Townsend (Appellant) v Epsom and St Helier University Hospitals NHS Trust (Respondent)

Permission to Appeal granted

Case summary
Linked cases
Permission to Appeal
Previous proceedings
Change log

Case summary

Case ID

UKSC/2026/0050

Parties

Appellant(s)

Lesley Barnor Townsend

Respondent(s)

Epsom and St Helier University Hospitals NHS Trust

Issue

Was the Court of Appeal wrong not to order interim relief under section 48 Mental Capacity Act 2005?

Facts

In April 2025, Mr Barnor collapsed after suffering a stroke. He suffered a series of further strokes, which resulted in extensive and irreversible brain damage. He never regained consciousness. He was admitted to the Trust’s hospital. The unanimous view of his treating clinicians was that he had no prospect of meaningful neurological recovery. Mr Barnor’s family, however, had a different view. They believed that from May 2025 they had seen signs of improvement in his condition and of responsiveness. Before his collapse, Mr Barnor had suffered from a chronic kidney disease. Following his collapse, he developed severe acute kidney injury which required renal replacement therapy and dialysis. His treating clinicians attempted to wean him off dialysis, but this was unsuccessful and he was placed back on dialysis in the latter part of 2025. His dialysis treatment was administered twice a week via a tunnelled central line. On 30 January 2026, the central line failed and became blocked. A temporary groin catheter (a ‘vascath’) was fitted for short-term use. The treating clinicians reached a clinical decision that Mr Barnor was not suitable for long-term dialysis, and that no new tunnelled line would be inserted. The family were informed of this clinical decision at a meeting on 6 February 2026. Later that day, a solicitor instructed by the family wrote to the Trust to ask it to continue to provide dialysis treatment. On 11 February, the Trust replied and stated that it had “made a clinical decision not to provide further and long-term dialysis to this patient… there are no other treatment options and without dialysis it is anticipated that Mr Barnor will die within a matter of days. He will of course be provided with palliative care by way of symptom management to the extent that his clinical condition requires it.” On the afternoon of Friday 13 February, the family’s solicitors filed an application in the Court of Protection seeking leave to apply under the provisions of the Mental Capacity Act 2005 for declarations and orders relating to Mr Barnor’s treatment, specifically relating to the continuation of dialysis. The applicant was Mrs Lesley Banor Townsend, one of Mr Barnor’s daughters. On 17 February, Theis J refused to grant Mrs Townsend leave to bring the application. On 19 February, Mrs Townsend filed a notice of appeal to the Court of Appeal seeking permission to appeal and interim relief (including the provision of dialysis). The Court of Appeal held a preliminary hearing on Friday 20 February. At that hearing, the Court of Appeal declined to order interim relief (the Trust having informed the Court that there was in effect no practical basis upon which dialysis could be reinstated) but directed that the application for leave to appeal (and, if leave was granted, the appeal itself) should be heard on Monday 23 February. The hearing in the Court of Appeal was held on a rolled-up basis on Monday 23 February. The Court of Appeal allowed the appeal and granted Mrs Townsend leave to bring her application relating to Mr Barnor’s medical treatment. The Court of Appeal ordered that the matter proceed to a best interests hearing in the Court of Protection, which was listed for 27 February. The Court of Appeal refused to grant interim relief under section 48 Mental Capacity Act 2016 pending the best interests hearing. Mr Barnor passed away on the morning of 27 February, before the Court of Protection hearing. The Trust now appeals to the Supreme Court against the Court of Appeal’s decision to give Mrs Townsend leave to make an application under s50 Mental Capacity Act 2005. Mrs Townsend cross-appeals against the Court of Appeal’s decision not to order interim relief under section 48 Mental Capacity Act 2016.