Saturday, 16 June 2012

Court of Protection ~ Anorexic patient ~ Capacity to refuse treatment

Updated 19th June and 20th June

"We only live once – we are born once and we die once – and the difference between life and death is the biggest difference we know" - Peter Jackson J  

In the Court of Protection, Peter Jackson J has given judgment in A Local Authority v E [2012] EWHC 1639 (COP).  See The Guardian 15th June 2012 - "Anorexic woman should be fed against her wishes, judge rules" - and listen to Dr Tony Calland of the British Medical Association Ethics Committee.

Paul Bowen QC and Stephen Broach (of Doughty Street Chambers) appeared for the Local Authority; Christopher Johnston QC and Susanna Rickard (of 3 Serjeants Inn) were instructed by the Official Solicitor and represented the patient who is referred to as E.  The Health Authority was represented by Mark Mullins (Outer Temple Chambers).  E's parents represented themselves and, according to the judge, they "contributed significantly to the hearing without giving formal evidence, by giving their views and by asking well-chosen questions of the doctors." 

Doughty Street Chambers have a report on the case and a link to Peter Jackson J's judgment - here.  This is a very well-written judgment which merits a complete reading.  The judgment is an application to the particular case of existing law but a number of important points are made by the judge.  The judgment is also available via Bailii - Re E (Medical treatment: Anorexia).

The judge had to decide
  whether it was in the best interests of E - (a woman, aged 32, with severe anorexia) - to be allowed to die even though she was neither terminally ill nor in a persistent vegetative state.  E suffered from a number of conditions described as "a triad of anorexia, alcoholism and personality disorder."  When the local authority brought the case to court, E was close to death and was following a palliative care pathway, agreed by her family and treating clinicians.   The poignant history of E's life is set out at paragraphs 16 to 22 and her medical conditions are described at para.23. 

Decisions on three issues were required (para 46) and it was necessary to take them in the following order.  

(1) Did E have the mental capacity to make decisions about her treatment?  The judge answered NO - paras. 47-53.  

(2) Did E have mental capacity when she made an advance decision in October 2011.  Again, NO - paras. 54-70.  Interestingly, it may have been the case that E had acted inconsistently with her purported advance decision but the judge did not have to decide this point since he had held that the advance decision was invalid for lack of capacity.   

Para.65 is worthy of note by practitioners in relation to assessing the mental capacity of a patient who wishes to make an advance decision.  The judge said: "Against such an alerting background, a full, reasoned and contemporaneous assessment evidencing mental capacity to make such a momentous decision  would in my view be necessary.  No such assessment occurred in E's case and I think it at best doubtful that a through investigation at the time would have reached the conclusion that she had capacity."

(3) Was it in E's best interests to receive life-sustaining treatment in the form of forcible feeding with all necessary associated measures.  The answer was YES and this is addressed from para. 71 onwards.  

Making the decision as to the best interests of a person was not a mechanistic exercise but was an intuitive process with weighty factors on each side of the scales (para. 129).  At para. 114 the judge summed up the factors involved in the "best interests" decision.  On the facts of this case, the legal presumption in favour of saving life was not displaced.  There was a possibility that the treatment now available (and for which funding was now available) would succeed.  The judge seems to have been influenced by the commitment of the health authority to a treatment plan.  In the final paragraph of his judgment, the judge indicated that the authorities were now honour-bound to see through the provision of resources in the short, medium and long term.  "Had the authorities not made that commitment, I would not have reached the conclusion that I have."

In relation to the law, Peter Jackson J had the benefit of Baker J's comprehensive survey of the law relating to withdrawal or withholding of life-sustaining treatment in W v M and others [2011] EWHC 2443 (COP).  Nevertheless, Peter Jackson J set out, in a straightforward manner, the relevant law at paragraphs 7 to 15 of his judgment and he stated that - "the court has to approach its task in a highly individualised way, focusing on the situation of the individual concerned" (para 12).   European Convention rights engaged were Articles 2, 3 and 8.  On these see the judgment at paras. 119-123 (Art 2); 126 (Art 3) and 124 (Art 8).

Some of the observations of the judge:

It is interesting to note the judge's observations (para. 17) relating to how E had been "treated in the community" as a result of the failure of the residential placements and the unavailability of further funding.  This led to a ‘revolving door’ series of emergency admissions for medical and psychiatric care, often after she was found in a collapsed state after drinking as much as a bottle of spirits a day.   A person such as E, with anorexia of the most severe and intractable kind, is incapable of recovery without major medical intervention (para. 26).

The judge noted - (at para. 40) - that the case ought to have been brought to court much sooner since her condition has been seen by those treating her as raising an ethical predicament since at least 2009.  An earlier application might have allowed E to participate directly in the proceedings if she so chose.  He was also concerned that - "in a case with legal, moral and ethical dimensions, it is important for the court to ensure that it is informed of the actual practical possibilities and not to be drawn into theorising" - para. 41.  (My emphasis).  

Naturally, one hopes that E will make a recovery with the intervention now on offer.  The financial cost will be high and the treatment lengthy extending, possibly, to a number of years.  Annual costs of £200,000 to £300000 are referred to - (para. 93).

It seems likely that this case will be the subject of posts on other blogs and articles.  I will link to any which I find or which are drawn to my attention.


Ms B v A NHS Hospital Trust [2002] EWHC 429 (Fam) - Judgment of Dame Elizabeth Butler-Sloss (President of the Family Division) - note: Peter Jackson QC appeared for the Official Solicitor

Advance Decisions to refuse treatment - NHS Guide for Health and Social Care Professionals

Document referred to in the judgment - Royal College of Psychiatrists - MARSIPA - Management of Really Sick Patients with Anorexia Nervosa

Update 19th June - Daniel Sokol - As hard as it gets: the case of anorexic E and the right to die - The Guardian 19th June

Update 19th June - Richard Mumford - Judge orders that anorexic woman can be force fed: analysis - UK Human Rights blog

1 comment:

  1. 22 August 2012


    I believe that the Mental Capacity Act 2005 sets up a moral maze which makes more complicated the law on advanced directives.

    Before this law came into being there was the so-called Liverpool Pathway which was used both surreptitiously and openly.

    Today there is the announcement of the death of the tragic person who sought to be allowed to end his life without his family being prosecuted. He failed in the Courts last week to change the law.

    Right to life is rightfully sacrosanct. But is the right to die equally sacrosanct?

    People who choose to starve themselves knowing that they will die are they to be denied their free will? Are they automatically be deemed to be incapacitous under the Mental Capacity Act 2005? And yet doctors do place patients on such a pathway of "palliative care only" and are not found guilty of murder or manslaughter.

    Wherein is the difference? It is only of degree I aver.

    Mental Capacity is deemed to be the default position of all people even those who have serious mental health disorders and others with learning disabilities and handicaps can be helped with the Mental Capacity 2005 Toolkit to be ENABLED to make their OWN decisions whether they be wise or not, is irrespective. If they can hold information, weigh up evidence and make a choice, then what their decision is is theirs and must be taken as final.

    It is not for the assessor to determine whether or not the person's decision is unacceptable as being unwise, for that removes the whole point of the Mental Capacity Act 2005.

    Here we have someone who wished to die but was forced to take treatment. Will this bring a plethora of court orders where people will be forced to stop smoking so as to prevent getting lung cancer, or forced to stop drinking alcohol to stop getting liver disease, or forced to stop mountaineering so as to avoid the potential injury of falling and sustaining a broken leg?

    In the end how risk-averse are we to become as a nation? If a person dashes in front of oncoming traffic and is deemed to have acted recklessly, does the person's companion who did nothing to stop him/her running into the road then become criminally liable for neglect and ill-treatment of a person who clearly by their actions MUST necessarily have been mentally incapacitous in the moment of the reckless act?

    This is a serious question for the Mental Capacity Act 2005 does not distinguish between people who are ALREADY deemed to have a PROVEN mental incapacity signed and witnessed by a doctor treating that person, and anybody minding their own business who might temporarily be determined retrospectively to have had reduced insight into his/her mental state and therefore any actions committed by this person then becomes the FAULT of the person accompanying him/her who did nothing to stop him/her from doing something deemed retrospectively to be unwise.

    Rosemary Cantwell