East Suffolk and North Essex NHS Foundation Trust v DL and Norfolk and Suffolk NHS Foundation Trust
Summary
In the first reported Court of Protection decision by the newly-appointed Ms Justice Henke, she considered the sad case of DL, a woman in her 30s who was detained in a psychiatric intensive care unit under s.3 Mental Health Act 1983. As Henke J noted, “DL has a mild learning disability, complex PTSD, a dissociative disorder and an Emotionally Unstable Personality Disorder at a borderline level. She has a history of violent behaviours towards herself and others, including those caring for her” (paragraph 6).
The judgment records at paragraph 7 that “since about August 2023 DL has been restricting her intake of nutrition and hydration. Her current intake is incompatible with life. It is accepted by all parties before me that without intervention DL will die. All parties agree that DL wishes to live. It is the treatment plan which will sustain her life which is in dispute.” By early October 2023, DL was estimated to have a BMI of 17, and was described as emaciated and dehydrated. At that time, DL was expressing a wish to die. A consultant gastroenterologist attended on her, and considered she would be at risk of deterioration or potential death if refeeding did not start within 48 hours; it was proposed that this occur while she was sedated on a physical intensive care unit. This did not occur, and a series of meetings took place over the coming weeks, which did not result in a treatment plan for her.
This application was made on an out of hours basis on 21 October 2023 by the mental health trust (Norfolk and Suffolk Trust), though the acute Trust (East Suffolk and North Essex Foundation Trust) which would be delivering the refeeding was substituted as the applicant.
By the time of the hearing, DL was continuing to decline food and was drinking approximately 100ml water daily. It was agreed that this was not sufficient to sustain life, and DL was now consistent in her view that she wished to live; due to her continued refusal of food and the period of time she had been without food, this would require a formal refeeding plan. The court was initially invited to choose between two available options:
a) Restraining DL (physically and/or chemically) to insert and then maintain a NG tube in place to enable regular bolus feeding; or
b) Feeding DL via a NG tube under general anaesthetic with an endotracheal tube being used, to prevent asphyxiation.
DL’s brother and sister participated in the proceedings, and set out their support for DL to be refed under sedation. They voiced strong opposition to DL being fed via an NG tube under restraint in light of a series of hospital admissions over the last four years that DL has found traumatic. DL had also told them she wanted to ‘sleep and wake up better’ (a comment which she also made when meeting with the judge) which they felt was in accordance with refeeding under sedation. DL took broadly the same view as her siblings when speaking to the court, stating that she wanted to go to hospital to get better, and was very clear that she did not want to be touched or have people holding her.
The court heard from DL’s responsible clinician under the Mental Health Act, a consultant gastroenterologist and a consultant in Intensive Care Medicine and Anaesthetics in the acute trust. All of these were DL’s treating clinicians or those who would have responsibility for her care when the refeeding plan commenced rather than external experts. The evidence from the responsible clinician set out that refeeding DL under restraint with an NG tube would be traumatic given DL’s history. The responsible clinician took the view that this proposal was unrealistic, as DL is very likely to remove tubes and cannulas repeatedly.
The clear preference of the gastroenterologist and Intensive Care consultant was to refeed DL under restraint, as they felt that DL did not require ITU-level care, that the risks of a long-term general anaesthetic to deliver re-feeding under sedation were considerable (including trauma caused by post-ITU syndrome). The intensive care consultant in particular felt that other ward-based options should be attempted before sedation under general anaesthetic to avoid a wide range of potential complications which may arise (including a significant risk of circulatory collapse and lung injury). The view of the gastroenterologist and intensive care consultant was that it was in DL’s best interests to attempt a stepwise approach, and only refeed under a general anaesthetic if refeeding under restraint were unsuccessful to avoid the high risk of complications which would accompany the plan. However, the acute trust was willing to provide refeeding under sedation if the court found it to be in DL’s best interests. The evidence was also clear that DL was at risk of grave harm or death if no intervention were made.
Following the evidence, the two proposed treatment plans were amended:
20. Shortly before court commenced on 26 October 2023, the applicant filed two fresh treatment plans. They were to be read in a linear fashion. The first was a refeeding treatment plan via a NG tube. The plan proposed elective admission to a side room on a ward of the Ipswich hospital, physical restraint to enable IV access and then initial chemical restraint /sedation to a level where DL requires minimal physical restraint. The last paragraph of the plan reads: "If DL is unable to be safely managed on the ward she will be escalated to ITU. Escalation will require sedation and a PICC line." The escalation plan to ITU confirmed deep sedation and the insertion of a PICC line to enable parenteral feeding. Both the treatment plan and escalation plan set out the benefits and burdens of each plan. I have factored those balances into my decision making.
The acute trust continued to prefer a linear approach of attempting refeeding without a general anaesthetic, but accepted that if the court “found the treatment plan on the ward to be as a matter of fact unmanageable, then the court could proceed to consider the escalation plan to be in DL's best interests” (paragraph 22). The mental health set out that it was ‘moving towards neutrality’ on the evidence of the acute trust, but her Responsible Clinician felt that “[f]rom a psychological perspective, Dr Axford considered that [the second option] minimises the risk of further trauma for DL and maximises the welfare outcome for DL going forward” (paragraph 23). The Official Solicitor considered that NG re-feeding under restraint would not work and was not a realistic option, and thus the second option should be pursued (also emphasising the likely traumatising impact of this option if it were pursued).
Citing JK v A Local Mental Health Board [2019] EWHC 679 (Fam), A Healthcare and B NHS Trust v CC [2020] EWHC 574 (Fam) and An NHS Trust v Dr A [2013] EWCOP 2442, Henke J considered “that the Court of Protection has jurisdiction in relation to DL and is the appropriate forum for making best interest decisions in relation to the treatment proposed to feed and hydrate her” (paragraph 27).
Henke J readily concluded that DL lacked capacity to make decisions in relation to her nutrition and hydration.
In relation to best interests, Henke J considered that the key issue was whether the proposal to refeed DL by NG tube under restraint was realistic. Henke J noted that although DL:
35. […] is weakened by her malnutrition and dehydration, she continues to be held in a segregation unit on PICU as a result of past assaultive behaviours. She has no contact with other patients because it continues to be unsafe for her to do so. In her statement dated 21 October 2023 Dr Axford's evidence, which was not challenged, was that as of that date DL was still assaulting staff members. Her aggressive behaviours mean that it continues to be unsafe to weigh DL. DL continues to need a high staff ratio.
36. I also take into account that DL is adamant that she does not want a NG tube and that she has stated she will pull it out. DL has also forcefully stated that she does not want to be placed on a ward and that if she is placed there against her will- she will kill, kill , kill. I find that there is cogent evidence before me upon which I can and do find that there is a very real and high risk that if DL is subjected to such actions against her will, she will cause physical harm to herself and others.
37. I also accept the evidence of DL's siblings that DL's last admission to a ward in a general hospital ended disastrously. I have no doubt the intentions at that time were good, but the effect was to cause further harm to DL.
Henke J also noted that DL “does not like to be touched and held. Attempting to restrain her against her will is likely to aggravate her and her presentation. Dr Axford's evidence to me was that trauma was at the root of DL's disorders. Physically restraining her is likely to trigger her responses. According to Dr Axford, attempting to treat DL under restraint simply will not work. Physical restraint will only cause DL to deteriorate. Further chemical restraint is unlikely to be of value because the drugs and dosages that can be used by reason of her frailty are unlikely to be sufficient” (paragraph 39).
Henke J found that, while she could appreciate the views of the acute consultants in favouring an incremental approach, “[t]here is an inevitability in this case that the treatment plan would be unmanageable from the start and the escalation plan triggered. I find that even to attempt to implement the treatment plan would present a significant risk of harm to DL. She is likely to be traumatised by the attempt which I find is highly likely to fail” (paragraph 41).
Henke J thus adopted the second plan (as revised following the evidence) as being in DL’s best interests, noting in particular the cycle of hospital admissions that DL had found to be traumatising, and that there was “a significant risk on the facts of this case that those events will cause additional trauma and cause DL's disorders to be aggravated and her presentation to deteriorate still further. There is a significant risk of DL being caused further psychological or psychiatric harm by any such interventions” (paragraph 43).
Comment
The choice before the court was a stark one, in which the court had to select between two plans which medical professionals considered posed significant risks of harm to DL. The acute hospital consultants were setting out stark warnings that DL may suffer serious and lasting physical harm as a result of refeeding under sedation, including cardiac collapse and damage to her organs, and she may also suffer mental trauma from post-ITU syndrome – this was in no way the ‘easy’ choice for her from a medical perspective. In contrast, both her psychiatrist and family thought that she would suffer severe mental harm from the physically ‘safer’ option of refeeding under restraint. Henke J ultimately took the decision on the basis of the likely infeasibility of refeeding under restraint, electing to avoid what would likely be delays in the start of refeeding which would have been occasioned if the NG-feeding under restraint had been tried without success.
