Cwm Taf Morgannwg University Health Board v RW & Anor [2026] EWCOP 10 (T3) provides a snapshot of the realities of navigating health and welfare decision-making of a kind that rarely makes it to court. In short compass, it concerns a failure by a hospital to consult with an attorney regarding decision-making about life-sustaining treatment. In the context of a considerable focus on understanding about the MCA in Parliament at the moment, it is important to emphasise that failures to apply the Act are not uncommon, including (here) failures to comply with a clear statutory duty to consult. What is uncommon is that, in this case, the attorney was a professional attorney – an extremely experienced solicitor – who sought to move heaven and earth to correct the situation. The full story is complicated, difficult, and is likely to be the subject of detailed examination in an inquest. For present purposes, what is of importance is both that the Health Board acknowledged its unlawful behaviour in failing to comply with the MCA 2005 by consulting with the attorney, and that it was penalised in costs for doing so on the basis that it was only the bringing of an application by the attorney which led to changes in the man’s care and treatment.
It is very much to be hoped that the results of this case will be that this Health Board hews very much closer to the law (and, it appears, its own policy); is it too aspirational to hope that other health bodies will recognise the case as a ‘near miss,’ so as to carry out their own work in this regard?
