A NHS Foundation Trust v Ms X (by her Litigation Friend the Official Solicitor) [2014] EWCOP 35

Ms X suffered from a severe form of anorexia nervosa.  She also suffered from psychological dependence on alcohol which had caused irreversible liver disease and renal failure.  The combination of those conditions was medically acutely difficult to manage.  For many years Ms X had required repeated specialist in-patient hospital admissions where she had been force fed.  Those admissions only brought about short term benefits because once she was discharged back into the community she binged on alcohol.  When Ms X had been free to make her own choices, she consciously lost weight until her weight fell to a critical level and she was then admitted back into hospital for force feeding treatment.


Ms X was in extremely poor health, malnourished and consuming alcohol in excess.  The doctors who had treated Ms X in the past regarded it as “clinically inappropriate, counter-productive and increasingly unethical” to admit her for further compulsory feeding.  The purpose of force feeding an anorexic patient is to keep that patient alive whilst that patient participates in psychotherapy to investigate and treat the underlying cause of the anorexia.  This had not worked for Ms X.  She had been admitted to hospital over 45 times, sometimes for many weeks or even months.  She had received treatment at some of the most specialised eating disorder units in the country. The medical professionals involved with the treatment of Ms X believed that not only would medical treatment be painful, invasive and wholly unwelcome to Ms X, it would also be pointless in terms of achieving long term treatment.


The NHS Trust applied to the court for declarations that:


i)                    It was not in Ms X’s best interests to be subject to further compulsory detention and treatment of her anorexia nervosa, whether under the Mental Health Act 1983 or otherwise, notwithstanding that such treatment may prolong her life.


ii)                   It was in her best interests, and should be lawful, for her treating clinicians not to provide Ms X with nutrition and hydration with which she does not comply.


These declarations were sought in the context that Ms X lacked the capacity to make a decision about treatment.  The NHS Trust did not seek an authorisation to withhold treatment.  Treatment remained on offer if Ms X wished to receive it.  Mrs X supported the application made by the NHS Trust.


Having heard evidence from a consultant psychiatrist and psychotherapist who had been treating Ms X since 2009 and Dr Tyronne Glover, an expert in eating disorders, the court was entirely satisfied that Ms X lacked the capacity to litigate and to make decisions about her anorexia nervosa.  The medical experts drew a clear distinction between Ms X’s capacity to make decisions around her anorexia nervosa and her use of alcohol.  Both doctors considered that Ms X had the capacity to make decisions about alcohol and the court accepted those opinions.  Therefore, the court’s jurisdiction was limited to making best interests decisions only in relation to the treatment of anorexia nervosa and not in relation to the management or treatment of her alcohol dependence.  Mrs X had made an Advance Decision to Refuse Treatment in relation to future treatment of her liver disease and the court found that there was no doubt that Ms X had mental capacity to make this Advance Decision.


Mr Justice Cobb referred to Baroness Hale’s statement in Aintree University Hospital NHS Foundation Trust v James [2013] 3 WLR 1299 (at paragraph 35) that:


“…the starting point is a strong presumption that it is in a person’s best interests to stay alive…this is not absolute.  There are cases where it will not be in a patient’s best interests to receive life-sustaining treatment.” 


Mr Justice Cobb found that a hospital admission would impose a considerable restriction on Ms X’s liberty, interfered with her Article 8 rights and would reduce her quality of life considerably as she would be removed from her friends and family.  The risk that she would attempt to, or take her own life, was high.  The medical records were littered with references to previous overdoses and suicides.  The court found, therefore, that any treatment for her anorexia was likely to provoke subsequent increased, sustained and dangerous alcohol consumption which would (in the medical view) hasten Ms X’s death.


If Ms X were to be admitted hospital and resisted re-feeding, then a degree of restraint would be needed.  This would cause her considerable distress.  The court found that in this respect, Articles 3 and 8 of the ECHR were prominently engaged.  Repeated force feeding over a long time, clearly against her expressed wishes and with the use of physical restraint, amounted to inhuman or degrading treatment and a severe interference with her private life and personal autonomy.


Dr Tyronne Glover was asked to explain why Ms X’s case was different to A Local Authority v E and others [2012] COPLR 441 and The NHS Trust v L and Others [2012] COPLR 139.  Whilst emphasising that each case is situation-specific, he drew attention to the following key points:


i)                    In the case of Re E the chance of successful treatment (and full recovery) for E was considered to be in the region of 20% to 30% and that would only be achieved by forcible feeding by nasogastric tube under physical or chemical restraint for at least a year.  In the instant case, the chance of a successful outcome was 5% or less. This would require forcible feeding, by restraint if necessary, for a period of up to two years.


ii)                   In Re E there was treatment available that had not yet been tried, and there was a specialist eating disorder unit prepared to undertake the treatment.  Ms X had been treated in the past and then relapsed.  There was no untried treatment in this case.  All treatments had been offered and had failed.


iii)                 The situation of Ms X was not as dire as the situation of Ms L in The NHS Trust v L and Others [2012] COPLR 139.  No patient with a BMI of 7 kg/m2 (Ms L’s BMI) was reported to have survived such an enforced re-feeding regime whilst in intensive care.


Following the guidance offered by Baroness Hale in Aintree, the court considered the welfare of Ms X “in the widest sense”.  Having fully reviewed the circumstances of the case the court reached the clear conclusion that it should not compel treatment of Ms X’s anorexia and granted the relief sought by the applicant Trust.


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