In its judgment handed down on 3 March 2026 in Townsend v Epsom and St Helier NHS Trust [2026] EWCA Civ 195, the Court of Appeal overturned the decision not to grant permission under Section 50 of the Mental Capacity Act 2005 (MCA) to Mrs Lesley Townsend to bring an application to the Court of Protection seeking declarations and orders relating to her father’s medical treatment. This unprecedented decision, amended on 5 March, has significant implications for clinical decision-making for patients who lack capacity. By stating that there is “no carve out for clinical decisions”, the judgment appears to conflate clinical discretion and best interests decision-making and raises the risk that more disputes will be referred to the Court of Protection.

The background

Although Mrs Justice Theis’s ex tempore judgment has not been published in full, her reasons for refusing the application are set out at paragraph 29 of the Court of Appeal judgment and can be summarised as:

1. The medical decision-making process has concluded that dialysis will no longer be offered by the clinical treating team;
2. The Court of Protection is in no different position when acting as proxy for someone who lacks capacity than a person with capacity would be (as established in R (Burke) v General Medical Council, no one can require a clinician to provide a form of treatment that is unavailable or not clinically indicated);
3. There is no option for the Court to consider and therefore the application has no prospect of success.

Until the Court of Appeal’s decision on 3 March, the above conclusions were generally considered to be well understood and established principles of medico-legal decision-making underpinned by case law, statute and guidance.

The Court of Appeal's judgement

Lord Justice Baker provided the only judgment. In paragraph 68, he sets out that:

The following principles are therefore 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are in agreement that it is not in the patient’s best interests to continue life-sustaining treatment, then this can be withdrawn without application to the court.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 [about the continuation of life-sustaining treatment]* 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.

*wording added 5 March 2026

At paragraph 69, Baker LJ concluded: 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”.

However, at paragraph 74, he stated: In no circumstances can the Court compel the doctors to provide treatment that they consider clinically inappropriate.

Capsticks’ view: potential implications of the judgment

This judgment has rightly led to significant concern among legal and medical professionals. It had always been the case that there was a first step, which applies to all clinical decision-making for any patient with or without capacity, where a doctor exercising professional skill and judgment determines the appropriate clinical options. This approach has been supported in Supreme Court decisions such as Montgomery v Lanarkshire Health Board. This is not a decision taken under the MCA.

The Court of Appeal’s judgment does not appear to give space for any decision-making other than on a MCA best interests basis. It also conflates the clinical judgment phase with the best interests phase of decision-making, which is contrary to case law and guidance. It is unclear whether that would result in disputes between families and trusts or commissioners about treatments which are unavailable on a funding basis falling within the remit of the Court of Protection. For example, cancer drugs not approved as cost-effective by NICE.

More frequently, this approach is likely to make decision-making in areas such as intensive care highly difficult, if each decision about what treatment to provide or withhold must be taken on a best interests basis – whether or not it is regarded as clinically appropriate by experts in the field. This could result in any such disputes being escalated to the Court.

Decisions about whether to provide CPR are objectively decisions about whether to provide a potentially life-sustaining treatment. The Court of Appeal has previously established in R (Tracey) v Cambridge University Hospitals NHS Foundation Trust that, while consultation is required to make those decisions, agreement is not. They remain clinical decisions. The same process is generally followed for Treatment Escalation Plans (which document agreed-upon ceilings of care). However, this judgment seems to suggest that any disagreements between clinicians and family on all those issues should result in applications to the Court of Protection.

In addition, conflict arises between points (1) and (5). The Court of Appeal has not given any guidance regarding what should happen if the Court reaches a best interests decision that clinicians do not consider to be clinically appropriate and cannot be compelled to deliver. In this case the Court of Appeal refused interim relief in part because the draft declaration was “tantamount to an order compelling the doctors to deliver a treatment which they consider clinically inappropriate”. This recognises that there is and should be space for a clinical judgment prior to considering best interests. What would be the benefit of using the Court’s time in this way if it can make no difference to the outcome? Surely in those circumstances, it only serves to increase expense to the NHS and increase stress to families at an already incredibly difficult time. The judgment further envisages that in most cases the Court will conclude that it is not in P’s best interests for treatment to continue, and the possibility of some form of swift procedure to resolve such cases is inferred. But in reality, there is no such procedure (other than perhaps refusing permission, but that is ruled out), and all cases would need consideration against a full evidential background.

The judgment also references that the obligation is upon the “NHS commissioning body with overall responsibility for the patient to bring and fund the application”. It is unclear whether this was intentional phrasing, as there were no commissioning bodies involved in this case and there is no criticism within the judgment of the absence of a commissioner. It is not current practice that commissioners routinely bring applications relating to in-hospital treatment disputes, but the entire service will feel the economic consequences of this approach if it stands, regardless of who picks up the costs for the likely greater number of cases that will now have to come to Court.

Conclusion

This is a surprising decision, which appears to attempt to fetter clinical discretion and judgment in a way that has not before been contemplated by the Supreme Court. Medical and legal professionals should carefully consider the potential implications on their practice. Early legal advice is also likely to become more important in cases where clinicians and families disagree.

How Capsticks can help

Our Capsticks teams have a vast amount of experience in advising on disputes between clinicians and families. Our experts can also support clinical teams to consider the implications of this judgement and the legality of the clinical care they are proposing.

If you have any queries around what is discussed in this article, and the impact on your health care organisation, please speak to Adam Hartrick, Ellie Ward, Grace Plaxton or anyone on our Advisory division to find out more about how Capsticks can help.