A Midlands NHS Trust v RD & Ors
Summary
RD concerned a 37-year-old woman suffering from an extremely serious and debilitating condition, anorexia nervosa, since the age of 13. The NHS Trust sought declarations that:
- RD lacked capacity to make decisions about her nutritional intake and about her care and treatment in general; and,
- it was in RD's best interests to receive the care in her care plan, specifically that it was lawful not to take any steps towards forcing nutrition against her wishes, notwithstanding that, by so doing, it might in the short-term prevent her death.
During her admission in early 2020, the Trust commissioned a report from Dr Matthew Cahill, a consultant psychiatrist. He agreed with the Trust that RD was suffering from a severe and enduring anorexia nervosa; her prognosis was very poor and her recovery was very unlikely. He recommended two further interventions: (1) discharge on a Community Treatment Order ("CTO") with four visits per day and (2) admission at a specialist rehabilitation unit. The second proved impossible because she did not meet the requirements of the unit – her BMI was too low; she did not demonstrate a willingness to engage and make changes; and she was not physically stable.
The CTO was put in place; but unfortunately, RD had to be readmitted to hospital in July 2020 and she was put on a NG tube. There was some physical restraint, but sedation and extended restraint were rejected due to the risks to her. There was no significant improvement in her BMI; and she was therefore discharged home. The application to court was then made.
It was agreed that she lacked capacity – she understands that, if she does not eat or drink her juices, it will not be good for her but she does not understand that it will lead to her death and that she needs to comply with the treatment.
The clinical evidence was that all viable inpatient treatment options had been exhausted. Any further detention under the MHA 1983 was likely to have a detrimental effect on her wellbeing and make the situation worse. The risk of force-feeding under sedation or physical restraint far outweighed any likely benefit. There was a risk of choking on her own vomit or aspiration pneumonia. It would also cause extreme distress and psychological trauma and, in consequence, also significant physical harm as there was a risk of bone fracture and bruising. The treatment was causing more harm than good. Dr Cahilll agreed and considered that the treatment options were increasingly unethical and disproportionate if administered coercively. He considered that the case was 9 out of 10 on the seriousness scale.
RD agreed with the NHS Trust that, if she refuses treatment, it should not be forced on her, despite the possible grave consequences. She was clear that she wanted to live but that she did not want NG feeding and she did not want to go back into hospital under compulsion. She wanted to be at home.
Moor J observed that RD's life is undoubtedly a life worth living, but that the problem was she had been overwhelmed by her anorexia nervosa. He considered that the cycle of compulsory admissions had been distressing to her and that they had achieved very little. He accepted that everything should be done in the community to convince RD to take, voluntarily, the nutrition, treatments and drinks she needs. He decided to remove the threat of compulsion or compulsory admission from RD; and that he would remove the requirement to have NG feeds, unless she wished to have them. He urged RD to comply with the doctor's recommendations, but authorised and made the declarations sought.
Comment
The hope of all before the court was that RD would follow the doctor's recommendations,, but Moor J feared that if she did not, then she was likely to deteriorate quickly and would need palliative care.
The case also raised two important procedural points. The first in respect of the interaction between the MCA 2005 and the MHA 1983 in cases such as this; and the second was whether the hearing should be heard in private.
The declarations were sought pursuant to both the MCA 2005 and the inherent jurisdiction of the High Court. Moor J cited Mostyn J in Nottinghamshire Healthcare NHS Trust v RC [2014] EWCOP 1317 in respect of the need for an application to court where a decision is taken not to impose treatment pursuant to s.63, where Mostyn J had held that:
In my judgment where the approved clinician makes a decision not to impose treatment under section 63, and where the consequences of that decision may prove to be life-threatening, then the NHS trust in question would be well advised, as it has here, to apply to the High Court for declaratory relief. The hearing will necessarily involve a 'full merits review' of the initial decision. It would be truly bizarre if such a full merits review were held where a positive decision was made under section 63, but not where there was a negative one, especially where one considers that the negative decision may have far more momentous consequences (i.e. death) than the positive one.
Moor J accepted that he should determine the application under both the MCA 2005 and the inherent jurisdiction notwithstanding the fact that he was undertaking a full merits review pursuant to the MCA 2005. That was because he considered that a full merits review under the MHA 1983 engaged public law matters, in particular, the safety of the public (although it is fair to note that it is not obvious that the safety of the public was central to the issues in RD's case).
Alongside Moor J's main judgment, there was also a short decision [2021] EWCOP 36 in respect of the case being heard in private. He determined that in light of the parties' representations, particularly the express wishes of RD that the intensely personal matters should not take place in public, it was appropriate for the case to be heard in private.
