An update written by Dr Anindo Banerjee, department of clinical law, where he considers various aspects of clinical law that our nursing staff, medical staff and other professions rely on when caring for patients.

The issue: This note concerns patients who are suffering from a serious illness and have lost the capacity to participate in decisions regarding their treatment. When the treating clinician decides, using their clinical judgement, that further life-sustaining treatment is not clinically indicated, does this override the requirement under the Mental Capacity Act 2005 to make decisions based on a detailed assessment of the patient’s best interests? If this is the case, this would override the patient’s right to have the lawfulness of the clinical decision and their best interests determined by the Court.

The case: The patient collapsed after suffering a stroke. A series of further strokes occurred, leaving the patient with extensive and irreversible brain damage. The patient did not recover consciousness and was assessed to have no meaningful neurological recovery. Although there were periods of eye opening and reflex responses, there was no reliable communication, consistent interaction or purposeful behaviour. The clinical opinion was that there was no prospect of regaining consciousness. The patient therefore lacked the capacity to make decisions regarding their treatment. The family disagreed and asserted that they had often seen him awake and responsive, squeezing his wife’s hand and blinking on request, reacting to music and pointing when help was required.

Prior to the collapse the patient had suffered with chronic renal disease. Following the strokes the patient developed severe acute kidney injury requiring dialysis. Attempts to wean from dialysis were unsuccessful. A “clinical decision” was made not to offer long-term dialysis, invasive ventilation, circulatory support with vasopressors or continuous renal replacement therapy, based on the patient’s irreversible terminal neurological condition with no meaningful recovery over many months, and no realistic potential for improvement. Dialysis would not improve or reverse the neurological condition, but would prolong the process of dying, and require invasive line access with its associated risks and complications.

Unfortunately the dialysis line became blocked, and a vascath (temporary line) was inserted. Given the poor prognosis, palliative care was recommended. The family disagreed and wished for active treatment to continue. The Hospital Trust asserted that the responsible clinicians had made a clinical decision not to offer treatment, and so referral to the Court to assess the patient’s best interests was not required. The family disagreed and brought proceedings before the High Court. The High Court agreed with the Trust at first instance and asserted that a clinical decision that treatment was not indicated overrides the requirement for a best interests decision under the Mental Capacity Act 2005.

The question: The Court was asked to consider whether the High Court Judge erred in holding that a clinical decision to withhold life sustaining medical treatment is not subject to best interests considerations and hence is not subject to the supervision of the Courts.

The background law: The Code of Practice of the Mental Capacity Act 2005 states that “all reasonable steps which are in the person’s best interests should be taken to prolong their life” and that there will be a “limited number of cases where treatment is futile, overly burdensome to the patient or where there is no prospect of recovery (emphasis added)[1].

The Royal College of Physicians’ “prolonged disorders of consciousness following sudden onset brain injury” national clinical guideline (2020) observes that “the first task is to decide whether the life-sustaining treatment in question is, in fact, on offer … if the treatment is not on offer…the treating clinician cannot be required by the Mental Capacity Act 2005 to provide it”[2].

The judgment:

The following principles are clearly and consistently established[3]:

All decisions about incapacitated adults including clinical decisions have to be made in the patient’s best interests.
If all parties 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.
If there is disagreement between any of the parties about the continuation of life-sustaining treatment that cannot be resolved by discussion and/or mediation, then the matter should be referred to the Court of Protection.
The NHS commissioning body with overall responsibility for the patient should bring and fund the application.
The Court of Protection cannot compel the doctor to give a treatment that he/she considers clinically inappropriate.

The Law as it stands[4]:

Any decision regarding care and treatment of a mentally incapacitated adult, including the withdrawal of life-sustaining treatment, must be undertaken in the patient’s best interests. There is no carve out for “clinical decisions”.
A doctor will not incur liability for an act done in relation to the patient if, when he did act, he reasonably believed that it would be in the patient’s best interests for the act to be done.
If there is agreement between the family, clinicians and any experts asked to provide a second opinion that it is in the patient’s best interests for life-sustaining treatment to be withdrawn, there is no requirement for the matter to be referred to the Court of Protection[5]. If there is disagreement, a court application could and should be made[6]. A decision to withdraw treatment cannot be made purely on clinical grounds…this must be a best interests decision.
Where the Court is engaged, the Court will scrutinise the evidence and determine whether withdrawing or withholding treatment is in the patient’s best interests. However, the Court cannot compel doctors to provide treatment that they consider clinically inappropriate. This is a decision for the Court, however, not clinicians.

What this means:

The decision to withdraw treatment from a patient who does not have capacity should be based on the detailed assessment of best interests under the Mental Capacity Act 2005 and as iterated in the judgment of Baroness Hale in Aintree v James[7]. This involves consideration of “welfare in the widest sense, not just medical but social and psychological; they must consider the nature of the medical treatment in question, what it involves and its prospects of success; they must consider what the outcome of that treatment for the patient is likely to be; they must try and put themselves in the place of the individual patient and ask what his attitude to the treatment is or would be likely to be; and they must consult others who are looking after him or interested in his welfare, in particular for their view of what his attitude would be”.

Where clinicians and the family of the patient agree that withdrawal of treatment is in the patient’s best interests, then treatment can be lawfully be withdrawn without recourse to the Courts. Where clinicians and the family disagree, then clinicians should seek a second opinion, preferably an independent one. Clinicians should discuss the issues with the family, and if, after discussion, and mediation if required, there continues to be disagreement regarding the appropriate course of action, an application should be made by the Hospital to the Court of Protection seeking a best interests decision regarding the withdrawal or continuation of treatment.

Clinicians cannot simply withdraw treatment on the basis that in their judgement treatment is not clinically indicated for the patient in question. A formal best interests decision must be made.

The problem:

The judgment states that the Court cannot compel a doctor to provide a treatment that the doctor, using his skill and judgement, considers is not indicated. This creates a paradox in the law as there may be situations where clinicians consider treatment is not indicated, but the Court considers treatment is in the patient’s best interests. The Court does not have the power to issue an order compelling the doctor treat but reserves the power to determine whether withdrawing treatment is or is not in the patient’s best interests. This may place the clinician in an impossible position and remains to be tested in the Courts. The judgment itself is subject to appeal in the Supreme Court. This appeal may take one to two years to reach a judgment, and in the interim, this is the law as it stands. Clinicians proposing to withdraw treatment in an incapacitous patient should make a detailed best interests judgement, considering the views of the family and others with relevant information. Where there is disagreement, the Trust may refer the case to the Court of Protection.

Dr Anindo K. Banerjee
Department of clinical law
May 2026

[1] Code of Practice of the Mental Capacity Act 2005 paragraph 5.31

[2] Royal College of Physicians. Prolonged disorders of consciousness following sudden onset brain injury. National Clinical Guidelines. 2020. Section 4.2.3.

[3] Townsend v Epsom and St Helier Hospitals [2026] EWCA Civ 195,

[4] Townsend v Epsom and St Helier Hospitals [2026] EWCA Civ 195,

[5] A NHS Trust v Y [2018] UKSC 46

[6] A NHS Trust v Y [2018] UKSC 46, 135

[7] Aintree v James [2013] UKSC 67, 39

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