject to the supervision of the Courts.

The Townsend principles

At paragraph 68 of his judgment, Baker LJ summarised the following governing principles, now widely referred to as the Townsend principles:

1. All decisions about incapacitated adults, including clinical decisions, must be made in the patient's best interests, taking into account all relevant circumstances and the steps identified in s.4 MCA.
2. If all parties are in agreement that it is not in the patient's best interests to continue life sustaining treatment, it can be withdrawn without application to the court.
3. If, at the end of the clinical decision-making process, there is disagreement that cannot be resolved by discussion or mediation, 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 it.
5. The Court of Protection cannot compel a doctor to provide treatment which that doctor considers to be clinically inappropriate.

Why the Supreme Court appeal matters

The Trust has been granted permission to appeal to the Supreme Court, with the hearing listed for 12 and 13 January 2027. The central question is whether there is an obligation on an NHS commissioning body to apply to the Court of Protection to resolve disputes about medical treatment (including life-sustaining treatment), where the treatment sought on behalf of an incapacitated patient is not being offered by the patient's treating clinicians because they have concluded that such treatment is clinically inappropriate.

The stakes are high: if the Court of Appeal decision is upheld, NHS bodies will continue to face a clear obligation to bring proceedings whenever there is a disagreement about treatment of an incapacitated adult, even if a treatment option is not considered clinically appropriate.

Townsend in practice: Cardiff and Vale University Health Board v ST [2026] EWCOP 44 (T3)

The facts

ST was a 98-year-old woman who, before her admission to hospital in December 2025, had been living relatively independently at home in South Wales with support from her son, MB. Her Catholic faith was an important part of her life.

On 16 December 2025, ST suffered a stroke, resulting in her requiring clinically assisted nutrition and hydration via a nasogastric ("NG") tube.

A best interests meeting was prompted by a dislodgment of the NG tube on the 12 February 2026. The clinical decision was to cease NG tube feeding, since ST's alertness and engagement was deteriorating, suggesting she may be entering the last weeks of her life. The consensus was that the NG tube was prolonging her death, rather than aiding recovery. ST appeared to find the NG tube uncomfortable and distressing (she had removed it on 10 or 11 occasions) and seemed to dislike the mitten she was required to wear to prevent her from removing it.

MB disagreed with the clinical view. He wanted ST to return home with continued NG feeding, believing she would improve within 4-6 weeks.

However, the clinicians were clear that NG feeding could not be safely managed at home for someone in ST's condition, owing to risks including blockage, aspiration and the need for clinical oversight on re-insertion. NG feeding at home was not therefore an option.

Nevertheless, given the disagreement about withdrawal of the NG tube, the Health Board made an application to the Court of Protection to determine ST's best interests.

The court hearing and the outcome

Mrs Justice Morgan granted declarations that ST lacked capacity to make decisions about her medical treatment and care, and that it was in her best interests to have the NG tube removed and be discharged home under a palliative care plan.

Notwithstanding ST's strong Catholic faith and her previously expressed wish that all possible steps should be taken to prolong her life, the court accepted the consensus clinical view that ST was declining and approaching the end of her life. There was clear evidence that ST disliked both the tube and the mitten, and MB's view that she was improving was not accepted. Further, continued NG feeding in hospital would likely mean ST died there, contrary to her expressed wish to end her days at home.

Would an application have been brought 'but for' Townsend?

This is the question that gives Cardiff v ST its particular significance.

Pre-Townsend, the Health Board might well have considered an application to the Court of Protection unnecessary: a return home with NG feeding was not clinically available to ST and so, arguably, there was no best interests decision for the court to determine. However, in light of the Townsend principles, an application was necessary in this case.

Conclusion

The Supreme Court hearing in January 2027 will be critical for everyone working in health and social care, since the Court will determine the boundary between what clinicians can decide alone and what must go before the Court of Protection. Currently, under the Townsend principles, there is no carve-out for clinical decisions – if there is a disagreement about treatment for a patient who lacks capacity, the NHS commissioning body must apply to the Court of Protection, even where clinicians consider a treatment option clinically inappropriate. Cardiff v ST shows what that looks like in practice.

Until the Supreme Court provides clarity, health and social care professionals should:

• Document everything: Record options, discussions, decisions, and the reasoning behind them. Clearly distinguish between what is clinically appropriate and what is in a patient's best interests.
• Involve families early: Meaningful conversations from the outset can prevent disputes from escalating.
• Seek agreement: Make every effort to involve families in treatment discussions and agree, where possible, which option is in the patient's best interests.
• Mediate and seek advice sooner: Where disagreements remain, seek to mediate early and lower the threshold for legal advice if mediation is not successful. Do not wait until a dispute is entrenched.
• Use multidisciplinary teams and second opinions: And do so early, not as a last resort.