North East London NHS Foundation Trust v Beatrice and Edward
This case concerned ‘Beatrice,’ who was 50 years old; the second respondent, ‘Edward’ was her father. An application was made by North East London NHS Foundation for declarations that a palliative care plan for Beatrice which would withdraw active psychiatric treatment was lawful and in her best interests.
Beatrice had had a diagnosis of anorexia nervosa since she was 14 years old and had a more recent diagnosis of autistic spectrum disorder. The judgment noted that she was highly intelligent, having obtained post-graduate degrees, with a variety of interests, and was “enthusiastic about giving her time to help other people” (paragraph 5).
Beatrice was profoundly unwell due to her anorexia, with a BMI of 11.5, and with a daily calorific intake of 260 calories. This followed a period during which she had not eaten at all. Beatrice appreciated that she would likely die if she continued with this pattern of highly restricted food intake. She had also stopped taking vitamins and her heart medication. The judgment records that “[s]he now says that she cannot continue the fight” against this condition paragraph 6).
Beatrice had requested to be taken to a hospice to die, and had rejected all food and drink, in late April 2023. She changed her mind for a brief period of time and began ingesting the minimal amounts noted above, but by the time of the hearing, she was again expressing a wish to go to hospice. In light of her change in position, Mostyn J did not make s.16 MCA orders, but made determinations solely as to Beatrice’s capacity under s.15 MCA with a view to restoring the matter approximately two weeks later.
The Trust submitted that Beatrice lacked capacity to make decisions regarding her care and treatment for anorexia because “the effect of the disease is so powerful that it renders Beatrice almost, if not actually, delusional so that she believes she is overweight and fat. The applicant argues that this belief derives from an impairment of the mind and prevents Beatrice from using or weighing the treatment options for someone in her position” (paragraph 19). Beatrice considered that she ‘might’ have capacity to make these decisions, though Mostyn J considered that this sent a subliminal message that Beatrice did not actually think she had capacity in these domains. Mostyn J had evidence from both Beatrice’s treating psychiatrist and an independent expert concluding that she lacked capacity to take care and treatment decisions regarding her anorexia. Mostyn J concluded that
28. […] there is no doubt at all that Beatrice cannot weigh the information relevant to a decision about the options for her care and treatment. The weighing process requires her to recognise that into the scales go the stark fact that if she does not eat and hydrate normally, and very soon, she will die. I agree with Mr Sachdeva KC that for the purposes of the test there is nothing else to weigh. There are, pace Hedley J, no various, inter-relating, parts of the argument. There is nothing to put on the side of the scales objectively in favour of starvation
Mostyn J’s considered this inability to weigh was caused by her anorexia nervosa, returning to an earlier metaphor that anorexia had been a ‘terrorist’ which had ‘invaded’ and ‘occupied’ Beatrice’s mind for most of her life:
34. …The evidence showed beyond any doubt at all that the key weighing component within Beatrice’s decision-making process was not merely rendered faulty by the condition but rather that the condition caused it entirely to disappear.
Mostyn J also made findings on litigation capacity, finding that Beatrice was necessarily unable to conduct proceedings relating to an issue on which she lacked substantive capacity:
36…I remain convinced, as a matter of logic (I forebear from saying common sense), that if Beatrice is robbed by the condition of the key element in the decision making process of weighing the relevant information, then she will be equivalently disabled from formulating and making submissions to a judge as to how he or she should undertake that very weighing exercise: see An NHS Trust v P (by her litigation friend, the Official Solicitor)  EWCOP 27 at .
37. The test for litigation capacity surely has to be premised on Beatrice acting in person for, if that were not so, there would have to be an invidious debate as to the quality of the legal team hypothetically engaged by her. I am not getting into that in this case as I am completely convinced that Beatrice, even if represented, would not be able to formulate valid instructions to her lawyers by virtue of the impact of the condition to which I have referred above.
Mostyn J offered criticism of Hayden J’s formulation of litigation capacity in Lancashire and South Cumbria NHS Foundation Trust v Q  EWCOP 6, in which the latter had found that “the court could take into account when analysing a hypothetical instruction by P of hypothetical lawyers that P would not be “required” to instruct her advisers in a particular way, and that “like any other litigant, in any sphere of law, [she] may instruct [her] lawyers in a way which might, objectively assessed, be regarded as contrary to the weight of the evidence”(paragraph 38). Mostyn J stated that:
39. I confess to finding the intellectual process which I should undertake under this formulation to be extremely difficult. I think it is being suggested that even though I have found that the anorexia has robbed Beatrice of the ability to weigh the relevant information she nonetheless may have the capacity to litigate that very issue because she has the facility to give completely unrealistic and objectively untenable
instructions to her hypothetical lawyers. I do not accept that this is a valid or useful exercise for the purposes of the decision I have to make. I think the exercise is difficult enough without having to go down what I regard as an intellectual cul-de-sac.
Mostyn J also set out an amended order on reporting restrictions, which was notably shorter than the typical transparency order, and was titled as a ‘Reporting Restrictions Order.’
Mostyn J’s findings on substance matter capacity were unsurprising in this very sad case. He continues to take a stance at odds from other High Court judges on capacity to conduct proceedings, considering as a matter of logic that a person does not need to understand and use and weigh any less information to litigate about a decision than to make that decision (a discussion about this issue in the context of Re P(Litigation Capacity)  EWCOP 27 is included in our May 2021 report).
In the abstract, it is also hard to disagree with Mostyn J’s observation that ‘Transparency’ orders are likely more appropriately headed as Reporting Restriction Orders. However, we would note that Practice Direction 4C – Transparency does create a default position in the Court of Protection for the making such an order, and that the court will not ordinarily undertake an ‘intense balancing exercise’ as is required where matters are going from public to private. It is therefore a nice question as to whether there is a restriction on reporting, or whether the doors are simply being opened somewhat to enable transparency. In either event, we await with considerable interest the Law Commission’s work in relation to contempt as an opportunity to make the whole area significantly less tangled.