Lesley Barnor Townsend v Epsom and St Helier University Hospitals NHS Trust

For an adult lacking capacity, decisions about care and treatment, including withholding or withdrawing life-sustaining treatment on clinical grounds, must be made in the person’s best interests under the Mental Capacity Act 2005. There is no separate clinical-decision carve-out. If disagreement remains after clinical assessment, discussion or mediation, the matter should be brought to the Court of Protection. The responsible NHS commissioning body should make and fund the application. The court may adopt an expedited process and decide that treatment is not in the person’s best interests, but it cannot compel clinicians to provide treatment they consider clinically inappropriate. Permission for an initial application by a relative should ordinarily be granted where resolution benefits the patient and cannot be achieved otherwise.

The appellant was the daughter of an incapacitated patient who had suffered irreversible brain damage and was receiving dialysis and other life-sustaining treatment. The treating team decided that further dialysis was clinically inappropriate and declined to offer it, despite disagreement from the family.

The appellant applied for permission under the Mental Capacity Act 2005 to bring proceedings in the Court of Protection. Theis J refused permission, holding that there was no treatment option for the court to consider. The appeal concerned whether a purported clinical decision to withhold life-sustaining treatment fell outside best-interests decision-making and whether the Court of Protection could supervise the dispute.

1. Disposition. The application for permission to appeal was refused on grounds 1 and 2 and granted on grounds 3 and 4. The appeal was allowed on ground 3. Permission was granted under s.50(2) of the Mental Capacity Act 2005, and the matter was remitted for an urgent best-interests hearing. Interim relief was refused. Lord Justice Baker gave the leading judgment; Lady Justice Asplin agreed, and Lord Justice Newey agreed with both judgments.
2. There is no carve-out for clinical decisions. Under ss.1(4) and 4 of the Mental Capacity Act 2005, every decision about the care or treatment of an incapacitated adult, including withholding or withdrawing life-sustaining treatment, must be made in the patient’s best interests. The Court relied particularly on Aintree University Hospital NHS Foundation Trust v James [2013] UKSC 67, [2014] AC 591, and An NHS Trust & Ors v Y & Anor [2018] UKSC 46.
3. The best-interests assessment requires consideration of all relevant circumstances, the treatment’s nature, burdens and prospects, the likely outcome, the patient’s welfare in the widest sense, the patient’s wishes and values, and the views of those interested in the patient’s welfare. The decision-maker must not be motivated by a desire to bring about death. Section 5 provides protection where the decision-maker reasonably believes that the patient lacks capacity and that the act is in the patient’s best interests.
4. If disagreement about continued life-sustaining treatment remains between the family, clinicians or second-opinion experts after discussion or mediation, the matter must be referred to the Court of Protection. Where all relevant parties agree that treatment is not in the patient’s best interests, an application is unnecessary. The NHS commissioning body responsible for the patient should bring and fund any required application. The Court criticised the approach in Re AA (Withdrawal of Life-Sustaining Treatment: No Best Interests Decision) [2024] EWCOP 39 (T3) as inconsistent with established law and guidance.
5. The provider cannot pre-empt proceedings by unilaterally withholding treatment on clinical grounds. The court, not the provider, decides whether proceedings should be abbreviated or curtailed, although it may use case management powers to deal with urgent cases swiftly. The court cannot compel doctors to provide treatment they consider clinically inappropriate: R (Burke) v General Medical Council [2005] EWCA Civ 1003, [2006] QB 273. It must nevertheless decide whether withholding or withdrawing treatment is in the patient’s best interests.
6. Applying s.50(3), the appellant’s connection with the patient, the reasons for the application, the benefit of resolving the dispute, and the absence of another effective route justified permission. The court did not determine the best-interests merits because the patient died before the remitted hearing.

1. Court of Appeal (Civil Division). The appeal was allowed on ground 3. Permission was granted under s.50(2) of the Mental Capacity Act 2005, and the proceedings were remitted for determination in the Court of Protection.
2. Court of Protection. On 17 February 2026, Theis J refused the appellant permission to bring proceedings under s.50(2) of the Mental Capacity Act 2005, holding that the clinical team had concluded that dialysis would not be offered and that there was no option for the court to determine.