Judge: Peter Jackson J
Citation:  EWCOP 13
The potential tragedy in this case is summed up in its final paragraph:
W was 28, weighed less than 30kg with a BMI of 12.6. She had spent around 10 of the last 17 years as a hospital inpatient combatting anorexia nervosa: “the process of eating had become something almost sinful”. Detained for 2½ years under section 3 of the Mental Health Act 1983, W did not want to die. She wanted to return to education, with a career path in mind, but: “Currently I am struggling because I have no control over decisions in my life. I have no focus on things I would like in life that I am being denied…”. The most important thing for her was “To make my own decisions and that treatment should not be enforced”. She wanted to go home and felt she could “turn it around”, managing on her own for the first time in her life but with a collaborative plan. She lacked capacity to make decisions about the care and treatment of her severe anorexia. But retained capacity to make decisions about her physical health.
Her responsible clinician “confirmed that she would immediately discharge W from compulsory detention because, while her condition warrants treatment, they have found no way of treating it. If W is to stay on the ward, there needs to be a treatment plan and a goal. It is not otherwise possible for an acute bed to be held open.” The original proposal to re-feed under sedation was now off the table by consent. Peter Jackson J agreed with the unanimous professional view that using coercion to get W to eat was no longer appropriate. It was beyond the power of doctors, family members, and the court to improve her circumstances or to extend her life. And, “The possibility that the withdrawal of inpatient mental health services will bring about a change for the better may not be very great, but in my judgment it is the least worst option from W’s point of view.” The ward had “become a place for talking about eating, and not for eating. If she is capable of making any progress, it will not be as an inpatient.” The treatment “is not beneficial and it is therefore not right for it to continue.” His Lordship accordingly approved the Health Board’s plan that W be discharged from the psychiatric unit into the community with a package of support for her and her family.
These proceedings are another example of clinicians and others exercising roles under the Mental Health Act 1983 using the Court of Protection to ratify their decisions, particularly where the patient’s life is at risk (see also the RC case and also Ms X’s case).
It is entirely understandable why ratification may be sought in some cases, and why the Court of Protection may appear to be the appropriate forum where questions of capacity are in play. However, these cases raise some potentially complex issues – and will do so for so long as there remains (in principle) two entirely separate regimes for the treatment of mental disorder and the treatment of physical disorder in respect of those who may lack the capacity to make the relevant decisions.
It is important to clarify the jurisdictional basis for the court’s decision in the instant case. The decision to discharge W from detention was not one that W could make if she had capacity. That would have been a decision for her responsible clinician, hospital managers, nearest relative, or the tribunal. Furthermore, subject to certain exceptions, s.28 MCA 2005 prohibits the use of the MCA to give a patient, or to consent on their behalf to, medical treatment for mental disorder whilst they are subject to the psychiatric treatment powers contained in MHA Part 4.
In those circumstances, what, exactly, did the Court of Protection do in this case? It was prohibited from making a MCA s.16 decision on W’s behalf in relation to her psychiatric treatment. But, on a strict reading, MCA s.28 does not prohibit the making of declarations under s.15 MCA either as to the person’s capacity in the material domain(s) or as to the “lawfulness or otherwise of any act done, or yet to be done, in relation to that person.”
The judgment itself refers to a treatment plan which was not appended to the judgment, and does not make clear what substantive relief was granted. We are therefore particularly grateful to Andrew Bagchi QC (who acted for the applicant Trust) for clarifying that (a) the Court had a recital whereby it approved the treatment plan “as being in W’s best interests in the current clinical circumstances” and (b) declared under MCA s.15 that “It is in W’s current best interests for the Board to provide treatment to W for her anorexia nervosa and its physical consequences in accordance with the treatment plan annexed hereto”.
We further understand from David Lock QC, who acted for the Official Solicitor, that although W was detained under the MHA 1983 at the time that the application was being considered by the Court of Protection, W’s responsible clinician had made the decision that her detention was shortly to come to an end. Accordingly, the Court of Protection was only asked to make decisions about care and treatment for W after she was discharged from section. It follows that potentially tricky interface issues did not arise on the facts. However, the case does illustrate an important role for the Court of Protection in the context of care and treatment decisions post-MHA-detention which could include, for example, s.117 aftercare issues.