Court of Appeal Hands Down Judgment in Landmark Decision About Clinical Decision Making and The Role of the Court of Protection.

On 3 March 2026 the Court of Appeal handed down a judgment which will have substantial implications for decision-making regarding medical treatment in relation to adults who lack capacity. The judgment is likely to lead to many more disputes about medical treatment having to be considered by the Court of Protection.

In Townsend v Epson and St Helier University Hospitals NHS Trust [2026] EWCA Civ 195 the Court of Appeal decided that all decisions about the care and treatment of incapacitated adults, including clinical decisions, have to be made in the patient’s best interests. Further, that if at the end of the clinical decision-making process there is disagreement between the treating team and family members that cannot be resolved by discussion or mediation, then the matter should be referred to the Court of Protection.

Concluding that there is no carve out for clinical decisions, the Court of Appeal stated that even where the view of the treating team and second opinion experts is that treatment is clinically inappropriate, the Court of Protection will scrutinise the evidence to determine whether treatment is in P’s best interests.

How this decision fits with the Supreme Court’s decision in N v ACCG [2017] UKSC 22 will no doubt have to be considered in future cases.

39 Essex Chambers’ barristers Parishil Patel KC, who acted in the Court of Protection and Court of Appeal, and Vikram Sachdeva KC and Adam Fullwood, who provided advice and representation prior to the Court of Protection hearing, were instructed by Capsticks for the NHS Trust.

You can read more about the case on 39 Essex Chambers’ Mental Capacity Law and Policy blog: here

The full judgment is available: here