Medical treatment cases: the role of medical decision making

Written by: Serjeants’ Inn
Published: 3 March 2026

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.

 

  1. 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

  1. 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.

  1. Over the course of his admission, however, Mr Barnor’s clinicians had come to the conclusion that he was in a prolonged disorder of consciousness (PDOC) with no hope of improvement and considered that continuing treatment was not clinically appropriate. They obtained two second opinions which supported their conclusions, one of which said in terms that the clinician’s hospital would not offer him further dialysis treatment. The hospital also obtained advice from Professor Lynne Turner-Stokes, the national clinical lead for PDOC; she did not see Mr Barnor, but advised as to the appropriate procedure and recommended that references to PDOC or Minimally Conscious State (MCS) in Mr Barnor’s notes be amended to TDOC (Terminal Disorder of Consciousness).  TDOC is defined in the Prolonged Disorders of Consciousness guidance as occurring “towards the end of life in patients with progressive degenerative brain damage” noting “survival times are relatively short (often less than 1–2 years) and there is no potential for improvement” (para 1.1)[1].

 

  1. Turner-Stokes’ recommended procedure was the approach conventionally understood, namely that it was first for the clinical team to decide what treatments were on offer to Mr Barnor, and for this to be explained to his family. This, she said, was not a best interests decision; if the family did not agree with the clinical conclusion, the hospital should seek a second opinion, and do due diligence to determine whether another provider would offer the treatment which the family sought.  If another provider was willing to provide it, and so alternative pathways for treatment were available, a best interests decision had to be made, which would require determination by the Court of Protection if it could not be agreed.  If there were no alternative pathways, she said, the only remedy open to the family would be an application to the Administrative Court for judicial review.

 

  1. Turner-Stokes emphasised that it was important that the clinical team were clear whether they were making (a) “a clinical decision not to offer treatment because you consider it to be clinically inappropriate” or (b) “a best interests decision”.

 

  1. The clinical team thereafter explained to Mr Barnor’s family that a clinical decision had been made not to offer any further dialysis, with the inevitable consequence that he would die.  On the same day, a solicitor instructed by the family wrote asking the Trust to make an application to the Court of Protection for determination of his best interests as regards treatment.  It should be noted that, as often happens, there appears to have been some confusion and dispute between the clinicians and the family as to whether the hospital was using the language of “best interests” or “clinical decision making”.

 

  1. Once the matter was in the hands of the Trust’s solicitors, however, the position was communicated to the family as a clinical decision, which the Trust considered to be supported by the second opinions they had obtained. The Trust therefore declined to make an application to the Court of Protection.  The family thereupon made their own application to the CoP.

 

THE PERMISSION DECISION

  1. Section 50 MCA 2005 requires permission from the Court before most welfare applications can be brought (and see Part 8 COPR).

 

  1. Theis J refused the family permission to bring the application on the basis that:

 

“(a)      I acknowledge and have raised during hearing that there has been confusion in language used with the family, but the evidential reality is that the medical decision making process has concluded that dialysis will no longer be offered by the clinical treating team;

(b)        Secondly, if Mr Barnor had capacity, save for issuing proceedings for Judicial Review, getting leave for that and seeking orders, a person of capacity would not be able to compel a medical clinician for that treatment to be provided. The Court of Protection in its position acting as proxy for somebody who lacks capacity is in no different position when faced with the decision that has been made in this case as a person with capacity would have.

(c)        There is no option for the Court of Protection to consider and as a result the application in my judgment has no real prospects of success and in those circumstances leave should not be given under s.50 MCA.”

 

  1. The family appealed to the Court of Appeal.

 

THE APPEAL

  1. Giving the lead judgment of the court, Baker LJ focused his attention on the third ground of appeal:

(3)        The judge erred in holding that a “clinical decision” to withhold life sustaining medical treatment is not subject to best interests considerations and hence is not subject to the supervision of the Courts.

 

  1. Baker LJ considered that the law fell into two separate strands:

a. The line marked by R (Burke) v General Medical Council (Official Solicitor and other intervening) [2005] EWCA Civ 1003, [2006] QB 273, which is widely recognised as confirming in the case law the principle that a doctor cannot be required to provide treatment to a patient that he considers clinically inappropriate; and

b. The line of authority analysing the principles to be applied when considering whether to withdraw or withhold treatment from a patient lacking capacity, for example Airedale NHS Trust v Bland [1993] AC 789; Aintree University Hospital NHS Foundation Trust v James [2013] UKSC 67, [2014] AC 591; N v ACCG and others [2017] UKSC 22, [2017] AC 549; An NHS Trust & Ors v Y & Anor [2018] UKSC 46; the Practice Guidance issued by Hayden J as Vice -President in 2020.

 

Baker LJ considered that the subsequent cases of GUP v EUP & Anor [2024] EWCOP 3 and Re AA (Withdrawal of Life-Sustaining Treatment: No Best Interests Decision) [2024] EWCOP 39 (T3), showed different approaches between Hayden J and Henke J to the question of whether an application should be made to the Court of Protection where the clinicians were clear certain treatment was not clinically on offer.

 

  1. Having set out this history, he concluded that the following principles were “clearly and consistently established by the case law and professional guidance” (para 68):
    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.

 

  1. It followed that (para 69):

“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’.”

 

  1. Accordingly, the Court concluded that Theis J was wrong to have refused the family’s application and that Henke J’s approach in Re AA was also wrong. The appeal was allowed and the matter remitted to the Court of Protection.  In the event, very sadly, Mr Barnor died on 27 February before the best interests hearing.

 

COMMENT

  1. The principles set out at para 68 (para 14 above) are well reflected in the case law – but do they lead to the conclusion the Court of Appeal reached here, and is there a prior question of whether there is any decision to be made?

 

  1. The approach set out by Henke J (and in the decision of Theis J refusing permission) is commonly applied, ie that there is no room for the Court of Protection to re-evaluate clinical decision making and no best interests decision to be made where treatment is not available on clinical grounds.

 

  1. In many cases which do come to court, the reality is that while clinicians are very firmly of the view that a particular treatment is not indicated, and while they are reluctant to offer it, they do not actually cross that critical line and refuse to provide it. If that is the position, then the treatment is on offer and there is clearly a best interests decision to be made; and if there is a dispute, then it falls to the Court of Protection to make the decision.  If the court agrees with the clinicians, then the treatment will not be given; if the court disagrees, then the clinicians will be obliged to provide the treatment as they have agreed (however reluctantly) to do.

 

  1. This judgment tackles the situation where clinicians do go further and say that treatment is not available. The decision of the Court of Appeal extends the scope of the court’s jurisdiction, so that even though the clinicians have said in terms that they will not provide a particular treatment, it is now open to the family of an incapacitous individual to ask the court to re-evaluate their decision.

 

  1. This, however, begs the question: to what purpose? This conundrum is recognised in the judgment (para 74):

“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.”

 

  1. If the court cannot compel clinicians to provide treatment they consider clinically inappropriate, what will be the outcome of a case where the court disagrees with the clinicians? The treating team may provide the treatment under pressure, even if it goes against their clinical judgment – an outcome which could pose its own ethical problems.  Or they may stand by their decision, and refuse – in which case the court’s conclusion would have no effect.  There might be a search for hospital ready to offer the treatment or a family member may bring an application for judicial review of the clinicians’ decision on the basis that the Court of Protection considered it contrary to the patient’s best interests.  But unless and until another treating team was found or they brought a successful judicial review claim, the family would be left with a best interests declaration that was toothless.

 

  1. One could also ask if there are different ways in which options may not be available, for example: (1) doctors might think treatment unwise or be unwilling to do it; (2) they may think it is not possible; (3) funders might not be willing to fund it. Are all these situations treated alike?  There are interventions not available on the NHS as they are not approved on costs grounds.  Are we to have repeated judgments that they are in P’s best interests?

 

  1. A second problem raised by the judgment is that it appears to create a two tier system. A patient with capacity cannot insist on an evidence based third party review of treatment options.  Is it now the case that the family of an incapacitous patient can do so?

 

  1. There is more to unpick with this judgment. At its narrowest it can be seen as related to procedural points about permission:

73 … 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.

 

  1. However the wider reasoning underpinning this makes it seem inevitable that more medical treatment cases will come to court because families are unhappy with a clinical decision not to provide (or not to continue, i.e. to withdraw) a particular treatment.

 

  1. The case must surely be likely to head to the Supreme Court. In the meantime, the Court of Protection (and doctors making multiple ‘clinical decisions’ on a daily basis) will need to consider more broadly which treatment options to put forward, while being clear which are available, which are in line with recognised treatment pathways, which are ethical and which can be funded.

 

[1] Practitioners will be aware of guidance from the Royal College of Physicians and British Medical Association, “Clinically-assisted nutrition and hydration and adults who lack the capacity to consent” 2018, and the Royal College of Physicians’ “Prolonged disorders of consciousness following sudden onset brain injury” (2020, reviewed in 2025).  Both are referred to in the Judgment