Decision-making about life-sustaining treatment for patients with severe brain injury

Kitzinger, Jenny ORCID: https://orcid.org/0000-0002-2593-8033 2026. Decision-making about life-sustaining treatment for patients with severe brain injury. [Discussion Paper]. Oxford: Green Templeton college, Oxford University. Available at: https://www.gtc.ox.ac.uk/wp-content/uploads/2026/0...

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Abstract

Executive Summary A workshop was organised for 19th March 2026 to bring together key experts to spend a day discussing strategies for improving decision-making about life-sustaining treatment for severely brain-injured adult patients (in the context of the law in England and Wales. The intention was to focus on how ‘clinical decisions’ were made about what treatments were on offer, and, if treatments were on offer, then how ‘best interests’ decisions were made – and to focus on how to ensure both forms of decisionmaking were robust and transparent and that there was good communication with patients’ families. The March workshop had been planned since Autumn 2025 but turned out to be particularly timely because on the 3rd March 2026, the Court of Appeal (the highest court within the Senior Courts of England and Wales) handed down the - Townsend v Epsom and St Helier NHS Trust [2026] EWCA Civ 195 judgment. This prompted an explosion of interest in the medico-legal communities – particularly around the statement that ‘There is no carve out for “clinical decisions”.’ (para 69) and the indication that if families disagree with a decision not to offer a treatment to their relative (who lacks capacity to make decisions about their treatment) then the relevant NHS commissioning body should fund and make an application to the Court ofProtection.This judgment appeared inconsistent with long-established principles of medico-legal decision-making and the workshop was rapidly adapted to engage with the Court of Appeal judgment. The eighteen workshop participants included nine intensivists and neuro-rehabilitation consultants and five barristers and solicitors, all with extensive experience in lifesustaining treatment decision-making (in the clinic and/or in the courts) alongside participants with policy roles, social science research or personal family experience. The discussion raised a wide range of concerns about the potential effect of the Townsend v Epsom judgment on the operation of the Court of Protection [CoP, on clinical practice and on families and patients. Concerns expressed by some participants included: • the way in which the judgment fitted, or not, with other case law and the scope of the judgment and how it had been written. • the challenges of referring all the potentially relevant cases to CoP given the huge number of decisions clinicians make every day about what treatments are, or are not, appropriate to offer, and the pressures this would put on the legal process. • the impact any increase in applications to the CoP would have in terms of escalating legal costs for the NHS and delays in decision-making, alongside theadditional demands on clinicians’ time, and the stress for clinical teams involved. • the potential inequalities the judgment might create between patients with and without capacity to consent to treatment • the potential of the judgment to distort doctors’ decision-making (e.g. complying with demands for more treatment in order to avoid court proceedings). • the mismatch between the process and timescale of clinicians’ decision-making at the bedside and the timescale of court proceedings, even in ‘emergency applications’ – particularly for patients in acute or terminal conditions. • the questionable value of CoP intervention when the court could not, in any case, order doctors to provide a treatment they were not prepared to offer. Although participants recognised that some families would see the judgment as empowering (and through them empowering their relative), some had concerns about possible impacts including: • raising unrealistic hopes for families that a judge could change what treatment was on offer. • entangling friends and relatives in legal proceedings when they could be spending precious last moments with their loved one. • mis-leading people about the potential value of a medical intervention • making families carry more guilt about the decision and their involvement in agreeing to, or contesting it (whether the decision was made to give/continue or withhold/discontinue life-sustaining treatments) and • risking over-treatment of patients, and families facing the consequences of their relative left in a condition the person would not have wanted. Some workshop participants did not view the Townsend v Epsom judgment as improving outcomes for patients. Additional discussion during the day explored: • the challenges around writing professional guidelines about life-sustainingtreatments. • the process of making and defining clinical judgement about what treatments should/should not be on offer. • the timing of decisions to discontinue (potentially) life-sustaining interventions • resource issues and policy decisions. • the importance of good communication and documentation about the patient's condition, consultation about their values and beliefs, and clarity about decision-making processes • and approaches to addressing disputes. The full report addresses all these related issues in more depth.

Item Type:	Report (Discussion Paper)
Status:	Published
Schools:	Schools > Journalism, Media and Culture
Publisher:	Green Templeton college, Oxford University
Date of First Compliant Deposit:	1 September 2026
Last Modified:	02 Sep 2026 08:15
URI:	https://orca.cardiff.ac.uk/id/eprint/189309

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