Northamptonshire Healthcare NHS Foundation Trust v AB
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Roberts |
| Judgment Date | 16 August 2020 |
| Neutral Citation | [2020] EWCOP 40 |
| Date | 16 August 2020 |
| Docket Number | Case No: COP13630725 |
| Court | Court of Protection |
[2020] EWCOP 40
IN THE HIGH COURT OF JUSTICE
COURT OF PROTECTION
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mrs Justice Roberts
Case No: COP13630725
Vikram Sachdeva QC (instructed by Hempsons) for the Applicant NHS Trust
Katie Gollop QC (instructed by Bindmans) for the Respondent
Hearing date: 14 August 2020
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.
THE HON. Mrs Justice Roberts
This judgment was delivered in private. 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 respondent and members of the 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.
AB is a 28 year-old woman who has over many years suffered from anorexia nervosa. She was first diagnosed when she was a teenager of 13 and now has a formal diagnosis of a Severe and Enduring Eating Disorder (‘SEED’). She has lived for more than half her life with the increasing and catastrophically debilitating effects of this illness. All of those treating her recognise that her illness is both chronic and severe. It is one which has proved impossible to treat with any lasting benefit. AB's weight is now so low and her physical state so fragile that she is at serious risk of death. She could die at any time from cardiac arrest as a result of the ravages caused to her body by the illness and/or any attempts to deliver the only form of life-sustaining treatment which is now available to her in the form of tube feeding using physical restraint or chemical sedation.
The NHS Trust and the team of treating clinicians who have been responsible for providing care for AB now apply to this court for declaratory relief pursuant to ss 4 and 15 of the Mental Capacity Act 2005 in these terms:
(i) it is in AB's best interests not to receive any further active treatment for anorexia nervosa; and that
(ii) AB lacks capacity to make decisions about treatment relating to anorexia nervosa; and
In essence, there is only one treatment option available to AB given the significant deterioration in her health and that is to undergo forced nasogastric feeding through the insertion into her stomach of a tube through which liquid nutrients can be delivered. AB would probably not tolerate this treatment and would probably resist as forcefully as her weakened resources would allow thereby exposing her to a very significant risk of injury given the degree of physical restraint which would be required. If such physical restraint is to be avoided, AB would need to be heavily sedated throughout the procedure. Dr B, a consultant psychiatrist who leads the team of treating clinicians caring for AB, told me that if this regime were to have any prospect of success, she would need to be hospitalised as an in patient over at least six months and, because of the risk that AB might pull out the tube, this procedure might need to be undertaken at least twice a day. It is properly described by her leading counsel, Ms Katie Gollop QC, as a horrific scenario which AB herself cannot contemplate. Her doctors agree it is not in her best interests. Whilst I will need to be satisfied that it is not in AB's best interests to receive further treatment of this nature before I can grant the declaration which is sought, no one in this case is asking me to impose such a treatment regime on this young woman. For reasons which I shall explain, and as I assured AB at the conclusion of the hearing last Friday, I am entirely satisfied that it would not be in her best interests to undergo further treatment of this nature.
An important point needs to be made at the outset. AB accepts and understands that her life is at risk and that she could die at any point as a result of cardiac arrest, if not eventually of starvation. She currently weighs only 4 stone (or 25.8 kg). Her potassium levels are dangerously low and she suffers from a number of different presenting conditions as a result of severe and chronic malnutrition. These include osteoporosis, oedema (painfully swollen legs), anaemia (low blood count leading to extreme fatigue and tiredness) and unstable blood salts (the result of low potassium levels which expose her to possible heart complications and the risk of a cardiac arrest as well as adding to her debilitating fatigue). Yet despite all of this, AB sees reason and purpose in what remains of her life. She is cared for in the home which she shares with her devoted and loving parents. She acknowledges that her illness is a part of her but she is clear in her written statement which was read to the court that she does not regard it as defining the essence of who she is. Life, even in the context in which she currently experiences it, continues to bring some pleasure to this young woman. She is surrounded by those she loves and those who love her (principally her parents, her brother and sister, and their children). She leads her life one day at a time and she makes the most of each day knowing that one day she may simply not wake up. Whilst much of her waking day is spent engaging with her treating team both as an out-patient and within the community, there are still activities which bring her much pleasure on a day to day basis. She places enormous value on the time she spends with her parents even when they are doing simple activities such as watching favourite television programmes together. She has a number of pets with whom she continues to engage.
AB is clear in her evidence to me that her wish to stop further treatment for her illness is a decision which she has made independently of her treating clinicians. It is one which she wishes to own as an aspect of her personal autonomy. She said this in her statement:
“Some people might think that it is a life limited in quality as well as quantity, and, in some ways it is, but in so many others, it is not; in many ways, I have what others do not, and finally, as I have said – it is mine. Many, many aspects of it are aspects that I have chosen for myself. That is what I mean when I say that it is a decision made by me as opposed to my illness.
I don't feel that to ask anything else of me is fair. But it is more than that. I believe in fact that to ask anything else of me would make me worse: both physically and mentally. It would be like being punished twice: once by having the illness, and once in an attempt to ‘treat’ it (whatever that means).”
This resonates with the clear evidence I had from Dr B that a coercive feeding regime is now the only treatment option available for AB in the circumstances in which she now finds herself. The only purpose of such an option would be to re-nourish AB's body to the point where she is well enough to engage in psychiatric or psychological therapies. Her treating team agrees that the advanced effects of her illness are now such that she would not be able or willing to engage in this next stage. Because of the physical and psychological trauma which would be inflicted on this young woman were she to be subjected to a further trial of nasogastric feeding, both they and she are in agreement that she should not receive any further active treatment for her anorexia nervosa. Each of her parents have agreed that their beloved daughter should not receive any further treatment. Their love for their daughter is too great to watch her suffer despite the fact that they are aware of the inevitability of the outcome given the path which her illness has taken to date.
The remaining issue for this court
It is now agreed that AB has litigation capacity for the purposes of these proceedings. Both she and her clinical team agree it would not be in her best interests to receive further medical treatment beyond that in which she voluntarily participates through regular health checks and visits to the hospital and her GP in addition to palliative care when that proves necessary. The single remaining issue for this court is whether AB has capacity for the purposes of making this decision in relation to her own treatment. If she does, there is no further role for the Court of Protection.
This flows from the fundamental principle that a person who has capacity is entitled to decide for himself or herself whether or not to accept or decline medical treatment. Even treatment which has the potential to save life is subject to that absolute principle and basic human right once a court is satisfied that the person concerned has the capacity to make the decision. This fundamental right to choose is not limited to situations and decisions which others might regard as sensible. It matters not that the reasons for making the choice are “rational, irrational, unknown or even non-existent”: see Re T (Adult: Refusal of Treatment) [1993] Fam 95 at 102 per Lord Donaldson.
During the course of argument, I was referred to several authorities in which the court was confronted with similar issues arising in cases where the chronic and long term effects of anorexia nervosa have brought those affected to a potentially critical end of life stage. In each case, the individuals concerned have been found to lack both litigation and subject matter capacity: see, for example, A Local Authority v E (by her Litigation Friend, the Official Solicitor) & Others [2012] EWHC 1639 (COP), The NHS Trust v L (by her Litigation Friend, the Official Solicitor) & Others [2012] EWHC 2741...
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A NHS Trust v P
...principle(see Sheffield City Council v E [2004] EWHC 2808 (Fam); [2005] Fam 326, NorthamptonshireHealthcare NHS Foundation Trust v AB [2020] EWCOP 40) and this is one of those rarecases.”11 Since the position of the Trust at the February hearing was that P had litigation capacity,notwiths......