No 'carve-out' for clinical decisions under Mental Capacity Act

Ed Madden, BL, looks at a recent England and Wales Court of Appeal case which considered whether clinical decisions are subject to best interests considerations under the Mental Capacity Act 2005

On February 24, 2026, following a hearing on the previous day, the England and Wales Court of Appeal allowed an appeal from a decision of the Court of Protection dealing with life sustaining treatment for a 68 year-old man with ‘prolonged disorder of consciousness’. The order of the Court of Protection dismissing the application for permission to bring proceedings was set aside. A written judgment explaining the rationale for the appeal court’s decision was published in early March 2026.

When the case came on for hearing, it was not in dispute that the patient, Robert Barnor, lacked capacity to conduct proceedings or make any decisions about his care and treatment. At issue in the appeal was whether the judge in the Court of Protection erred in holding that a ‘clinical decision’ to withhold life sustaining medical treatment is not subject to best interests considerations under the Mental Capacity Act 2005 and hence is not subject to the supervision of the Courts.

The Court heard that Mr Barnor was a much-loved father and husband. In April 2025, apparently without warning, he collapsed having had a stroke. A further series of strokes followed, as a result of which he suffered extensive and irreversible brain damage. Having been admitted to a hospital under the management of Epsom and St Helier University Hospitals NHS Trust (‘the Trust’), he never regained consciousness and remained in the intensive care unit.

The unanimous view of his treating clinicians was that he had no prospect of regaining consciousness or achieving any recovery that would allow a return to independent life ‘or to a level of quality of life he could experience’. However, members of his family had a different view. They maintained that from May 2025, they saw signs of improvement in his condition. According to a statement by his eldest daughter, Mrs Lesley Barnor Townsend, who acted on behalf of the family, ‘they had often seen him awake and responsive’. She described her father ‘as tracking the family and nurse with his eyes, squeezing his wife’s hand, responding to requests that he squeeze it harder, …pointing when he wants help’.

The Court was told that prior to his collapse in April 2025, Mr Barnor suffered from kidney disease. Following his stroke, he developed severe acute kidney injury which required renal replacement therapy and dialysis. Attempts to wean him off dialysis were unsuccessful and he was put back on dialysis in the latter part of 2025. A central line was fitted and treatment administered twice a week. The central line subsequently became blocked and on January 30, 2026, a temporary line, called a vascath, was fitted. The evidence was that this was only suitable for short-term use and was inserted to avoid an abrupt interruption of dialysis while the team met with the family and communicated to them that Mr Barnor was ‘not suitable’ for long-term dialysis, that no dialysis access would be conducted and that no new tunnelled line would be inserted. The family strongly disagreed with this approach and sought redress in the Court of Protection.

Giving the judgment of the three judge Court of Appeal, Lord Justice Baker said that the following principles are 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.

(2) If all parties (including family members, treating team and those providing second opinions) are in agreement that it is not in the patient’s best interests to continue life-sustaining treatment, such treatment 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, which cannot be resolved by discussion or mediation, 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 (the appellant in the present case was Mr Barnor’s eldest daughter).

(5) In exercising its powers to make declarations and orders about the patient’s best interests, the Court of Protection cannot compel a doctor to give a treatment that he or she considers clinically inappropriate.

The judge said it followed that 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’ (exception) for clinical decisions. The course taken by the Trust in the present case was contrary to established principle and practice articulated in the case law and other relevant guidance. The hospital cannot pre-empt court proceedings by unilaterally withholding or withdrawing treatment on ‘clinical’ grounds. A decision whether or not to withdraw treatment is a ‘best interests’ decision.

The judge said that the Court of Protection erred in deciding that permission to bring the proceedings should be refused because ‘the medical decision-making process has concluded that dialysis will no longer be offered’ and that there was ‘no option for the Court of Protection to consider’. In cases such as Mr Barnor’s, where the view of the treating team and the second opinion experts is that continuing treatment is clinically inappropriate, the Court will scrutinise the evidence to determine whether withdrawal or withholding of treatment is in the patient’s best interests. That being said, there are no circumstances in which the Court can compel doctors to provide treatment that they consider clinically inappropriate.

The judgment records that very sadly Mr Barnor died on the morning of February 27, 2026, four days after the hearing in the Court of Appeal. In the circumstances, no best interests evaluation was undertaken.