Anonymised Summary of Opinion

Factual and Procedural Background

This matter concerned an application by the Appellant (the patient’s eldest daughter) for permission under s.50(2) of the Mental Capacity Act 2005 ("MCA") to bring proceedings in the Court of Protection challenging the Hospital's decision not to continue long‑term dialysis for the Patient, who had suffered multiple strokes and remained unconscious in a prolonged/terminal disorder of consciousness. The Hospital's clinical team concluded that continued dialysis was clinically inappropriate and would only prolong dying; three external expert reports were obtained. The Appellant sought permission to apply; the Vice‑President of the Court of Protection (Judge Theis) refused permission on 17 February 2026. The Appellant sought permission to appeal to this Court. A three‑judge court heard the appeal on 23 February 2026, reserved judgment, and indicated that permission to appeal would be granted on limited grounds and that the Appellant would be permitted to bring the proposed application; the matter was directed back to the Court of Protection for urgent determination. Before the remitted hearing, the Patient died on the morning of 27 February 2026. The Court had earlier refused interim relief and maintained a transparency order preventing publication of treating clinicians' names (later relaxed in part after the Patient's death).

Legal Issues Presented

1. Whether the Vice‑President erred in refusing leave under s.50(2) MCA so that the Appellant could bring proceedings in the Court of Protection challenging the Hospital's decision to cease offering long‑term dialysis.
2. Whether a clinical decision by treating clinicians not to offer a treatment on grounds of futility or clinical inappropriateness falls outside the Court of Protection's remit and therefore cannot be the subject of best‑interests scrutiny by the court.
3. If a legal distinction exists between "clinical" and "best interests" decision‑making, whether that distinction is objectively grounded and, in the event of dispute, whether the Court must examine whether the criteria for any distinction are met.

Arguments of the Parties

Appellant's Arguments (as presented)

• The Vice‑President's refusal to grant leave denied the Patient effective access to the court in circumstances involving the proposed withdrawal of life‑sustaining treatment, engaging Article 2 ECHR and common law principles.
• The distinction between a "clinical decision" not to offer treatment and a "best interests" decision is unlawful or incompatible with the MCA, relevant guidance and case law; the Court of Protection must be able to determine best interests where there is dispute about life‑sustaining treatment.
• If any distinction exists, the court must be able to determine whether objective criteria for that distinction are satisfied; permission to apply was necessary to enable the court to make that assessment.

Hospital's Arguments (as presented)

• Treatment decision‑making comprises distinct stages: (1) clinician decides what treatment options are clinically appropriate to offer; (2) assessment of capacity; and (3) provision of any treatment offered (or best‑interests decision where P lacks capacity). A clinical decision not to offer treatment on purely clinical grounds is not a matter for the Court of Protection but for judicial review.
• Doctors cannot be compelled to provide treatment they consider clinically inappropriate; the Court of Protection is not the correct forum to review a clinical decision not to offer treatment.
• Authorities such as R (Burke) v GMC, N v ACCG and other appellate authority support the distinction and the legal framework described by the Hospital.

Official Solicitor's Position (as presented)

• The Official Solicitor supported the position that the Court of Protection's scrutiny is confined to best‑interests decisions about treatment options that are on offer; a pure clinical decision not to offer a treatment does not become a best‑interests decision solely because the patient lacks capacity.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court analysed statutory provisions (notably ss.1, 4, 5, 15, 16 and 50 MCA), the Code of Practice, professional guidance, and the authorities above. It identified the following legal and analytical steps:

1. Confirmed it was accepted that the Patient lacked capacity, so the inquiry fell to best‑interests decision‑making under the MCA.
2. Examined authorities cited by both sides. It acknowledged the established principle (from Burke and other authority) that clinicians decide what treatments are clinically indicated and are not obliged to provide clinically inappropriate treatment, and that a doctor cannot be compelled to perform treatment he/she regards as clinically unjustifiable.
3. Placed that principle in the statutory and supervisory context of the MCA and subsequent authorities (notably Aintree and An NHS Trust v Y). The Court emphasised that all decisions about incapacitated adults, including clinical decisions, must be taken in the patient's best interests and that where dispute remains at the end of the clinical decision‑making process, the matter should be referred to the Court of Protection.
4. Explored the Vice‑President's (Judge Theis) reasons for refusing permission: that the medical decision‑making process had concluded and that the Court of Protection would have no option to consider. The Court concluded that this approach incorrectly allowed the Hospital effectively to pre‑empt the Court by treating a disputed clinical decision as immune from best‑interests scrutiny.
5. Distinguished Re AA (Henke J) to the extent that Henke J concluded there was no best‑interests decision where the court had no choice; the present Court found that conclusion inconsistent with the wider framework of case law, the Code and guidance which envisage court scrutiny where disagreement persists.
6. Balanced competing considerations about the urgency of the case and the propriety of interim relief. The Court refused to make the wide interim declarations sought because any order would be short‑lived, might require clinicians to undertake invasive acts contrary to their clinical judgment and might amount to compelling clinicians to provide treatment they regarded as clinically inappropriate.
7. Applied s.50(3) MCA in granting permission to the Appellant: having regard to the Appellant's connection to the Patient, the reasons for the application, the likely benefit to the Patient of court determination, and that benefit could not be achieved by other means given the breakdown of consensus.

Holding and Implications

Core Ruling: The appeal was allowed on ground 3; the order refusing permission to bring proceedings was set aside and the Appellant was granted permission under s.50(2) MCA to apply to the Court of Protection for declarations and orders in respect of the Patient.

Direct consequences for the parties (as recorded in the judgment):

• The matter was remitted for an urgent hearing in the Court of Protection before a Tier 3 judge (listed for 26 or 27 February 2025 in the order as handed down).
• The Official Solicitor was appointed to act as litigation friend in the proceedings.
• Interim relief sought by the Appellant was refused.
• The existing transparency order remained in force pending the next hearing (with preservation of anonymity for treating clinicians during the proceedings).
• Subsequently, the Patient died on the morning of 27 February 2026; as a result, no best‑interests evaluation took place on the remitted hearing.

Broader implications: The Court reaffirmed that there is no general carve‑out from best‑interests duties for so‑called "clinical decisions" about life‑sustaining treatment; where disagreement remains at the conclusion of clinical decision‑making, the Court of Protection should be available to resolve disputes. The Court also stressed that the MCA, the Code of Practice, professional and national clinical guidance, and the case law together govern the process to be followed; the Hospital cannot unilaterally pre‑empt the court's role by treating a contested decision as purely clinical and beyond judicial scrutiny.