A NHS Foundation Trust v Ms X (by her Litigation Friend, the Official Solicitor)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cobb,The Honourable Mr Justice Cobb |
| Judgment Date | 08 October 2014 |
| Neutral Citation | [2014] EWCOP 35 |
| Docket Number | Case No: 12554134 |
| Court | Court of Protection |
| Date | 08 October 2014 |
[2014] EWCOP 35
COURT OF PROTECTION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Cobb
Case No: 12554134
Michael Mylonas QC (instructed by DAC Beachcroft) for the Applicant
Conrad Hallin (instructed by Official Solicitor) for the Respondent
Hearing dates: 11–12 September 2014
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This judgment was delivered in public.
The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the incapacitated person and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
Introduction & Overview
Ms X is a young woman; she lives alone in a private rented bed-sit. She is suffering from an enduring and severe form of the eating disorder, anorexia nervosa; this condition has, it appears, dominated her life for the last 14 years. Ms X also suffers an alcohol dependence syndrome (psychological dependence on alcohol) which has caused chronic and now " end-stage" and irreversible liver disease, cirrhosis; this follows many years of abuse of alcohol. The combination of anorexia nervosa and alcohol dependence syndrome is unusual, and has been (and continues to be) medically acutely difficult to manage.
For many years Ms X has been trapped in an increasingly destructive revolving door of treatment and recurrent illness. She has required repeated specialist in-patient hospital admissions, when she has been force-fed in an attempt to arrest and reverse the effects of her anorexia; these admissions have brought about only short-term benefits given that, when discharged into the community, she has invariably sought refuge in alcohol on which she has binged increasingly excessively to blunt her distress. The causes of her distress are multi-factorial but include the treatment for her anorexia itself and the removal of her personal autonomy when treated, superimposed upon a background of harmful childhood experiences. Furthermore, when free to make choices, she consciously acts to undo the weight gains achieved in hospital, to the point that her weight falls to a critical level and re-admission to hospital for re-feeding treatment becomes once again necessary. Thus the increasingly predictable and immensely damaging cycle repeats, as it has many times over recent years.
Ms X is currently in extremely poor health. She is extraordinarily malnourished, with a body mass index ("BMI") assessed to be in the region of 12.3–12.6 kg/m 2. She is continuing to consume alcohol to excess; although she does so covertly, it is believed that her consumption is in the region of half a bottle (375mls) of vodka per day, sometimes more. Her current weight and BMI would, in ordinary circumstances, now provoke a further admission to a hospital unit specialising in eating disorders for treatment. The doctors who have treated her in recent years however regard it as " clinically inappropriate, counter-productive and increasingly unethical" (Dr. A – see below) to cause her to be admitted for compulsory feeding; their experience reveals that on each recent admission, she has been more and more unwell (as a result of her intervening bingeing on alcohol), and they confidently predict that she will be yet more poorly and fragile now than on previous admissions. Ms X has been on an 'end of life pathway' twice in recent months; indeed, it is said that her physical condition is now so fragile that her life is in imminent danger.
The purpose of re-feeding an anorexic patient is to keep that patient alive whilst psychotherapy, talking therapies, can be facilitated in an endeavour to investigate and treat the underlying anorexia; this has been shown over many years not to work for Ms X. So it is that the medical professionals firmly believe that not only would in-patient treatment once again involve painful, invasive and wholly unwelcome procedures for Ms X, but it would be pointless in terms of achieving long-term treatment, and would be likely in their view to intensify her consumption of alcohol on discharge from hospital, thereby actually increasing her mortality, and accelerating her demise. As it is, the doctors opine that her life expectancy is measured in months.
It is against that background, summarised above and more fully discussed below, that application was made on 29 August 2014 by the A NHS Foundation Trust ("the Trust") for declarations that:
i) It is not in Ms X's best interests to be subject to further compulsory detention and treatment of her anorexia nervosa, whether under the Mental Health Act 1983 or otherwise, notwithstanding that such treatment may prolong her life.
ii) It is in her best interests, and shall be lawful, for her treating clinicians not to provide Ms X with nutrition and hydration with which she does not comply.
Those declarations are sought in the context of the Trust's contention that Ms X lacks capacity to make a decision as to whether it would be in her best interests to receive treatment for her anorexia.
I emphasise that the doctors do not seek authorisation to withhold treatment. Treatment remains on offer for Ms X should she wish to avail herself of it; the doctors hope that she will. This case, tragic in so many ways, is about the lawfulness of not compelling treatment.
The only respondent to the application is Ms X herself. She has made known her views (which I have set out below [48]–[51]); in short, she supports the application. Given the expert assessment of incapacity to litigate, she has been represented in the proceedings by her litigation friend, the Official Solicitor, who, having heard and tested the evidence, now does not oppose the application sought.
The absence of real opposition to the grant of relief sought by the Trust does not relieve me of the onerous obligation to satisfy myself that I can and should exercise jurisdiction in relation to Ms. X, and to make orders which protect and advance her best interests.
For the purposes of determining this case, I received written and oral evidence from:
i) Dr. A, a consultant psychiatrist and psychotherapist (with specialism in a range of therapies) employed by the Trust, with particular expertise in eating disorders; she has been treating Ms X since 2009;
ii) Dr. B, a consultant gastroenterologist with a special interest in nutrition and eating disorders, employed by an acute Trust which has also been responsible for providing care to Ms X for several years. Dr. B has cared for Ms X and treated her liver disease since 2010;
iii) Dr. Tyrone Glover, an expert in eating disorders who has met with the medical and lay protagonists, and has reviewed the majority of the estimated 25–30,000 pages of medical notes (I may add, within a very short space of time, for which I am grateful) in order to advise the court;
iv) Ms Y, a friend of Ms X – said to be her " best friend".
I further received a letter from Ms X herself, which I reproduce in full at [51] of this judgment.
The hearing of oral evidence occupied one full day of court time. I took the opportunity overnight to reflect on the material before delivering my decision and an abbreviated form of this judgment. The particular tragedy of the case is that there is a possibility even now that Ms X could live a long and happy life, but that chance is very small indeed – less than 5%. Moreover, I am satisfied that she does not want to die.
Background
The outline sketch of Ms X's early life contained in the evidence before me reveals a range of harmful childhood experiences which she suffered while in the care of her parents; she has spoken to professionals and others (although not in detail) of these experiences. It is unnecessary, and I believe unhelpful to Ms X, for me to elaborate further on this aspect of her life here. Her narrative accounts of the highly disordered relationship with her parents is corroborated not just by the descriptions of Ms X's terror (Ms Y described her as 'hysterical') when she has more recently encountered her father, but more significantly – it is thought – by the development of her current illnesses, and her deeply engrained and highly injurious self-harming behaviours. There is little doubt in my mind, as in the minds of the experts, that the traumas of her childhood have left deep wounds which continue to manifest themselves through her psychological disturbance.
Ms X first displayed symptoms of anorexia nervosa some 14 years ago. In October 2003 she was referred to secondary services for treatment by her GP, though was prevented from attending by her mother. In the years since then, she has had over 45 admissions to hospital, sometimes for many weeks or even months at a time; she has received treatment (under the provisions of the Mental Health Act 1983) at some of the most specialised eating disorder units in the country. She has spent most of the last two years, and five of the first six months of 2014, in hospital.
Dr. A describes Ms X thus:
" [Ms X] has clear attachment and abandonment related issues from childhood, physical and emotional trauma experience and other suspected but as yet undisclosed trauma. She has poor effective positive coping strategies, has no self-compassion, feels herself unworthy and likely has highly negative core schema (though these have...
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