Cwm Taf Morgannwg Health Board v AB & Anor [2025] EWCOP 24 (T3)

Judgment concerning an urgent capacity assessment  for AB, a 17 year old refusing nutrition.

AB had been taken to Hereford County Hospital (part of Wye Valley NHS Trust) for treatment by her mother on 19 June, discharged that day and readmitted on 21 June as she was not eating at home. On 27 June an out of hours application was made to the Court of Protection but interim declarations were refused as there was a lack of capacity evidence. On 30 June Powys also became involved in the proceedings as they were responsible for the CAMHS service and on 1st July AB was detained under s2 of the MHA. As a result of these now overlapping responsibilities no proper capacity assessment was carried out as ordered, partly as Wye thought the detention would end the COP proceedings.

In this judgment McKendrick J sets out the chronology of these events and the circumstances leading to the inaction of those involved. He also at [26] sets out an email from AB's mother revealing exasperation at the situation reiterated by the judge at [30] 

'Despite the involvement of five public bodies, despite two court orders and notwithstanding the fact this application was urgently issued on 27 June 2025 seeking out of hours best interest orders, the court had no updated evidence on AB's capacity twelve days after the issue of these urgent proceedings.'

He goes on at [35] to list 'a number of concerning features of this litigation which are individually and collectively caused by the public bodies' before deciding at [36]

'I unhesitatingly agree with the submissions of the Official Solicitor that AB's capacity is complex. It needs to be assessed. It may provide a life sustaining framework to enable her treatment, should she lack capacity. Aside from post 1983 Act detention issues, it seems to me that whether AB has capacity to consent or not to forced treatment is a fundamental issue which should be properly taken into account when considering her regime under detention and any treatment without her consent pursuant to section 63 of the 1983 Act. Likewise it is also relevant should the court exercise its parens patriae jurisdiction.'

Read the judgment on Bailii