Blurring Clinical and Best Interests Decisions: <i>Townsend</i> v <i>Epsom and St Helier University Hospitals NHS Trust</i>

Healthcare decision‐making under the Mental Capacity Act 2005 (MCA 2005) has long been understood as comprising two distinct, sequential decisions. First, a clinical decision about what treatment options are available. Second, a best interests decision about which (if any) of these options to proceed with. This has achieved parity with the approach to valid consent where a patient has capacity, upholding the legal principle that a particular treatment cannot be demanded where it is not considered clinically indicated. In Townsend v Epsom and St Helier University Hospitals NHS Trust , the Court of Appeal held that this distinction between clinical and best interests decisions is wrong. Rather, all decisions regarding the care and treatment of incapacitated adults, including those characterised as purely clinical, fall within the MCA 2005's best interests framework. This case note considers this decision, exploring three respects in which the judgment gives rise to serious difficulty. First, the inequality created between patients based on capacity. Second, the enforceability problem that is acknowledged but not resolved. Third, the pressure that will now be placed on both the Court of Protection and clinical practice, including the risk that the decision incentivises a litigation‐averse instrumentalisation of patients.