Re Beatrice (No 2)

Summary

Although not his final judgment, a delay in getting the case to Bailli means that the final published judgment of Mostyn J  is the conclusion to the story of Beatrice, the story of a 50-year-old woman with profound and enduring thirty year long history of anorexia set out in his earlier judgment [2023] EWCOP 17. 

In that judgment, Mostyn J addressed anorexia in terms of terrorism and insurgency; he likened the diet favoured by some sufferers with the regime imposed by the Nazis in concentration camps.  Despite her assertion that she believed she “might” retain the requisite capacity to make the necessary decisions to manage her care, Mostyn J made orders that Beatrice lacked capacity to make decisions about the treatment of her anorexia and to decide on care and treatment options in respect of her nutrition and hydration – i.e. her anorexia.   Unusually for a Court of Protection decision, Mostyn J agreed to make free-standing capacity declarations, while adjourning the decisions on best interests for a later (albeit imminent) date. 

Beatrice No.2 sets out the analysis of what was in Beatrice’s best interests: essentially, whether she should be compelled to take on nutrition and, accordingly, have a chance of living; or that she should not be so compelled, and thus, in all likelihood, die. 

Mostyn J’s judgment follows, appropriately, the s.4 statutory test about which he observes: 

10. When weighing these factors, the exercise is quintessentially an evaluation rather than an exercise of discretion. The case law clearly establishes a number of simple propositions which guide the evaluative judgment which I must make as to Beatrice’s best interests. The propositions are these.

a.    When assessing best interests the exercise is first and foremost to consider matters from the point of view of Beatrice: Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67 at paragraph 45.

b.    Welfare must be assessed in the wider sense, not merely medical but social and  psychological also (ibid at paragraph 39).

c.    While there is a strong presumption in favour of the preservation of life this may, in an appropriate case, yield to the need to respect personal autonomy and dignity of the protected person and her right to self determination (ibid at paragraph 35).

Mostyn J accepted the submission on behalf of the Official Solicitor to the effect that: 

further treatment to achieve weight gain would be futile, overly burdensome to Beatrice and in circumstances where there is no prospect of any real recovery from her eating disorder. Treatment within a SEDU (including forcible feeding) would be an assault upon Beatrice and a violation of her rights under article 3, which prohibits inhuman or degrading treatment unless it is shown to be in her best interests on the basis of therapeutic necessity that has been convincingly shown to exist. There is no such evidence in this case and instead further inpatient admission would do more harm than good.

In terms of wishes and feelings, Mostyn J found that Beatrice did not wish to die, but not wish her suffering to continue. He considered that she found forced feed “abhorrent” and not to be contemplated (paragraph 16), and that was Beatrice was a Christian and “would subscribe to the Christian tenet that self-destruction is sinful” – albeit that Mostyn J dismissed the relevance of this on the basis that he did not think Beatrice’s conduct to be voluntarily self-destructive (paragraphs 17-8). 

In terms of the views of others, he noted that both Beatrice’s father and her brothers wished her to have whatever treatment was necessary, including compulsory treatment against her will, to preserve her life.  However, he considered that past experience demonstrated the futility of many treatments tried; any future treatment was likely to be “equivalently futile” (paragraph 20).  Further, he identified that both Beatrice’s treating clinicians, and the independent expert, Ty Glover, considered further active treatment against her would not to be in her best interests; her treating clinicians were not prepared to administer it in any event.  

In light of this analysis, Mostyn J concluded that “it is in Beatrice’s best interests only to have treatment which involves such feeding and/or weight restoration that her treating clinicians consider clinically indicated and which she expressly accepts or requests” (paragraph 24). 

On reaching this conclusion, Mostyn J returned to the observations in his earlier judgment, where he likened Beatrice’s anorexia to a malign invasion of the mind; a struggle against invading forces. 

27. Surely, it might be said, given there is no question of Beatrice being complicit in this struggle, the Court should authorise whatever measures are necessary to defeat that invader. But that approach would be to misunderstand the function of the Court when it makes a best interest decision on behalf of an incapacitated person such as Beatrice.

28. When making that highly nuanced individual evaluation I am obliged to afford appropriate weight to the decision that Beatrice has made not only to discontinue the struggle against this invader of her mind but more specifically emphatically to reject the idea of being forcibly fed.

29. I agree with Ms Sutton KC that the protection given to an individual’s autonomy granted by article 8, building on the common law, applies to the incapacitated just as much as it applies to capacitous members of society provided that the decision in question is not antisocial, unlawful or obviously irrational. As I have said, on the facts of this case, this factor is the one with the magnetic influence in my decision making.

30. The decision that I make has nothing to do with the right to die or with the Court authorising somebody’s death. It is simply a decision that respects Beatrice’s own very strong opposition to, and abhorrence of, forced feeding.

31. It is a decision that not only respects the opposition of Beatrice in principle but it is also a decision which is realistic in that an order which required force feeding would likely be frustrated by Beatrice in short order by self-vomiting and where there is no evidence, as I have said, of a clinician who would be prepared to do it.

Having made this decision, Mostyn J then set out the consequential declarations he considered should be made as a result: 

1. Firstly, a declaration under the Inherent Jurisdiction of the High Court that “it is lawful for Beatrice’s treating clinicians not to take steps to provide Beatrice with nutrition and hydration by force under the Mental Health Act 1983 against her wishes, even if in the opinion of her treating clinicians it would be immediately necessary to administer such nutrition and hydration to preserve her life.” (for the provenance of such a declaration, readers are directed to his earlier judgment, Nottinghamshire Healthcare NHS Trust v RC [2014] EWCOP 1317. 


2. In the event Beatrice were expressly to accept or request an escalation of treatment to provide nutrition and hydration, even with restraint, this would be lawful if in accordance with her express wishes;


3. A s.15 declaration that referral for end of life care would be lawful saving that Beatrice would not be moved to a hospice against her wishes.  

In acknowledging the undoubted disappointment the judgment would likely cause Beatrice’s family, Mostyn J observed (at paragraph 37) that: 

I hope they will understand that I am a mere servant of the law and that I have to administer it as it has been passed by Parliament. That law requires me to weigh certain factors. I have concluded that a correct weighing exercise requires me to give predominant and conclusive weight to Beatrice’s strongly expressed wish not to be forcibly fed.

Notably, at the end of the judgment, Mostyn J breaks the proverbial fourth wall to comment on commentary criticising his references to the Nazis (not, we should perhaps make clear, commentary by any of the editorial team here). Mostyn J observed, firstly, that he simply did not accept that his analogy suggested any complicity on behalf of Beatrice in her predicament. Secondly, that he rejected the criticism of the analogy he had lit upon per se. 

42. In order to make my judgments understandable to the reasonable person it is my practice to use analogy and metaphor in order to make them readable and, dare I say it, interesting. To say that somebody’s daily calorific intake is 260 is just an abstract number.

43. It does not begin to acquire any kind of real life significance until it is put in context by analogy and in my opinion the analogy of the amounts of bodily fuel allowed in the 1944 Minnesota Starvation Experiment and by the bestial Nazi regime to its victims at the same time shines a very strong light on the suffering that this malign invader of Beatrice’s mind is inflicting on her.

44. The analogy is probably not necessary for those of extremely high intelligence but, in my opinion, it is apt in order to explain my decision to the reasonable person. Finally, I would point out that my first judgment was seen in draft by both leading counsel before it was published and neither raised any suggestion that the analogy was inappropriate.

Comment 

This is a very interesting judgment to revisit in the context of a discussion held on anorexia in chambers at the end of January 2024 (https://www.39essex.com/events/anorexia-and-court-protection) at which anorexia advocates and carers for anorexia sufferers argued vociferously that (a) by definition, those suffering with anorexia could not have capacity to make decisions about their nutrition and hydration (b) their wishes and feelings in that context should be overridden unless and until their weight had reached a “normal” level (c) all steps should be taken to preserve their lives, including feeding against their will and under restraint.

The “experts by experience” who spoke at the conference also suggested that the Court of Protection would make declarations and orders leading to withdrawal of treatment against P’s wishes thus condemning P to death in spite of an enduring wish to live. We hope that this judgment provides some reassurance that the Court of Protection remains committed to the preservation of P’s autonomy, that P’s wishes and feelings remain an integral element of the best interests evaluation and that, as here, orders made will frequently reflect the possibility that P may change their mind regarding treatment. 

We have resisted the urge to comment on Mostyn J’s observations in response to previous commentary upon his judgment.