Are clinical decisions best interest decisions?

This article was co-authored by India O’Hagan, Trainee Solicitor.

The decision of the Court of Appeal in this case was handed down this week with Lord Justice Baker giving the lead judgment. The Judgment provides authoritative clarification on when disputes concerning life-sustaining treatments for adults lacking capacity must be brought before the Court of Protection.

The Judgment reinforced the centrality of the statutory best interests framework under the Mental Capacity Act 2005 and rejects any suggestion that certain ‘clinical’ decisions fall outside the scope of judicial scrutiny. While the ruling has implications for patients and families, its most immediate operational implications fall upon healthcare providers.

Background 

The case arose from a dispute concerning whether further renal replacement therapy should be provided to a patient who had suffered a catastrophic and irreversible brain injury due to unrelated strokes. Treating clinicians at Epsom and St Helier University Hospitals NHS Trust concluded that insertion of a further dialysis line would be clinically inappropriate and futile, and decided a new dialysis line should not be inserted. The family strongly disagreed and sought to challenge the decision in the Court of Protection to determine whether continuing treatment would be in Mr Barnor’s best interests.

Decision

At first instance, permission to pursue the application was refused by Theis J, Vice-President of the Court of Protection, the reasoning being that once clinicians had determined that treatment was not clinically indicated, there was no substantive treatment decision for the Court to evaluate under the best interests framework.

The Court of Appeal overturned that aspect of this decision and would have returned the case for a best interests determination to the Court of Protection but the patient died in the intervening period. The case did not determine whether dialysis should have continued, instead, its significance lies in clarifying the legal framework governing such disputes. 

Legal clarification 

The Court of Appeal made clear there is no free-standing “clinical exception” to the statutory framework. Decisions about medical treatment for persons lacking capacity are governed by the Mental Capacity Act 2005, and therefore when such decisions are in dispute, this falls within the jurisdiction of the Court of Protection. Baker LJ said (at para 68(1)) “All decisions about incapacitated adults, including clinical decisions, have to be made in the patient’s best interests” [our emphasis]. This might blur the line between available treatment and unavailable treatment (as determined clinically) and could open up debates around whether patients lacking capacity are given greater opportunities for treatment than those with capacity, short of using the route of Judicial Review.

Key principals emerging from the Judgment include:

1. Clinical judgement does not displace best interest jurisdiction – While clinicians are responsible for determining which treatment options are medically available, the question of whether a particular course of action is lawful in respect of a person lacking capacity is determined through the statutory best interests framework. The Judgment does not lower or alter the substantive threshold for establishing whether treatment is in a patient’s best interests.
2. Disagreement triggers the Court’s protective function – Where there is serious dispute between clinicians and others interested in the patient’s welfare, such as their family, and the disagreement cannot be resolved through discussion, the proper forum for determination is the Court of Protection.
3. The Court cannot compel clinically inappropriate treatment – The Court’s role is not to override professional standards by requiring clinicians to provide treatment that falls outside the range of responsible medical practice, but to determine whether the decision making process and outcome satisfy the best interests test.

Impact on NHS Trusts 

The implications for Trusts are largely procedural rather than substantive in terms of clinical standards.

1. Removal of reliance of ‘clinical finality’ – Trusts can no longer rely on the argument that once clinicians determine treatment is futile, there is no justiciable issue.
2. Increased likelihood of Court applications – Escalate contested cases for early legal advice and maintain clear documentation of best interest reasonings in anticipation of potential proceedings.
3. Governance and policy review – Ensure all internal policies reflect that treatment decisions for adults lacking capacity are governed by the statutory best interests framework.
4. Resource and funding considerations – The Judgment clarifies commissioning bodies bear the responsibility for funding applications, and NHS Trusts in particular will inevitably shoulder practical burdens in terms of evidence preparation, co-ordination with legal representatives and potential expert evidence.
5. Continuity - For medical treatment disputes involving children, the High Court’s guiding principal, which is long-established, is that the child’s welfare is paramount (s1 Children Act 1989). Townsend confirms the same structural expectation now applies to adults who lack capacity. This removes any perceived gap between the protective regimes governing children and adults lacking capacity, in turn providing continuity.

Patients and families 

For families and patients, the Judgment strengthens their procedural position, providing a gateway to adjudication where disagreement persists.

Comment

For healthcare providers, the practical message is unmistakable: in the absence of consensus, early recognition of the need for judicial determination is not optional but integral. The Judgment embeds the Court of Protection firmly at the centre of contested clinical disputes.

It is not clear at this stage whether the Trust or the Official Solicitor will seek leave to Appeal to the Supreme Court.

Key points

• Clinicians cannot avoid the statutory best interests framework by framing treatment decisions as purely clinical judgements.
• The Court of Protection remains the central forum for resolving disputes about life-sustaining treatment involving incapacitous adults.
• The Judgment clarifies that NHS and other healthcare bodies bear the responsibility to seek court determination where disagreement persists.