Key takeaways
Best interests always prevail
All decisions in connection with incapacitous patients over the age of 18, including clinical decisions, must be made in the patient’s best interests.
Court referral required for disputes
Even where clinicians consider there to be only one clinically appropriate treatment option, disputes must be referred to the Court of Protection.
Courts cannot force treatment
The Court cannot compel doctors to provide treatment that they consider to be clinically inappropriate.
The Court of Appeal in ‘Townsend v Epsom and St Helier University Hospitals NHS Trust [2026] EWCA Civ 195’ (Townsend) has confirmed that any decision in connection with the care and treatment of adult patients who are assessed as incapacitous, including the withdrawal of life-sustaining treatment, must be taken in the patient’s best interests – ruling there is no “carve out” for clinical decisions. The judgment has important implications for healthcare providers and commissioners.
Summary of the case
Mr Barnor, 68, sustained extensive and irreversible brain damage after suffering from strokes in April 2025. He had pre-existing kidney disease and developed severe acute kidney injury requiring life-sustaining renal replacement therapy and dialysis.
Following blockage of his central line, treating doctors made a clinical decision that he was ‘not suitable’ for long-term dialysis, that no dialysis access would be carried out and no new tunnelled line inserted – a position supported by three independent second opinions. Mr Barnor’s family disagreed with this. The Trust, having taken the view that this was a clinical vs. a best interests decision, did not seek the Court of Protection’s involvement. Mr Barnor’s family having disagreed, themselves then issued an application to get the Court of Protection involved.
Court of Protection decision
Their application came before Theis J, Vice President of the Court of Protection (the Judge), who refused permission for the application to proceed on the basis that the decision at the heart of the application was a ‘clinical’ one, no further (other) treatment options were available, and there was, therefore, no best interests decision for the Court to make or determine.
Mr Barnor’s family appealed this decision on grounds that the Judge had erred in treating a ‘clinical decision’ to withhold life sustaining treatment as falling outside best interests considerations, and therefore outside the Court’s supervisory jurisdiction.
Court of Appeal (CoA) decision and rationale
The Trust in resisting the appeal, relied on established case law including ‘R (Burke) v General Medical Council (Official Solicitor and other intervening) [2005] EWCA Civ 1003’, ‘Aintree University Hospital NHS Foundation Trust v James [2013] UKSC 67’ and ‘N v ACCG and others [2017] UKSC 22’. The Trust submitted that decision making involves three distinct stages: (a) identification by clinicians of the clinically available options; (b) assessment of capacity and consent; and (c) where the patient lacks capacity, identification of the option in the patient’s best interests. While the CoA accepted that structure, it rejected the Trust’s reliance on earlier authorities as justifying a “clinical decision” exception.
The CoA distinguished Burke v GMC, which concerned a capacitous adult and predated the Mental Capacity Act 2005 (MCA), emphasising the continuing importance of the Supreme Court’s reasoning in Aintree, that whilst doctors cannot be compelled to provide a particular treatment, any decision to treat or not treat must be lawful and grounded in a broad best interests assessment, including consideration of the patient’s likely wishes, values and feelings.
The CoA referred to ‘N v ACCG’, reaffirming that decision‑makers may only choose between treatment options genuinely available. However, crucially, it is for the Court, rather than the parties, to determine its (the Court’s) jurisdiction and whether there is a best interests decision to be made. As per ‘An NHS Trust & Ors v Y & Anor [2018] UKSC 46’, Supreme Court decision, where there is disagreement or a potential conflict of interest about life‑sustaining treatment, an application to the Court of Protection must be made.
The CoA also reviewed ‘GUP v EUP [2024] EWCOP 3’ and ‘Re AA (Withdrawal of Life‑Sustaining Treatment) [2024] EWCOP 39’ concluding that the approach in Re AA was not consistent with MCA established principles, the Code of Practice or professional guidance. Even where clinicians consider only one treatment option to be realistically available, the decision to withhold treatment for a person lacking capacity remains a best interests decision which may fall within the Court’s jurisdiction.
The MCA and professional guidance
The CoA further reiterated the MCA’s core principle that any act or decision for a person who lacks capacity must be taken in that person’s best interests (s1(4) MCA 2005). The MCA Code of Practice’s guidance on life sustaining treatment requires clinicians to apply the best interests checklist and to refer unresolved disputes to the Court of Protection. The CoA additionally referred to professional guidance for clinicians, which similarly makes clear that after the clinical decision making process has been undertaken, any unresolved disagreement must be referred to the Court of Protection.
The decision
The CoA held that all decisions concerning incapacitous adults, including clinical decisions, must be made in that individual’s best interests. Where families and clinicians agree that withdrawal of life‑sustaining treatment is in the patient’s best interests, there is no requirement to apply to or involve the Court of Protection. Where there is disagreement, an application can and should be made. If an application is required, the COA held that it is the NHS commissioning body with overall responsibility that should bring and fund the application. That said, the Court cannot compel clinicians to provide treatment they consider to be clinically inappropriate.
What does this mean in practice?
Although in ‘Towsend’, the application concerned the withholding of life sustaining treatment, the CoA made clear that the MCA principles apply to “all decisions ... including clinical decisions”. Disputes where more than one clinically available option exists but agreement as to which option is in the patient’s best interest cannot be reached come before the Court routinely. The material shift comes in relation to those cases where clinicians consider only one option to be clinically available and alternative options are not offered. ‘Townsend’ suggests that healthcare providers cannot rely on a clinical decision label to avoid court oversight where there is disagreement which cannot be resolved locally.
However, there remains space for legitimate clinical judgement. Clinicians determine which options are clinically possible, appropriate or safe. Once options are identified, any decision to provide, withhold or withdraw treatment for a person who lacks capacity is a best interests decision and, if disputed, must be referred to the Court. The Court cannot compel a doctor to provide treatment but in the unlikely event that a Court found treatment to be in a patient’s best interests which the treating team were not willing to provide, the clinical team would need, first, to carefully consider the Court’s reasoning for reaching that decision. If, having done so, the clinical view remains resolute and the treating team do not feel able to provide the treatment declared by the Court to be in the patient’s best interests, attempts would need to be made to identify an alternative and willing clinical team. If those attempts are fruitless then in theory the clinical team would be left in a situation where they were unable to give effect to a Court declaration as to best interests, which would – without doubt – be difficult for all involved.
One question that has been raised is whether DNACPR decisions for an incapacitous patient need now to be approached differently in light of ‘Townsend’. BMA guidance currently confirms that where CPR has no realistic chance of success, DNACPR is a clinical decision and does not require patient or family consent, although the reasons should still be explained sensitively. However, the guidance suggests where CPR has a realistic prospect of success, the decision is not purely clinical and must be made on a best interests basis.
On the face of it, ‘Townsend’ would apply to DNACPR decisions just as it does to other clinical decisions, and should be approached through a best interests lens vs a purely clinical decision, whether or not this has a realistic chance of success. This requires careful navigation in relation to the language used, particularly with families who may have been able to accept a clinical decision to put a DNACPR in place but would be reluctant to express their agreement to it when framed as a best interests decision. We are already seeing urgent applications in relation to DNACPR’s post ‘Townsend’ being made to the Court.
Practical points
Early escalation to legal teams – adoption of a low threshold for involving in-house legal teams where there is likely to be dispute is recommended. Early discussion with your legal team can help clarify the scope of the available treatment, alternative and willing providers if any, and whether all steps, including obtaining second opinions, have or are being taken, which will mitigate against escalation.
Clear documentation and communication – recording options that are and are not clinically available with reasons is key in helping clinical colleagues, families and the court if involved, as to the decision-making process and the rationale for the decisions made. As is maintaining open dialogue with families including whether mediation would be appropriate and assist in de-escalating differences of opinion and viewpoints.
Advance care planning – encouraging early and advance care planning at a time when patients are assessed as being capacitous will assist in ensuring that a patient’s wishes, feelings, values and preferences are clearly documented and that there is clarity for the care and treatment that ought to be provided, in the event that capacity is subsequently lost.
Overall, the substance of conversations with families does not change and clinicians should continue to explain clinical reasoning and proposed plans as they ordinarily do. What changes is that healthcare providers can no longer rely on clinical decision making as a basis for avoiding Court oversight where a dispute arises.
An application for permission to appeal has been lodged with the Supreme Court and we will report on any further developments, but for now clinicians should seek early legal input wherever agreement may be difficult to achieve. Hill Dickinson has extensive experience in this area and can assist with providing preliminary advice and making applications where required.
Get in touch
Find out how our leading expertise in the Mental Capacity Act and deprivation of liberty can support your organisation.
With market recognised specialists who have shaped national case law and policy, we help clients navigate complex MCA and DoLS issues with clarity, confidence and practical insight.
This article was co-authored by trainee Victoria Stuart.
