Townsend v Epsom and St Helier: NHS trusts cannot unilaterally withhold life-sustaining treatment on clinical grounds

In Lesley Barnor Townsend v Epsom and St Helier University Hospitals NHS Trust [2026] EWCA Civ 195, the Court of Appeal allowed an appeal against the refusal of permission to bring proceedings in the Court of Protection, holding that an NHS trust cannot circumvent the Mental Capacity Act 2005 by characterising the withdrawal of life-sustaining treatment as a purely "clinical decision" falling outside the best interests framework.

Robert Barnor, aged 68, had suffered a series of strokes in April 2025 leaving him with extensive and irreversible brain damage. He remained in a prolonged — or, in the Trust's preferred terminology, terminal — disorder of consciousness. His treating clinicians concluded that continued dialysis was futile and clinically inappropriate and that a new tunnelled line would not be fitted. The family disputed this position and sought to bring proceedings in the Court of Protection. Theis J, Vice-President of the Court of Protection, refused permission, finding that the medical decision-making process had concluded, that there was no treatment option for the court to consider, and that the application had no real prospect of success.

The Court of Appeal (Baker, Asplin and Newey LJJ) disagreed. The judgement identifies five principles drawn consistently from the case law, the Code of Practice, and professional guidance:

1. All decisions about incapacitated adults — including clinical decisions — must be made in the patient's best interests under section 4 of the MCA 2005, having regard to all relevant circumstances.
2. Where all parties, including family members, the treating team and any second opinion, agree that withdrawal is in the patient's best interests, no court application is required.
3. Where disagreement persists at the end of the clinical decision-making process and cannot be resolved through discussion or mediation, the matter must be referred to the Court of Protection.
4. The obligation to bring and fund that application falls on the NHS commissioning body — not the family.
5. The Court of Protection cannot compel a clinician to provide treatment regarded as clinically inappropriate, but the decision is nonetheless the court's to make, not the clinicians'.

Baker LJ described the Trust's position as contrary to established principle and practice. The Trust's letter of 11 February 2026, which cited extensively from Re AA [2024] EWCOP 39 whilst making no reference to Lady Black's judgement in An NHS Trust v Y [2018] UKSC 46 or to the Vice-President's 2020 Guidance, was criticised as a selective and misleading account of the legal framework. The approach in Re AA — in which Henke J declined to make a best interests determination on the basis that only one clinical option existed — was expressly disapproved as inconsistent with the authorities.

The judgement also signals firm disapproval of the role played by Professor Turner-Stokes' report. Although described by the Trust as one of three "second opinions", the document was in substance a strategic advisory document, headed "Without Prejudice", providing guidance on how to frame clinical decision-making so as to avoid court scrutiny. That framing — the distinction between a decision that treatment is "not on offer" and a best interests determination — was the very distinction the Court of Appeal rejected.

Permission to bring proceedings was granted by the Court of Appeal itself given the urgency, and the matter was remitted to a Tier 3 judge. Mr Barnor died on the morning of 27 February 2026, before any best interests evaluation could take place.

The judgement does not resolve the substantive question of what the outcome of such an evaluation would or should have been. It does, however, settle — pending revision of the Code of Practice — that there is no clinical exception to the best interests framework, and that where life-sustaining treatment is in dispute, the obligation to approach the court rests with the Trust.

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