A Mental Health Trust v ER and An NHS Foundation Trust

Judge: Lieven J

Citation: [2021] EWCOP 32

Summary

In this case, Lieven J considered the capacity and best interests of ER, a 49-year-old woman with a diagnosis of anorexia.

ER’s personal history with eating disorders had been a long and difficult one; the condition first emerged in her teenage years, and she had been treated in hospital from at least 2005. She had also had a very difficult personal life, and had served a custodial sentence for a number of years, during which time her anorexia worsened in severity.

From March 2012, ER had been repeatedly admitted to hospital as an informal patient, putting on some weight, and self-discharging quickly. The court noted at paragraph 6 that “[t]here is a pattern of her being unable to maintain anything close to a healthy weight in the community.”

By 2021, ER had also developed serious physical health conditions, including ‘renal failure as well as osteoporosis, endocarditis and klebsiella’ (paragraph 7). Her treating doctor estimated that as a result of her renal failure (for which she had no prospect of receiving a transplant) her life expectancy was limited. She remained severely underweight following her last hospital admission in 2019, with a weight of approximately 35-37 kg. She had also recently overdosed on prescription medication.

The Mental Health Trust and NHS Trust sought declarations that ER lacked capacity to conduct proceedings and to make decisions concerning her anorexia; however, they were in agreement that ER had capacity to make decisions regarding her physical health. The health bodies also sought declarations that “ER should not be forced to accept treatment for her anorexia which she does not wish for, and that she should not be forced to go into a psychiatric hospital or a specialist eating disorder unit against her wishes” (paragraph 10).

ER spoke with Lieven J directly, who found that ER was “very articulate, clear in her views, and in my view, insightful as to her condition. I was concerned that given what I had heard directly, there was material that suggested that ER might well have capacity in respect of the two issues – ligation decisions and decisions regarding treatment for her anorexia” (paragraph 11). As a result, the court heard oral evidence on ER’s capacity in the relevant areas.

Capacity

The court readily accepted the conclusion of ER’s treating clinician that she had capacity to make decisions in relation to her physical health conditions.

The issues in relation to her anorexia were more complex, and the court heard from both ER’s treating psychiatrist (Dr P) and a psychiatrist offering a second opinion (Dr Cahill, who was also a specialist in eating disorders). ER’s treating psychiatrist considered that

16…ER was unable to weigh up the information regarding the severity of her illness, and the impact it has had on her over the last years and in the immediate short term. She was also unable to understand the consequences of malnutrition and the risk that chronic low weight posed to her life. At that stage, Dr P considered that ER did have capacity to conduct proceedings.’

Dr Cahill’s evidence noted that when he met with her, “she was depressed […] she said she had had enough, and felt that dialysis and medical treatment seemed a waste of time. He also records that she said she was very lonely, and that she thought that being around other people might make her feel better about life and improve her mood” (paragraph 19). He considered that ER was unable to weigh up decisions about her anorexia, and particularly, her inpatient treatment. The court recorded relevant portions of his evidence at paragraph 20:

she is not aware of her own disability. There is ample evidence that she lacks the insight into the seriousness of her condition when, at desperately low levels of BMI around 10, believing that a BMI of around 12.8 is safe. It is concerning that when at an incredible low weight, there is evidence of body image distortion, believing she is ‘chunky.’

• While ER was able to understand and weigh up information regarding her renal disease, “there appears to be a lack of insight with regards to the physical health effects of poor nutrition and low weight. There is consistent evidence that [ER] believes she is eating enough to regain weight, despite evidence to the contrary.”
• He noted that ER had never required nasogastric feeding or feeding under restraint – her inpatient treatment had functioned by helping her to be “in a much better place psychologically…we are not considering a ‘traumatic’ admission as such. If anything, [ER] is being looked after, with a reduction in isolation and loneliness.”
• He considered that “at the heart of the condition is a fear of weight gain, a drive for thinness, and a body image distortion. [ER] is likely to be fearful of this, whether she perceives this as relinquishing of control, a threat to her safety, security, and identity, or simply that she cannot tolerate the inevitable weight gain.” ER stated that she did not “find the eating disorder units helpful, but gave reasons around it feeling military, regimented, controlled, and that the other patients were immature. Yet, through all the admissions, [ER] managed to restore weight, and was discharged at a more stable physical position than at admission. Although she talked about being watched in the bathroom as ‘disgusting’ which I do acknowledge, there was no evidence from [ER] that the admissions have been traumatic for her. She even recognised herself that she regained weight and came out ‘stronger.’ Therefore, it is very likely that her anorexic cognitions are driving her decisions regarding admission, and therefore, due to this impairment of the mind, in my opinion she struggles to weigh up the information.”

The court also noted at paragraph 21 Dr Cahill’s finding that ER “has no desire to die and does wish to take steps to avoid that,” which appeared to be in opposition to her rejection of treatment for her anorexia.

The court also considered the evidence of ER’s solicitor, Ms Turner, who was very experienced in the field and considered that ER lacked litigation capacity. ER set out her own views:

22. […] she does not like eating disorder units and sets out, in my view, perfectly rational reasons for this. In particular, that she is much older than other patients and finds their behaviours unhelpful for her condition. She also finds the approach of being encouraged to eat large meals very unhelpful to her.

ER expressed that she would like more support in the community, and felt that more support would be useful to her. She said she was interested in moving a residential placement or supported living, and that she felt lonely living on her own with visiting carers. She was clear she would not wish to be treated as a psychiatric inpatient, but did not want to die, and did want medical help.

The court noted the history of cases considering anorexia in the Court of Protection. Lieven J wrote that she considered the determination of capacity ‘difficult’ and even though there was consensus on ER’s best interests, the issue of whether she had capacity was not academic and should not be ‘fudged’ with a view to the collateral impacts on ER:

31. […] 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.

The court considered that ER was not a ‘normal’ anorexic patient.  “Her renal failure is terminal, and she has a limited life expectancy, so the decisions she makes about not wanting an inpatient admission have to be seen in that context. Treatment would not prolong her life, therefore the views she expressed seemed potentially rational” (paragraph 32).

The court reluctantly accepted the evidence of the psychiatrists that ER lacked “capacity to make decisions about her anorexia treatment and, it follows, litigation capacity” (paragraph 33). Lieven J noted the views of Dr P, and observed that she would be “very slow to depart from the view of a treating consultant psychiatrist, absent any concerns about the closeness of the relationship, which I do not have here” (paragraph 33). The court was further fortified by the analysis of Dr Cahill, a clinician with “long and considerable experience of treating patients with anorexia nervosa and I wholly accept that is experience I do not have.” The court accepted “that there is evidence of unrealistic thinking, especially around her weight levels” and “that there is evidence that ER does not act rationally in respect of some of the decisions she makes around her eating problems” (paragraph 33).

Best interests

In considering best interests, Dr P gave evidence that a best interests meeting had been convened, and it was agreed by all in attendance “that another inpatient admission against ER’s wishes would not be in her best interests, given ER’s strong opposition, and the fact that it is unlikely to have any impact on her renal position (so her physical condition is unlikely to improve significantly), but that it may impact on her mental condition significantly” (paragraph 17). The court agreed with the conclusion

34… […] that it is not in ER’s best interests for her to be forced to accept treatment for her anorexia which she does not wish to accept. In particular, she should not be forced to go into any inpatient hospital and treated against her wishes. In my view, it is plain that this is in her best interests given her renal failure and extreme dislike of eating disorder units and psychiatric hospitals. I also note that this conclusion accords with ER’s wishes and feelings.

The court did emphasise that “it is in ER’s best interests to be given more support in the community’ and ‘the evidence is fairly clear that if she could be moved to a supported living placement where she can have dialysis and more support and company, this could much improve her mood and potentially improve her physical health over the next few months” (paragraph 36). The court listed the matter for a review hearing and joined the local authority and CCG with directions to produce evidence on what support ER could be provided in the community, and consideration of a move to supported living.

Comment

The case is a useful reminder of that the obligation of the court to formally consider capacity and best interests are not vitiated because the outcome would appear to be the same whether the person were found to have capacity or not – here, ER would have chosen to forgo further treatment for anorexia, and her clinicians felt that she should not be obliged to accept it against her wishes.  ER’s capacity in this case was complicated by her serious physical health condition: a decision to forgo anorexia treatment during what appeared to be the last month or year or her life and which she found very unwelcome was one which to outward appearances to would also seem easier to understand. However, the court carefully considered both whether she had capacity, and where her best interest lay, coming up with a slightly different take to what had been proposed: namely, that further information was required of the local authority and CCG to ensure she was being offered support on terms she was willing to accept.

In this case, Lieven J considered the capacity and best interests of ER, a 49-year-old woman with a diagnosis of anorexia.

ER’s personal history with eating disorders had been a long and difficult one; the condition first emerged in her teenage years, and she had been treated in hospital from at least 2005. She had also had a very difficult personal life, and had served a custodial sentence for a number of years, during which time her anorexia worsened in severity.

From March 2012, ER had been repeatedly admitted to hospital as an informal patient, putting on some weight, and self-discharging quickly. The court noted at paragraph 6 that “[t]here is a pattern of her being unable to maintain anything close to a healthy weight in the community.”

By 2021, ER had also developed serious physical health conditions, including ‘renal failure as well as osteoporosis, endocarditis and klebsiella’ (paragraph 7). Her treating doctor estimated that as a result of her renal failure (for which she had no prospect of receiving a transplant) her life expectancy was limited. She remained severely underweight following her last hospital admission in 2019, with a weight of approximately 35-37 kg. She had also recently overdosed on prescription medication.

The Mental Health Trust and NHS Trust sought declarations that ER lacked capacity to conduct proceedings and to make decisions concerning her anorexia; however, they were in agreement that ER had capacity to make decisions regarding her physical health. The health bodies also sought declarations that “ER should not be forced to accept treatment for her anorexia which she does not wish for, and that she should not be forced to go into a psychiatric hospital or a specialist eating disorder unit against her wishes” (paragraph 10).

ER spoke with Lieven J directly, who found that ER was “very articulate, clear in her views, and in my view, insightful as to her condition. I was concerned that given what I had heard directly, there was material that suggested that ER might well have capacity in respect of the two issues – ligation decisions and decisions regarding treatment for her anorexia” (paragraph 11). As a result, the court heard oral evidence on ER’s capacity in the relevant areas.

Capacity

The court readily accepted the conclusion of ER’s treating clinician that she had capacity to make decisions in relation to her physical health conditions.

The issues in relation to her anorexia were more complex, and the court heard from both ER’s treating psychiatrist (Dr P) and a psychiatrist offering a second opinion (Dr Cahill, who was also a specialist in eating disorders). ER’s treating psychiatrist considered that

16…ER was unable to weigh up the information regarding the severity of her illness, and the impact it has had on her over the last years and in the immediate short term. She was also unable to understand the consequences of malnutrition and the risk that chronic low weight posed to her life. At that stage, Dr P considered that ER did have capacity to conduct proceedings.’

Dr Cahill’s evidence noted that when he met with her, “she was depressed […] she said she had had enough, and felt that dialysis and medical treatment seemed a waste of time. He also records that she said she was very lonely, and that she thought that being around other people might make her feel better about life and improve her mood” (paragraph 19). He considered that ER was unable to weigh up decisions about her anorexia, and particularly, her inpatient treatment. The court recorded relevant portions of his evidence at paragraph 20:

she is not aware of her own disability. There is ample evidence that she lacks the insight into the seriousness of her condition when, at desperately low levels of BMI around 10, believing that a BMI of around 12.8 is safe. It is concerning that when at an incredible low weight, there is evidence of body image distortion, believing she is ‘chunky.’

• While ER was able to understand and weigh up information regarding her renal disease, “there appears to be a lack of insight with regards to the physical health effects of poor nutrition and low weight. There is consistent evidence that [ER] believes she is eating enough to regain weight, despite evidence to the contrary.”
• He noted that ER had never required nasogastric feeding or feeding under restraint – her inpatient treatment had functioned by helping her to be “in a much better place psychologically…we are not considering a ‘traumatic’ admission as such. If anything, [ER] is being looked after, with a reduction in isolation and loneliness.”
• He considered that “at the heart of the condition is a fear of weight gain, a drive for thinness, and a body image distortion. [ER] is likely to be fearful of this, whether she perceives this as relinquishing of control, a threat to her safety, security, and identity, or simply that she cannot tolerate the inevitable weight gain.” ER stated that she did not “find the eating disorder units helpful, but gave reasons around it feeling military, regimented, controlled, and that the other patients were immature. Yet, through all the admissions, [ER] managed to restore weight, and was discharged at a more stable physical position than at admission. Although she talked about being watched in the bathroom as ‘disgusting’ which I do acknowledge, there was no evidence from [ER] that the admissions have been traumatic for her. She even recognised herself that she regained weight and came out ‘stronger.’ Therefore, it is very likely that her anorexic cognitions are driving her decisions regarding admission, and therefore, due to this impairment of the mind, in my opinion she struggles to weigh up the information.”

The court also noted at paragraph 21 Dr Cahill’s finding that ER “has no desire to die and does wish to take steps to avoid that,” which appeared to be in opposition to her rejection of treatment for her anorexia.

The court also considered the evidence of ER’s solicitor, Ms Turner, who was very experienced in the field and considered that ER lacked litigation capacity. ER set out her own views:

22. […] she does not like eating disorder units and sets out, in my view, perfectly rational reasons for this. In particular, that she is much older than other patients and finds their behaviours unhelpful for her condition. She also finds the approach of being encouraged to eat large meals very unhelpful to her.

ER expressed that she would like more support in the community, and felt that more support would be useful to her. She said she was interested in moving a residential placement or supported living, and that she felt lonely living on her own with visiting carers. She was clear she would not wish to be treated as a psychiatric inpatient, but did not want to die, and did want medical help.

The court noted the history of cases considering anorexia in the Court of Protection. Lieven J wrote that she considered the determination of capacity ‘difficult’ and even though there was consensus on ER’s best interests, the issue of whether she had capacity was not academic and should not be ‘fudged’ with a view to the collateral impacts on ER:

31. […] 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.

The court considered that ER was not a ‘normal’ anorexic patient.  “Her renal failure is terminal, and she has a limited life expectancy, so the decisions she makes about not wanting an inpatient admission have to be seen in that context. Treatment would not prolong her life, therefore the views she expressed seemed potentially rational” (paragraph 32).

The court reluctantly accepted the evidence of the psychiatrists that ER lacked “capacity to make decisions about her anorexia treatment and, it follows, litigation capacity” (paragraph 33). Lieven J noted the views of Dr P, and observed that she would be “very slow to depart from the view of a treating consultant psychiatrist, absent any concerns about the closeness of the relationship, which I do not have here” (paragraph 33). The court was further fortified by the analysis of Dr Cahill, a clinician with “long and considerable experience of treating patients with anorexia nervosa and I wholly accept that is experience I do not have.” The court accepted “that there is evidence of unrealistic thinking, especially around her weight levels” and “that there is evidence that ER does not act rationally in respect of some of the decisions she makes around her eating problems” (paragraph 33).

Best interests

In considering best interests, Dr P gave evidence that a best interests meeting had been convened, and it was agreed by all in attendance “that another inpatient admission against ER’s wishes would not be in her best interests, given ER’s strong opposition, and the fact that it is unlikely to have any impact on her renal position (so her physical condition is unlikely to improve significantly), but that it may impact on her mental condition significantly” (paragraph 17). The court agreed with the conclusion

34… […] that it is not in ER’s best interests for her to be forced to accept treatment for her anorexia which she does not wish to accept. In particular, she should not be forced to go into any inpatient hospital and treated against her wishes. In my view, it is plain that this is in her best interests given her renal failure and extreme dislike of eating disorder units and psychiatric hospitals. I also note that this conclusion accords with ER’s wishes and feelings.

The court did emphasise that “it is in ER’s best interests to be given more support in the community’ and ‘the evidence is fairly clear that if she could be moved to a supported living placement where she can have dialysis and more support and company, this could much improve her mood and potentially improve her physical health over the next few months” (paragraph 36). The court listed the matter for a review hearing and joined the local authority and CCG with directions to produce evidence on what support ER could be provided in the community, and consideration of a move to supported living.

Comment

The case is a useful reminder of that the obligation of the court to formally consider capacity and best interests are not vitiated because the outcome would appear to be the same whether the person were found to have capacity or not – here, ER would have chosen to forgo further treatment for anorexia, and her clinicians felt that she should not be obliged to accept it against her wishes.  ER’s capacity in this case was complicated by her serious physical health condition: a decision to forgo anorexia treatment during what appeared to be the last month or year or her life and which she found very unwelcome was one which to outward appearances to would also seem easier to understand. However, the court carefully considered both whether she had capacity, and where her best interest lay, coming up with a slightly different take to what had been proposed: namely, that further information was required of the local authority and CCG to ensure she was being offered support on terms she was willing to accept.

Best interests - Medical treatment, Mental capacity - Litigation, Best interests, Mental capacity 30th April 2021