The Court of Appeal in Townsend v Epsom & Helier University Hospitals NHS Trust [2026] EWCA Civ 195 has handed down a decision with very significant implications for all medical decision-making in relation to adults lacking capacity. In the context of an urgent appeal against a decision of the Vice-President, Theis J, Baker LJ (giving the lead judgment), set out at paragraph 68 a series of principles that he considered to be “clearly and consistently established by the 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, treating team and, if obtained, 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are in agreement that it is not in the patient’s best interests to continue life-sustaining treatment, then this can be withdrawn without application to the court.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 the doctor to give a treatment that he or she considers clinically inappropriate.
At paragraph 69, Baker LJ stated categorically his view 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. There is no carve out for “clinical decisions.”
He amplified his approach further thus:
74. If there is agreement between the family, clinicians and any experts asked to provide a second opinion that it is in the patient’s best interests for life-sustaining treatment to be withdrawn, there is no requirement for the matter to be referred to the Court of Protection: A NHS Trust v Y. If there is disagreement, “a court application can and should be made” (ibid paragraph 135) The NHS commissioning body responsible for the patient must apply to the Court. The hospital cannot pre-empt court proceedings by unilaterally withholding or withdrawing treatment on “clinical” grounds. A decision whether or not to withdraw treatment has to be a best interests decision.
75. It follows that, notwithstanding her great experience in this jurisdiction, I concluded that the Vice-President erred in deciding that permission to bring the proceedings should be refused because “the medical decision-making process has concluded that dialysis will no longer be offered” and that there was “no option for the Court of Protection to consider”. In argument, we were told that there are very few instances of permission being refused to bring an application under s.50. Counsel were unaware of any previous case in which permission to apply in respect of life-sustaining treatment had been refused. Although one can envisage circumstances in which repeated applications may amount to an abuse of process, it is difficult to think of any circumstances in which it would be appropriate to refuse an initial application for permission to bring such proceedings.
76. Once proceedings have been started, however, the judge will exercise their case management powers as the circumstances require. Many of these cases are very urgent and, as proposed by Lady Hale in N v ACCG in the context of a refusal to fund treatment, it is open to the Court to use its case management powers to adopt an abbreviated process. That again is a matter for the Court to determine, not the parties. In cases such as Mr Barnor’s, where the view of the treating team and the second opinion experts is that continuing treatment is clinically inappropriate, the Court will scrutinise the evidence to determine whether withdrawal or withholding treatment is in P’s best interests. In many, perhaps most, cases, the Court will conclude that it is not in P’s best interests for treatment to continue, and it may reach that conclusion swiftly. In no circumstances can the Court compel the doctors to provide treatment that they consider clinically inappropriate. But the decision is for the Court, not the clinicians.
77. It was for those reasons that I concluded that the appeal should be allowed and the order dismissing the application for permission to bring proceedings set aside.
Baker LJ, clearly aware of the wider issues at play, had these further observations to make at paragraph 86:
Finally, it is clear from the arguments advanced in this case, including those set out in Professor Turner-Stokes’ report quoted above, that there continue to be grave concerns amongst professionals about the procedure to be followed in these cases. I am aware that very substantial medical and legal resources are taken up by treating patients in PDOC. There are plainly arguments to be made for a different approach. But that can only come about after a proper process of careful assessment and consultation. It may be that this will be incorporated in the revised Code of Practice which is anticipated shortly. Until that happens, these cases must be conducted and managed in accordance with the MCA and procedure specified in case law and existing guidance.
Mr Barnor, the patient the subject of the proceedings, died before the best interests hearing that the Court of Appeal considered to be necessary.
Comment
At present it is unclear whether this decision will be subject to appeal. The observations of Baker LJ at paragraph 68 are striking, in particular paragraph 68(1). which, on their face, applies to all forms of decision-making – including, for instance, decisions about funding cancer drugs. They do sit at uncomfortable odds with the decision of the Supreme Court in ACCG, which made very clear that those lacking decision-making capacity should not get less, but cannot through the prism of best interests demand more, than those with decision-making capacity. The judgment also do not refer to the decision of the Court of Appeal in AVS v A NHS Foundation Trust & Anor [2011] EWCA Civ 7 which is to very different effect; or to the very recent decision of the Strasbourg court in Medmoune v France, which retained and emphasised a very clear space for clinical discretion in the context of decision-making relating to those with impaired decision-making capacity.
The suggestion, at paragraph 86, that it is possible for a different approach to be taken through the Code of Practice is, with respect, a difficult one. The Supreme Court in NHS Trust v Y made clear that a Code cannot create the law as opposed to reflecting it; the court is therefore in the driving seat in terms of the interpretation of the Mental Capacity Act 2005. The almost literally million dollar question is therefore whether that interpretation is correct.
