Gloucestershire Health & Care NHS Foundation Trust v FD & Ors

Summary 

Gloucestershire Health & Care NHS Foundation Trust v FD & Ors [2023] EHWC 2634 (Fam) concerned the capacity and best interests of a 29 year old woman who first developed anorexia around the age of 4 or 5, and who had been in one medical institution or another since 2007.  She described her situation as ‘torture.’  The treating Trust responsible for her care sought declarations that she did not have capacity to conduct the proceedings, or to make decisions regarding her nutrition and hydration, and that it was not in her best interests to for active treatment to be provided in the face of her wishes.  The Trust also sought declaratory relief as regards their obligations under the Mental Health Act 1983.  

Francis J’s judgment is careful and comprehensive, but it is not necessary for present purposes to set out the details of FD’s life and challenges, underpinning his decision to grant the declarations sought.  Of wider relevance are the observations about the role of the Official Solicitor in circumstances where FD assert she had capacity to make decisions about nutrition and hydration. Francis J set out a note on the role of the litigation friend prepared on behalf of the Official Solicitor, to explain to FD the “apparent dichotomy between FD’s wishes and what been advocated to me by the Official Solicitor on her behalf” (paragraph 41).  The note concluded that: 

Hence, in acting as litigation friend, the Official Solicitor must act in P’s best interests.  In so doing, the Official Solicitor will have careful regard to P’s wishes and feelings, but ultimately she [the Official Solicitor] must act for P’s benefit and in P’s interests. She must consider and assess legal advice that she receives. In fulfilling her role she may sometimes have to take a position that is contrary to the wishes and feelings of P.

In acceding to the Trust’s application in relation to the MHA 1983, Francis J accepted the Trust’s’ submission that declaratory relief not to impose such treatment was likely “to be extremely helpful to FD in understanding that compulsory treatment has, on the basis of current evidence, been taken off the table” (paragraph 57).  Francis J did not order, because he could not, that FD be discharged from detention under the MHA 1983, but accepted that what he had decided in relation to treatment would have that effect – if that turned out to be different, he wished to be kept informed so that consideration could be given to what should be done. 

As with the case of A Mental Health Trust v BG [2022] EWCOP 26, this case is fact-specific, and not a general judicial statement about how to address cases of severe and enduring anorexia. It is also extremely important to remember that the cases which reach the Court of Protection in this field are, by definition, the most difficult, and there are very many where it is possible to provide appropriate care and treatment so as to enable the person not only to survive but to go on to thrive. 

The note read into the record about the role of the Official Solicitor for FD’s benefit is to not surprising, reflecting as it does long-standing case-law.  It is, however, a standing problem for the representation of P – in this case, as in very many others, the Official Solicitor is having to do the dual role of being the advocate for P, and assisting the court with what might be best for P.  Many, including Alex, have long thought that this is – properly analysed – to give rise to a fundamentally impossible position, no matter how diligently and conscientiously the current incumbent of the post, her office holders, or the lawyers she instructs are.  By way of analogy, we note that, had FD been under 18, and her case determined before the Family Division, it is quite possible that she would have had her own lawyer arguing the case on her behalf, and CAFCASS assisting the court to tease out what, ultimately, the right course of action to take would be.  It might be thought that the time has come to rethink whether or not there should be a similar split in the Court of Protection.