The Court of Appeal’s decision in Townsend v Epsom and St Helier provides that any decision about the medical treatment of a mentally incapacitated adult, including the withdrawal of life-sustaining treatment, must be taken in the patient’s best interests – and so clinicians are not allowed to make a unilateral decision to refuse to provide treatment without going to Court if there is a dispute. It is then for the Court, not the clinicians to determine best interests.
The decision in Townsend is a significant ruling for healthcare professionals and families involved in medical treatment cases concerning adults who lack capacity, as well as for those advising hospital trusts and commissioners. The decision, subject to any appeal to the Supreme Court, will reshape the practice of healthcare professionals navigating Court of Protection proceedings.
The appeal centred on a challenge that the “clinical decision” to withhold life sustaining medical treatment is not subject to best interests considerations and is not subject to the oversight of the Courts.
Lord Justice Baker delivered the lead judgment supported by Lord Justice Newey and Lady Justice Asplin.
At paragraph 68, Lord Justice Baker outlines five principles that he says are “clearly and consistently established by the case law and professional guidance”. They are:
(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are in agreement that it is not in the patient’s best interests to continue life-sustaining treatment, then this can be withdrawn without application to the court.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.”
Lord Justice Baker concludes with his view at paragraph 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”.”
His approach is set out at paragraphs 74-77 where he explains that once proceedings have been started, it is for the Court – not clinicians – to determine whether life sustaining treatment is in the patient’s best interests. It is also for the Court of Protection to determine how the case is managed, including whether an abbreviated process is appropriate.
Lord Justice Baker also considers the points raised by Professor Turner-Stokes, noting her comments that there remain “grave concerns” among professionals regarding the procedure to follow in cases involving patients with prolonged disorders of consciousness. He recognises that these cases demand significant medical and legal resources, and notes that some professionals support a different approach. However, he emphasises that any change must be preceded by thorough consultation and must be incorporated into the upcoming revised Mental Capacity Act Code of Practice. Until such revisions are made, all cases should continue to be managed in line with the MCA, established case law and existing guidance.
Practical implications
For now – and pending an appeal – is the approach to be adopted as that stated at paragraph 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.”
However, many commentators, including Alex Ruck Keene KC argue that this Court of Appeal decision is not aligned with other Supreme Court cases, including N v ACCG or the Court of Appeal in AVS v A NHS Foundation Trust, with the decision in Medmoune v France highlighting a space for clinical decision making in the context of those who lack capacity.
So, it is arguable that not much needs to change in terms of clinical practice.
However, for now it would be advisable for hospital Trusts to seek second opinion reports and share with the family, fostering an open and transparent approach to the decision-making process. If there is still disagreement with the family, then even if the clinicians refuse to offer the treatment that is being asked for by the family, the matter must be brought to Court.
It's important to remember (and this was recognised in the judgment) that there is still no power for the Court to order a clinician to provide treatment they believe isn't appropriate to undertake, and so it's unclear what would happen in the event of a judge ordering that treatment is in the patient’s best interests where the clinicians refuse to do this. It would clearly be a difficult position but not one which is addressed in the decision.
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