Clinicians or Court: Who decides about medical treatment options?

The Court of Appeal decision of Townsend v Epsom would change medical law fundamentally, but we should not overreact pending any appeal...

Key points

• a Court of Appeal decision on 3 March 2026 has held that any decision about medical treatment for a patient who “lacks capacity” is a best interests decision, including the clinical decision about what treatment options to offer
• this would mean that deciding treatment options in those cases needs a best interests decision making process, consultation with family and others who know the patient best, and any dispute must be referred to the Court of Protection 
• this would be a huge change in the law, and in practice might bring pressure to accommodate the wishes of the family to offer a particular treatment, rather than make an application to Court 
• in any version of this, there would be lots more applications to Court; and there is real tension between the Court scrutinising whether a particular treatment is in someone’s best interests, despite it not being offered to the patient, while being unable to order the clinicians to offer it. This might raise family expectations that cannot be met and cause more frustration, as well as demanding significant resources
• there is so much uncertainty about the judgment, how it should be applied in practice, and whether it is consistent with other Court of Appeal and Supreme Court authority, that we anticipate and hope that there will be a prompt appeal to the Supreme Court, and it is reasonable not to change clinical approach wholesale pending any appeal.

Factual background 

Mr Barnor was a 68 year old man, happily married and with five adult children. 

He had never regained consciousness since a series of strokes in April 2025, which caused profound and irreversible brain damage. He was diagnosed as being in a “terminal decline in consciousness” (TDOC), and there was no prospect of him regaining consciousness. Treating clinicians considered it was futile to continue providing dialysis – which he needed for a pre-existing kidney condition - and proposed to stop this, as a "clinical decision" about the options they were willing to offer, i.e. not a matter of a “best interests” among those options. 

This was supported by three “second opinion” reports from independent specialists, obtained in October / November 2025, though the family say that these were not disclosed to them at the time.  

The family saw signs of improvement in his condition, and they wanted all treatment to be given, including dialysis. The family made an application to the Court of Protection to secure this, and then to the Court of Appeal. 

Sadly, Mr Barnor died in the time between the Court of Appeal hearing the case and handing down its judgment.

The Court of Protection and the status quo

The question of who makes decisions about medical treatment – until now at least – is generally best addressed by the conventional wisdom is that there is a distinct sequence of separate decisions: 

1. offer - clinicians decide what treatment/s to offer – setting the "available options"
2. choice - a patient, if they can, will then make a decision for themselves among those options, to accept whichever they like, or to refuse them all. Or,
3. best interests - for a patient who lacks capacity for (2), a best interests decision must be made for them among those same options, using the Mental Capacity Act, and of course a dispute about that belongs in the Court of Protection to resolve.

But crucially, the fact that a patient lacks capacity for their own choice among the available options (2) does not mean that the decision about what clinicians will offer (1) becomes a "best interests" decision. 

The Court of Protection, like any other best interests decision maker, can only stand in the patient's shoes, and choose among the options available to them. A lack of capacity for a particular decision is not a trump card to distort clinical decision making or resource allocation. Clinicians do not have a monopoly on best interests decisions about which option to take, not least because there is almost always someone who knows the patient better as an individual than they do. But they do have the right to decide what options they are willing to offer. The MCA has not been understood to give preferential treatment to someone who lacks capacity to make a particular decision for themselves, and “best interest” decisions are concrete and practical – not abstract or hypothetical – being limited to a choice among options that are actually available.  

And no patient, and no court, can force a clinician to offer treatment that they are unwilling to give (the most you can do, perhaps, is bring a judicial review of the lawfulness of the decision-making – a very high bar to clear - which might, at most, lead to an order that the decision must be made again).  

As far as we can see, the decision by Theis J has not yet been published, so what we know of it is from the summary in the Court of Appeal decision. But it seems that this is the conventional basis on which Theis J dealt with the case in the Court of Protection on 17 February 2026, refusing permission for the family to bring their case to court for a best interests decision about dialysis because, essentially, there was no best interests decision to make:

1. there may have been confusion in the language used with the family, but the reality was that there was a medical decision that dialysis would not be offered
2. no patient (regardless of capacity) can compel a clinician to provide treatment that they are unwilling to do; and 
3. there was no treatment option (for dialysis) available for the court to consider. 
   

This is in line with a lot of case law, at High Court (e.g. re AA, no best interests decision); Court of Appeal (Burke v GMC, AVS – which was surprisingly not cited in the Court of Appeal in this case) and Supreme Court (Aintree v James; MN v ACCG).

But on the family’s appeal, the Court of Appeal has held that all this conventional wisdom is wrong.  

The Court of Appeal’s Decision 

The case is Townsend v Epsom and St Helier University Hospital NHS Trust [2026] EWCA 195. A single substantive judgment is given by Baker LJ (a judge who knows his way round medical treatment decisions), with which Newey and Asplin LLJ agree. 

The Trust argued that Theis J was right, and – interestingly - the Official Solicitor, acting on behalf of the patient himself, agreed. 

The family’s key argument was that Theis J was wrong that a “clinical decision” to withhold life sustaining medical treatment is not subject to best interest considerations and hence is not subject to the supervision of the courts. 

Baker LJ agreed with the family, holding that:

"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" (para 68)

And so, 

"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”." (69, emphasis added)

We will have to think about how widely this applies, but in at least some situations this would wipe out the distinction between the clinicians’ decision what treatment to offer, and the best interests decision among those options. Instead, it is all a question of best interests, and as such there needs to be a best interests decision making process per the Mental Capacity Act, and it is open to the Court of Protection to resolve any dispute. 

However, Baker LJ also repeated the well-established point that a patient (and the court) cannot compel a clinician to provide particular treatment. As such, the role of the court in this situation is to “scrutinise the evidence to determine whether withdrawal or withholding treatment is in P’s best interests.” It might only be an “abbreviated process”, where appropriate. “But the decision is for the Court, not the clinicians” (para 74). 

And finally, he said, the application to court must be made by “the NHS commissioning body responsible for the patient.” which we will come back to below (para 72).

Uncertainties and (possible) implications

Though the application was brought in the context of “withholding life-sustaining medical treatment”, the language of the Court of Appeal has no such overt limits (“All decisions…”, said Baker LJ, “including clinical decisions…”). 

At face value, then, this seems to mean that when any decision is made about a patient who “lacks capacity” (see below), then this is a best interests decision, needing the consultation with the family / others per the MCA, and an application to Court for any dispute. 

Does this mean, for example, that a decision not to offer a cancer drug that the NHS decides is prohibitively expensive, is now to be regarded as a best interests decision, with an obligation to consult the family and take into account the patient’s wishes and feelings, and to take a dispute to the Court of Protection? If not, why should that be different in principle to a clinician refusing to provide something that is not clinically indicated? 

What about the daily reality of allocating the scarce resource of an ITU admission among too many patients who might benefit from it, when some need it more than others? The point of the Court of Protection is to focus only on the individual and their best interests. It is ill-suited to tackle resource allocation questions that need to balance the needs of the many. 

What about a clinical decision not to attempt, CPR based on this being futile? Do we now go beyond the traditional view that this needs “consultation” with the patient (and, if appropriate with their family – Tracey v Addenbrookes) and now say that this must be considered through the lens of best interests, and scrutinised by the court if there is a disagreement? 

And must all treatment, no matter how clinically inappropriate, be given in the meantime? 

How far do we go to draw the line? In any clinical situation there are almost infinite treatments not being offered. Is a family entitled to argue before a judge that any treatment they want should be offered in the patient’s best interests? 

Must clinicians explain themselves to the Court of Protection, if the family insist, when they decline to offer treatment that just won’t work, such as giving antibiotics for a viral infection?

Is there any principled reason why this should apply only in hospital, rather than across the whole of community services and primary care? 

Any version of this approach would surely see a huge increase in applications to court. 

But what would that actually achieve? Will we just see a raft of decisions in the Court of Protection that declare a particular treatment would (hypothetically) be in a patient’s best interests but recognise that the court cannot make a clinician provide it? Would that then be used in practice (or in judicial review) to apply more pressure to the clinicians to rethink? Or will it just raise the family’s expectations, spend huge amounts of time and resources in the legal costs of applications and the burden on clinicians to provide the evidence for hearings, and take the family away from the bedside and into court, when the reality is that the court cannot change the clinicians’ mind? 

Conceptually, would there need to be two rounds of best interest decisions – first to identify the available options, and then to choose among them? Or will this be a single process that blurs the two together, effectively starting with a blank page about what could be on offer? We know that best interests decisions at the moment work much better when we start with clear treatment options to choose among. 

Would an IMCA need to be involved in the clinical options decision about serious treatment, if the patient has no family or friends to speak for them? It would seem odd to make this increased scrutiny of the decision making and protection for the patient depend on them having a family to raise a dispute, giving less protection to someone who does not who is arguably more vulnerable. 

In practice, will we see clinicians more likely to simply accommodate the wishes of a family to avoid a court application, sometimes perhaps at the expense of the welfare of the patient who might then be getting treatment when there are very good reasons why the clinicians were not previously willing to provide it? (see GUP, in which Hayden J was very critical of a treatment plan which had “an air of compromise” for agreeing to provide hydration at the family’s insistence which caused the patient harm). 

Is it healthy to push clinicians to provide treatment even where they consider it to be unethical or unconscionable? What of the clinician’s individual duties to the patient, and professional regulatory obligations when they are pressed to provide treatment against their judgement? Or when they continue to refuse to provide treatment if the Court of Protection has said that (if available) it would be in the patient’s best interests to have it? The current guidance of the GMC and NMC would need substantial rewriting.  

Will there be an additional demand on clinicians to find another provider who will give that treatment, and then for the NHS to fund that, including overseas? 

Is it OK to introduce a discriminatory approach - that a patient with capacity simply cannot demand particular treatment, on well- established principles, but that this rule is bent for a patient who lacks capacity to allow an argument on their behalf that it is in their best interests to have it anyway?  

And in principled terms, “capacity” for what decision are we talking about, by the way? To have jurisdiction, the Court of Protection must be satisfied that the patient lacks capacity for the relevant decision – i.e. they cannot understand, or retain, or use or weigh the information relevant to that decision, due to an impairment or disturbance in the functioning of the mind or brain. 

This makes perfect sense when it is the patient’s decision between, say, chemotherapy and radiotherapy, and the patient must evaluate the pros and cons of either / neither and make his choice.  But if surgery is not being offered, must the patient really lack the capacity to understand etc the reasons for not offering surgery? That is the relevant decision, surely. But it is the doctor’s decision, not the patient’s.  

Or must we imagine that the treatment is available, to assess the patient's capacity as if it were their decision? And must we do this for any treatment imaginable, when there are inevitably innumerable things not being offered?

Baker LJ quotes section 1(4) of the Mental Capacity Act, and “cardinal principle” that “An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests” (emphasis added).

But it is not obvious that a clinical decision about what treatment options to offer, which is a decision made by definition prior to an assessment of the patient’s capacity to make the decision for themselves to choose among those options, can be said to be a decision made under the MCA. It is a decision that is made by clinicians first, and regardless of capacity. It sets out the options for the capacitous and incapacitous alike, and before the MCA has any role. 

There are problems with the Court of Appeal judgment in principle as well as in practice.

And though this is a case about an adult and the MCA, is there a principled reason why this should not apply equally to cases about children, and the role of those with parental responsibility to insist on particular treatment against clinical judgment?

The role of the commissioner

The Court of Appeal say that the application to court should be by the NHS commissioner, rather than the provider, which will alarm ICBs and (for now) NHS England. 

There may be cases where it is appropriate for the commissioner to be the applicant, for example in cases about continuing artificial nutrition and hydration for a patient in a care home, where a care package is commissioned on an individual basis under NHS Continuing Healthcare.  

The Court of Appeal seems to adopt and universalise extracts from the Royal College of Physicians’ guidance on prolonged disorders of consciousness, which refers to applications being made by the NHS commissioner, without giving much explanation why this is appropriate in every case. 

It is not obvious why an ICB (or NHS England) as commissioners would be the appropriate party to make an application to court in relation every medical treatment decision, for instance about a hospital inpatient for whom the ICB is not commissioning their current care on an individual basis, and where the ICB is unlikely to know anything about that situation.

Certainly, a huge expansion in the ICB’s role in such cases does not sit well with the policy drive to streamline their functions, and the current deep cuts in their resources that reflect this. NHS England of course is on its way out of existence entirely. 

We would advise some caution before providers rely unduly on this judgment to say that any application to court is up to the commissioner to bring, and it seems that the court’s comment on this is likely to increase the risk of delay and dispute in bringing such applications, especially given the current costs pressures on the whole system.

What next?

We should know soon whether the Trust involved in this case, or the Official Solicitor, will seek leave to appeal to the Supreme Court. 

Given the huge uncertainties, the potential implications and the extent to which this upends established practice, an appeal to the Supreme Court must be likely, and it is certainly desirable.

For now / practicalities

One key question for now is what approach to take in the meantime, pending any further appeal. Must clinicians now regard every clinical decision for someone who “lacks capacity” as being a best interests decision, with best interests meetings, and consultation of the family, and urgent applications to court where there is any dispute? Should treatment just be offered when demanded to avoid such disputes? 

It is telling that even in this case the Court of Appeal refused the family’s request for interim declarations that all treatment should be provided in the meantime pending the final hearing, saying that it would be “tantamount to an order compelling the doctors to deliver a treatment which they consider clinically inappropriate” (para 79). The court clearly does not intend that to be the result.  

If there is an appeal, we will see what the Supreme Court says and can only hope that such an appeal is properly informed by relevant interventions, including from clinical professional bodies. 

In the meantime, it is reasonable to take the view that this Court of Appeal judgment is not consistent with a number of Supreme Court cases, as well as other Court of Appeal decisions, and so it is not clear-cut that clinical practice must change immediately, at least pending an appeal, given the practicalities and uncertainties of implementing this. 

There are other practical things to get right for now.  

The judgment rightly emphasises the need for timely second opinions to be obtained and shared with the family as part of an open and collaborative process. 

There may be a role for mediation in that process to resolve disputes without a court application, but that needs to be considered carefully to ensure that it does not just add undue cost and delay if an application is inevitable. 

In part, this decision is driven by a concern that at times decision making is shielded from judicial scrutiny by too readily framing it as a clinical decision where the reality is that it is a treatment that clinicians would be willing to offer, but they think it best not to. That is likely to be better seen as a best interests decision and given that proper MCA process. Sharper focus on that will help us to identify and tackle the harder cases where treatment is demanded that the clinicians will not offer at all. 

The language around this is critical, and we will need a better understanding of what we mean if we say that a treatment is “futile”, which has not yet really been well established in law. 

Typically, at the core of disputes about medical treatment there is a breakdown in trust and communication, or a failure to manage expectations. With even more uncertainty about the legal framework for these decisions, for now, the clarity of communication and an open and collaborative relationship between clinicians, patients and families is more important than ever.