A Mental Health Trust v ER & Anor [2021] EWCOP 32

Judgment concerning medical treatment for a 49 year old woman - ER -  who has anorexia nervosa and whose physical condition is declining. The judge had to decide whether she has capacity to make decisions about her treatment and, in the light of that, to determine her best interests.

The applicant and the OS said that ER lacked capacity and that she should not be forced to have treatment against her wishes. Lieven J said that this may have been a straightforward matter but a discussion she had with the patient revealed ER to be articulate and insightful into her condition and that she may have capacity regarding litigation and treatment. Accordingly, she requested a second opinion on capacity before proceeding to decide the case.

Although the decision may be viewed as academic, given that everyone, in respect of best interests, agrees to what conclusions the judge should reach, Lieven J says at [31] that:

“It is also right to acknowledge that it might strongly be in ER's interests to be thought not to have capacity as it allows the Court of Protection to have continued oversight of the case, which itself can provide more focus on the services that she needs. However, capacity and autonomy are such important principles, that lack of capacity cannot be assumed for the sake of expediency. I cannot fail to engage with the issue in detail, and as stated above, it is of course the case that if ER has capacity, the Court of Protection has no jurisdiction.”

However, given that the treating consultant has long experience of ER and her disordered thinking the judge should be “be very slow to depart” from their view especially when backed up by the evidence from Dr Cahill, who provided the second opinion, and was “convinced that ER's thinking is distorted by issues regarding her body image and that she is incapable of weighing up the information.” 

In the light of these, and other factors, Lieven J concludes that ER does not have capacity to make decisions about her treatment (though with ‘considerable reluctance’) and then declares that it is not in ER’s best interests to be forced to have treatment. However, she also states that the patient should receive better support in the coming months and so approves a short term care plan to be settled at a future hearing. 

Read the full judgment on Bailii.
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