A Local Authority v E
| Jurisdiction | England & Wales |
| Judgment Date | 2012 |
| Neutral Citation | [2012] EWHC 1639 (COP) |
| Date | 2012 |
| Year | 2012 |
| Court | Court of Protection |
Incapacity – Capacity to make decisions – Life-sustaining treatment – Best interests – E suffering from severe anorexia nervosa and other problems including alcohol dependence – E spending large amounts of time in eating disorder units – E making advance decisions stating that she did not want to be resuscitated or given any medical intervention to prolong her life – E being looked after in community hospital under palliative care regime – Local authority issuing application in Court of Protection for E’s position to be investigated and protected – Issue arising as to whether E should be forcibly fed – Whether E lacking capacity to make decision about life-sustaining treatment – Whether in E’s best interests to be fed against her wishes – Mental Capacity Act 2005, ss 1(2), 2(1), (4), 3(1), 4.
E was a 32-year-old woman who suffered from extremely severe anorexia nervosa, unstable personality disorder, alcohol dependence sydrome, opiate dependence (as a result of time spent in hospital), and the debilitating physical consequences of long-term malnutrition. Unbeknown to her parents, she had been seriously sexually abused as a child. At the age of 15, her weight had dropped to the point that she was admitted for nine months to a specialist unit for the treatment of adolescent eating disorders. That was successful in the short term and, although her weight remained low, she was able to complete her schooling satisfactorily and go to university to study medicine, where for several years she achieved highly in a demanding course. She had then become involved in a bad relationship and began drinking heavily. She had to drop out of her medical training, but went travelling with a new boyfriend in what she remembered as a very happy time. In early 2006, however, she was again admitted for inpatient treatment and thus began a continuous series of emergencies and admissions that lasted for six years. During that time, E had placements in four specialist eating disorder units and one alcohol treatment unit. Between 2006, when she was aged 26, and the middle of 2010, when she was aged 30, E spent more than half of her time in one or other of those placements. Thereafter, she was mostly treated in her own flat in the community as a result of the failure of the residential placements and the unavailability of further funding. The result was a series of emergency admissions for medical and psychiatric care, often after she was found in a collapsed state after drinking as much as a bottle of
spirits a day. In July 2011, E signed a document saying that she did not want to be resuscitated or given any medical intervention to prolong her life. In October 2011, she signed another advance decision in a standard form, assisted by her mother and her mental capacity advocate. On the same day, however, she was detained under s 3 of the Mental Health Act 1983 and the day after that she was admitted for a two-week assessment by Professor L at an eating disorder unit. He expressed the view that her anorexia had moved into a severe and enduring phase but that she could benefit from treatment. On 18 May 2012, an urgent application was made to the Court of Protection by her local authority, which was concerned that her position should be investigated and protected. By that stage, E was being looked after in a community hospital under a palliative care regime, the purpose of which was to allow her to die in comfort. She was refusing to eat, and was taking only a small amount of water. Since E was no longer being compulsorily detained, the issues were brought before the court for decision under the terms of the Mental Capacity Act 2005. It fell to be determined whether E had the mental capacity to make decisions about her treatment and, if not, whether it was in her best interests to receive life-sustaining treatment in the form of forcible feeding with all necessary associated measures. E’s parents were highly sceptical about fresh professional promises and the likely outcome of further treatment. They believed that, unless further medical intervention had a real prospect of making a difference, her wishes should be respected. The health authority adopted a neutral stance in relation to forcible feeding, stating that it would act in accordance with the court’s decision and would fund any treatment which was considered to be in E’s best interests. Relying upon the advice of Dr G, a consultant in eating disorder psychiatry, the Official Solicitor sought a declaration that forcible feeding was in E’s best interests. Dr G’s preliminary impression after meeting E had been that it was not in her interests to be forcibly fed. However, on reflection, and having studied her medical records, he advised that treatment which might return E to relatively normal life was available but had not so far been tried, and that E should receive it. That proposal would require E’s immediate transfer to a specialist hospital for the treatment of advanced eating disorders where, under the care of Dr M, she would be stabilised and fed with calorific material via a nasogastric tube or a PEG tube inserted through her stomach wall. Any resistance would be overcome by physical restraint or by chemical sedation. The process would continue for a year or more and, once her weight had been restored, she would be offered therapies for her eating disorder and for her other physical and psychological problems. The local authority was initially neutral, but ultimately supported Dr G’s proposal. The judge found that E lacked capacity to make a decision about life-sustaining treatment and declared that it was in her best interests to be fed against her wishes with all that that entailed. He subsequently handed down judgment explaining his reasons for that decision.
Held – (1) Pursuant to ss 1(2) and 2(4) of the 2005 Act, E had to be presumed to have capacity unless the contrary was proved on the balance of
probabilities. According to s 2(1), she would lack capacity if at the material time she was unable to make the treatment decision for herself because of an impairment of, or a disturbance in the functioning of, the mind or brain. There was no doubt that E had an impairment of, or a disturbance in the functioning of, the mind or brain in the form of her anorexia. Equally, it was clear that in terms of s 3(1) of the 2005 Act, she could understand and retain the information relevant to the treatment decision and could communicate her decision. There was, however, strong evidence that E’s obsessive fear of weight gain made her incapable of weighing the advantages and disadvantages of eating in any meaningful way. For E, the compulsion to prevent calories entering her system has become the card that trumped all others. The need not to gain weight overpowered all other thoughts. Furthermore, E was now subject to strong sedative medication and was in a severely weakened condition. She therefore lacked capacity in her current situation (see [47]–[51], below).
(2) For an advance decision relating to life-sustaining treatment to be valid and applicable, there should be clear evidence establishing on the balance of probability that the maker had capacity at the relevant time. Where the evidence of capacity was doubtful or equivocal it was not appropriate to uphold the decision. On the evidence, it was clear that E lacked capacity to make an advance decision in July 2011. To an extent, that was confirmed by her subsequent attempt to put herself in a position to make an advance decision that would be accepted as valid. On the balance of probabilities, E did not have capacity at the time she signed the advance decision in October 2011. Against such an alerting background, a full, reasoned and contemporaneous assessment evidencing mental capacity to make such a momentous decision would be necessary. No such assessment had occurred in E’s case and it was, at best, doubtful that a thorough investigation at the time would have reached the conclusion that she had capacity (see [55], [59], [65], below).
(3) Since E did not have the mental capacity to make the decision about treatment by forcible feeding, the court had to take the decision that was in her best interests. The assessment of best interests was governed by s 4 of the 2005 Act. The court had to consider all the relevant circumstances and take the following steps: (i) consider whether, and if so when, it was likely that E would have capacity; (ii) so far as reasonably practicable, permit and encourage E to participate as fully as possible in the decision; (iii) not be motivated by a desire to bring about E’s death; (iv) consider, so far as was reasonably ascertainable (a) E’s past and present wishes and feelings, (b) the beliefs and values that would be likely to influence her decision if she had capacity, and (c) the other factors that she would be likely to consider if she were able to do so; (v) take into account the views of E’s parents and carers as to her best interests and her beliefs and values. The advantages and disadvantages of each course of action had to be balanced out. At its simplest, the balance to be struck placed the value of E’s life in one scale and the value of her personal independence in the other, with those
transcendent factors being weighed in the light of the reality of her actual situation. In E’s situation, any decision was a heavy one. The balancing exercise was intuitive rather than mechanistic and there were weighty factors on each side of the scales. On one side was the fact that the people who knew E best did not favour further treatment and the fact that the treatment did not merely entail bodily intrusion of the most intimate kind, but the overbearing of E’s will in a way that she would experience as abusive. E’s views were entitled to high respect; she was not a child or a very young adult, but an intelligent and articulate woman, and the weight to be given to her view of her life was...
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