The Supreme Court is to decide whether an NHS commissioning body has a legal duty to ask the Court of Protection to resolve disputes around treatment of an incapacitated patient, where doctors decide it is clinically inappropriate.
Earlier this year, the Court of Appeal ruled it was for the court to decide whether it was in the patient’s best interests for treatment to continue. It also declined to order interim relief, including dialysis, under section 48 of the Mental Capacity Act 2005.
The case concerns Robert Barnor, who died on 27 February after suffering several strokes leading to irreversible brain damage. Epsom and St Helier Hospitals NHS Trust disagreed that treatment should continue and made a “clinical decision” to stop dialysis.
On 17 February the Court of Protection ruled it had no power to interfere with that clinical decision. The appeal court heard the family’s appeal on 23 February, Barnor died on 27 February.
On 3 March the Court of Appeal ruled that it was for the court, not the clinicians, to decide whether it was in the patient’s best interests for treatment to continue. Lord Justice Baker stated: “There is no carve out for ‘clinical decisions’.”
The family has now been granted permission to appeal the decision not to order interim protection pending the court’s final decision.
The Trust is also appealing the decision that an NHS body must apply to the Court of Protection where there is a dispute over medical treatment – even where doctors say the treatment is clinically inappropriate.
The Supreme Court is due to hear the appeal on 12-13 January 2027.
