Townsend v. Epsom & St Hellier University Hospitals NHS Trust [2026] EWCA Civ 195

1. The Court of Appeal judgment in Townsend, handed down today, may surprise some practitioners dealing with medical treatment applications in the Court of Protection – but it certainly needs close attention from those advising hospital Trusts on such cases.

 

2. In summary, the Court of Appeal’s judgment will impact on professionals and families in two ways:
   1. The appeal arose from a refusal of permission to bring a welfare case in the Court of Protection, applying s.50 MCA.  The Court of Appeal said these cases would almost always get permission.  The implication of that is that Hospital Trusts will need to bring more of the cases to Court.
   2. The Court of Appeal judgment sees little if any room for hospitals to remove options on clinical grounds, seeing issues as primarily best interests.  This may change both the options put to patients’ families and the range of options considered in applications to the Court.

 

FACTUAL CONTEXT

3. This tragic case concerns Mr Robert Barnor, a 68 year old man who was admitted to hospital on 7 April 2025 following a collapse at home. He suffered a series of strokes which left him with significant and irreversible brain damage.  Mr Barnor also suffered from kidney disease; following his collapse, his kidney function deteriorated further and he required dialysis.  A trial period off dialysis in August 2025 was unsuccessful. Subsequently, the tunnelled dialysis catheter through which he received dialysis became blocked.  While a temporary catheter was inserted, a replacement catheter would have been required for further dialysis to continue.

The Mental Health Act 2025, which amends and modernises the Mental Health Act 1983, received Royal Assent on 18 December 2025, albeit the majority of the provisions are not yet in force.

The MHA 2025 was a long-awaited act. Detentions under the MHA 1983 rose by over a third between 2006 and 2016, possibly contributed to, inter alia, by 2007 reforms to the MHA which widened the definition of mental disorders and treatment and reduced availability of alterative community care. It was widely recognised that patients under the Act often felt they had a poor experience of care. It is no coincidence that the December 2018 Final Report of Sir Simon Wessley’s Independent Review of the Mental Health Act 1983 was entitled “Modernising the Mental Health Act”.

There has also been no shortage of hype generated around the changes that the MHA 2025 will introduce, with the act variously described as “groundbreaking” (Sarah Murphy, Mental Health and Wellbeing Minister), “a turning point” (Lord Timpson, Minister for Prisons, Probation and Reducing Reoffending) “a major step” (Dr Adrian James, Medical Director for Mental Health and Neurodiversity at NHS England), and a “landmark” introducing ““urgent reforms… bringing mental health care into the 21^st century and empowering patients to take charge of their treatment” (Department of Health Announcement 18.12.25).

There is certainly a focus on autism and learning disabilities within the Act, which were two of the key areas of experience identified in the independent review. Although also billed as “tackling unacceptable [racial] disparities” (), again identified in the independent review, it is unclear which parts of the Act are said to be directed at this goal.

Various aspects of the previous regime amended by the MHA 2025, including prisons and police stations as a place of safety and the grounds for detention, were identified in the December 2018 Final Report of Sir Simon Wessley’s Independent Review of the Mental Health Act 1983 as having a disproportionate impact on black patients. The announcement from the Department of Health seems to indicate that the tackling of racial disparities will be achieved primarily through the future publication of “clearer guidance”. What form that will take, and whether the changes will have the intended effect, is as yet unclear.

Practitioners may welcome the more explicit approach to medical treatment decision-making and the extent to which this echoes the best-interests approach adopted under the MCA 2005. The focus on “least restriction” also echoes the principles for approving deprivation of liberty within the MCA 2005 and Court of Protection.

However, practitioners may also share the concerns of the Joint Committee on Human Rights, as published in their Third Special Report of Session 2024–25 HC 1217, on the lack of guidance as to the interface between the MCA 2005 and the MHA 1983. The government’s response to this concern was that further guidance will be published in the revised Code of Practice.

With many of the changes not yet in force, and appearing to depend on the content of regulations and guidance yet to be produced, the transformative extent of the Act remains to be seen.

In Birmingham Women’s and Children’s Hospital NHS Foundation Trust v KB & and ors [2025] EWHC 1292 (Fam), the Court of Protection had to grapple with some remarkable failures of disclosure in a case involving the withdrawal of life-sustaining treatment from a critically ill child.

The Trust had applied for declarations that it would be lawful to withdraw life support for a young child with a rare and devastating condition. Despite clear directions months earlier, the Trust failed to provide a full, coherent set of medical records. Some documents were missing. Others were poorly copied and unreadable. Crucial details, like notes from therapeutic staff and minutes from key meetings, simply weren’t there or were said not to exist.

Hemachandran v Sudiksha Thirumalesh (deceased) and University Hospitals Birmingham NHSFT [2024]EWCA 896 is a landmark judgment given by King LJ with whom LJJ Singh and Baker agree. The successful appeal against the first instance decision that Sudiksha lacked capacity to make decisions about her medical treatment, including palliative care, was brought by her parents. That was because, tragically, Sudiksha died 35 days after the first instance decision of the late, greatly missed Mrs Justice Roberts who is praised, and not at all criticised, by the Court of Appeal. It seems likely that the case will become known as Re Sudiksha or Re Thirumalesh. (In a previous judgment ([2023] EWCOP 43), Peel J authorised publication of Sudiksha’s name).

The adjective “landmark” is justified for two reasons. First, the judgment clarifies the so-called ‘functional’ aspect of the statutory test used to determine whether a person over 16 years has the mental capacity to make a decision. Although the clarification is provided in the context of a decision about medical treatment, the ratio applies to the test for mental capacity in relation to all decisions.

Second, the judgment overturns what King LJ referred to as “an established legal approach to the relevance of a patient’s belief in their illness and prognosis”, which approach she finds to be “wrong and contrary to Court of Appeal authority” (para 10).

GUP v EUP and UCLH NHS Foundation Trust [2024] EWCOP (25 January 2024) 

Cases involving the withdrawal or withholding of life sustaining treatment can be heartrending for all involved, whatever their role.  Such cases will always be uniquely and exceptionally deeply harrowing for P’s family and loved ones.

For any person to become embroiled in conflict with professionals as your loved one is dying must add an unimaginable additional burden to one’s grief.  That burden will be far heavier when that family member is also required to issue court proceedings in order to bring the case before a CoP judge, particularly if having to do so without the benefit of professional advice.  For an inexperienced lay person filing in the necessary COP1 and COP3  and COP24 forms and navigating the procedural labyrinth of making an emergency CoP application, in order to get their case before a judge to be heard, is an enormous challenge.

In this latest serious medical treatment end of life case the Official Solicitor deprecated the family having been left to bring the case to court themselves, after the Trust had initially indicated it would do so but subsequently concluded it was not necessary. The Official Solicitor made an entreaty that all health providers involved in a dispute regarding potentially life prolonging treatment abide by the CoP Practice Guidance [2020] EWCOP 2 and promptly bring the application themselves, rather than leaving unrepresented, inexperienced and often distressed family members (who will frequently not be eligible for public funding) to make their own application.