W suffers from anorexia and has had an eating disorder for 20 years. Expert evidence was that in this case it was a severe and unremitting anorexia for which W never enjoyed a period of remission.
The issue was whether it was in W’s best interests to continue to be detained in hospital (she is currently on this admission having been detained now for some 2 ½ years) or whether she should be discharged home with an intensive package of support for her and her family.
Where the person lacks capacity: best interests v preservation of life.
W is aged 28 having suffered from an eating disorder for the last 20 years and having been an inpatient for varying lengths of time from the age of 11 to the current period (now some 2 ½ years), mostly in specialist eating disorder units. Currently W is detained under section 3 of the Mental Health Act. W had the support of her parents and had a tenancy of her own flat not far from where they lived. The court accepted that none of the periods of inpatient treatment had led to enduring progress. She has had periods when she was detained under the Mental Health Act but again no long standing progress was made in respect of weight.
The application by the Health Board was firstly for W to be re-fed under sedation - this would involve W being rendered unconscious for up to 6 months and fed by tube until she gained a BMI of 17.5. This application was not pursued before the court. The second application was that of an immediate discharge to W’s parents’ home and her flat with a full community support programme.
The court considered the Supreme Court decision in Aintree University Hospitals NHS Foundation Trust v James  UKSC 67 and particularly the judgment of Baroness Hale.
The court accepted, having heard the evidence of the Trust, that by reason of her severe anorexia W lacked capacity to make decisions about care and treatment of the condition, although the court accepted she did have capacity to make other decisions which included decisions about physical health.
Jackson J approved the decision of the Health Board not to re-feed W under sedation which would require her to be rendered unconscious for up to 6 months.
The unanimous professional view was that using coercion to get W to eat is no longer appropriate and that a cure is not to be hoped for but what could be achieved would be a limited degree of recovery and the maintenance of that state. A move to an alternative unit was likely to be futile.
Ultimately the court made the order which was the least worst option from W’s point of view, being beyond the power of the doctors, family members or the court to bring about an improvement in W’s circumstances or an extension of her life. The court found that given that most of W’s life had been in an institutional environment, and whilst designed to be therapeutic, for W it was not therapeutic at all. The court was clear to stress that services were not being withdrawn from W but that the present treatment was not beneficial to W and therefore it was not right for it to continue (paragraph 51).
Accordingly given the professional advice, the court discharged W from hospital to receive a package of support for herself and her family in the community.
A heart-rending case but one where the court has bravely assessed W’s best interests in accordance with section 4 MCA. It is a case which very much stands on its own particular facts and interestingly the court noted the decision of Cobb J in A NHS Foundation Trust v Ms X ( by her litigation friend, the official solicitor)  EWCOP 35 which strongly directed to giving the highest priority to preservation of life.
It is also interesting to consider the interplay between the Mental Health Act and the Mental Capacity Act given that at the time of the hearing W was in fact a detained patient under section 3 MHA. The psychiatrist was clear that whilst W’s condition warranted treatment, they had not found a way of providing that treatment - hence the decision to discharge her from hospital.
Sadly the details of the “closely thought out package of support for her and her family“ per para 5 were not set out in this judgment. As a patient detained under section 3 MHA she is entitled to after-care under section 117, which for those who have family members subject to this, the provisions of after-care can vary widely and there can in fact be a paucity of support provided.
Read the full text of the judgment on Bailii
Case summaries on every Court of Protection case & other relevant decisions with links to the full judgment where available.
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