Townsend v Epsom and St Helier University Hospitals NHS Trust [2026] EWCA Civ 195

Mrs Townsend sought permission to apply to the Court of Protection regarding withdrawal of dialysis from her incapacitated father. The Trust claimed it was a 'clinical decision' outside best interests scrutiny. The Court of Appeal rejected this distinction, holding all such decisions require best interests analysis.

Facts

Robert Barnor, aged 68, suffered a series of strokes in April 2025 causing extensive irreversible brain damage. He never regained consciousness and was admitted to the intensive care unit of Epsom and St Helier University Hospitals NHS Trust. His treating clinicians described his condition as a ‘prolonged disorder of consciousness’ (PDOC) or ‘terminal decline in consciousness’ (TDOC), with the unanimous view that he had no prospect of recovery. He required twice-weekly dialysis following severe acute kidney injury.

The family, including his daughter Mrs Lesley Townsend, disputed the clinicians’ assessment, reporting that they had observed signs of responsiveness. The Trust obtained three external reports from Dr Prowle, Dr Elias, and Professor Turner-Stokes, all supporting the view that further treatment was futile. Professor Turner-Stokes’ report, marked ‘Without Prejudice’, advised the Trust on how to frame its decision as a ‘clinical decision’ rather than a ‘best interests decision’, thereby avoiding Court of Protection scrutiny.

After Mr Barnor’s tunnelled dialysis catheter failed on 30 January 2026, the Trust informed the family on 6 February that it would not provide further dialysis. The Trust’s solicitors confirmed on 11 February that this was a ‘clinical decision’ and declined to make any application to the Court of Protection. Mrs Townsend applied for permission under s.50(2) of the Mental Capacity Act 2005 (MCA) to bring proceedings. Theis J refused permission on 17 February 2026, concluding that there was ‘no option for the Court of Protection to consider’. Mrs Townsend appealed.

Issues

The principal issue was whether a ‘clinical decision’ to withhold life-sustaining treatment from an incapacitated patient falls outside the scope of best interests analysis under the MCA, such that the Court of Protection has no role. Subsidiary issues concerned Article 2 ECHR obligations, the propriety of refusing s.50(2) permission, and whether objective criteria must be met before treating a decision as purely ‘clinical’.

Arguments

For the Appellant

Mr Quintavalle argued that the distinction drawn by the Trust between clinical and best interests decision-making was misguided and incompatible with the Supreme Court’s decision in An NHS Trust v Y [2018] UKSC 46, the MCA, the Code of Practice, and the 2020 Practice Guidance. The approach also breached Article 2 ECHR, particularly the Grand Chamber’s requirement in Lambert v France (2016) 62 EHRR 2 that courts be available to resolve doubts about best interests.

For the Respondent

Mr Patel KC identified three legally distinct stages: (1) clinical determination of what treatment is appropriate; (2) capacity assessment; (3) consent and provision. He submitted, relying on R (Burke) v GMC [2005] EWCA Civ 1003 and N v ACCG [2017] UKSC 22, that a doctor cannot be compelled to provide clinically inappropriate treatment, and that the clinical decision stage precedes any best interests analysis. The only remedy for challenging a clinical decision was judicial review. The Official Solicitor, as Advocate to the Court, supported this position.

Judgment

The Court of Appeal (Baker LJ, with whom Asplin and Newey LJJ agreed) allowed the appeal on ground 3 and granted permission to bring the application.

The clinical/best interests distinction

Baker LJ held that any decision about the care and treatment of a mentally incapacitated adult, including withdrawal of life-sustaining treatment, must be taken in the patient’s best interests. There is ‘no carve out for clinical decisions’. This principle emerges clearly from Aintree University Hospital NHS Foundation Trust v James [2013] UKSC 67 and An NHS Trust v Y. Under s.5 MCA, a doctor’s protection from liability depends upon reasonable belief that the act is in the patient’s best interests.

Procedural consequences

Where family, clinicians, and any second opinion agree that withdrawing life-sustaining treatment is in the patient’s best interests, no court application is required. Where there is disagreement, an application must be made, and it is the NHS commissioning body that must bring and fund it. A hospital cannot pre-empt court proceedings by unilaterally withdrawing treatment on purportedly ‘clinical’ grounds.

The Vice-President’s decision

Theis J had erred in concluding that there was ‘no option for the Court of Protection to consider’. Baker LJ noted that counsel were unaware of any previous case in which permission under s.50 had been refused in respect of life-sustaining treatment. The approach taken by Henke J in Re AA [2024] EWCOP 39 was disapproved as not in line with established principle.

Limits of the Court’s power

Baker LJ reaffirmed that the Court of Protection cannot compel doctors to provide treatment they consider clinically inappropriate. However, the decision whether treatment withdrawal is in the patient’s best interests is for the Court, not the clinicians.

Interim relief and transparency

The Court declined to grant interim declarations requiring reinstatement of dialysis, holding that re-introducing a temporary line would be invasive and not in Mr Barnor’s best interests, and that the proposed declaration was tantamount to compelling clinically inappropriate treatment. The transparency order was maintained pending remittal. Mr Barnor tragically died on 27 February 2026, before any best interests determination could occur.

Implications

The judgment reaffirms and clarifies that decisions to withhold or withdraw life-sustaining treatment from incapacitated patients cannot be reframed as purely ‘clinical’ to avoid best interests scrutiny by the Court of Protection. Where there is genuine disagreement between treating clinicians and family members about life-sustaining treatment, the NHS body bearing responsibility for the patient must bring the matter before the Court and fund the application; it cannot leave family members to seek permission themselves.

The decision has particular significance for NHS trusts, clinicians, and families engaged in end-of-life disputes. It also signals strong judicial disapproval of the practice, apparently encouraged in Professor Turner-Stokes’ report, of recasting best interests decisions as clinical decisions to sidestep court oversight. Baker LJ noted that the Code of Practice has not been updated since 2007 and that revision is overdue. Until then, practitioners must follow the principles set out in the MCA, case law, the 2020 Vice-President’s Guidance, and professional guidance.

The Court preserved the well-established principle from Burke that a court cannot compel clinicians to provide treatment they regard as clinically inappropriate. The practical effect is that, while the Court cannot order treatment, it remains the forum for determining best interests, and the Trust must initiate proceedings in cases of genuine dispute. The judgment does not resolve wider concerns about resource allocation in PDOC cases, which Baker LJ indicated would require careful assessment and consultation, potentially through the anticipated revised Code of Practice.

Verdict: Permission to appeal granted on grounds 3 and 4; appeal allowed on ground 3. The order of Theis J refusing permission under s.50(2) MCA was set aside. Permission to apply to the Court of Protection was granted to Mrs Townsend, with the Official Solicitor appointed as litigation friend, and the matter remitted for urgent hearing. Interim relief was refused, and the transparency order extended.

Source: Townsend v Epsom and St Helier University Hospitals NHS Trust [2026] EWCA Civ 195