An NHS Foundation Trust v AB
A new Court of Protection decision involving the treatment of an anorexia nervosa patient (with a diagnosis of a Severe and Enduring Eating Disorder) highlights a number of issues of interest to clinical teams from capacity and insight to medical treatment and force feeding.
It was agreed that AB had litigation capacity but the central issue in this case was whether AB lacked capacity to make decisions about the treatment of her anorexia. The applicant Trust argued that AB did not have the capacity to make decisions concerning the treatment options for her anorexia.
Briefly, AB suffered from anorexia nervosa and had done so since her early teens and was now 28. Her illness had “proved impossible to treat with any lasting benefit”: all treatment had failed with nasogastric tube feeding remaining the only potentially life-saving treatment option on offer. She weighed 4 stone / 28.5 kilograms (a BMI of 9.7) reflecting the chronic and insidious nature of AB’s disease. However a coercive feeding regime would cause physical and psychological trauma to AB and there was a risk that this may well precipitate her death in any event.
The court noted the key points:
- There is a statutory presumption that a person has capacity
- Determination of capacity is decision specific
- AB could not be treated as incapacitous merely because she made a decision which was unwise
- It is not necessary for the court to find that AB has the ability to use and weigh every aspect and detail of the available options, merely the salient factors
The court reached the “clear” conclusion that AB lacked capacity to decide whether or not she should be tube fed and that forcible tube feeding or tube feeding under sedation was not in her best interests. The court was of the view that given the chronic nature of AB’s illness and current clinical presentation her decisions in connection with food, calorific intake and consequent weight gain are so infected and influenced by her fixated need to avoid weight gain at all costs that true logical reasoning in relation to these specific matters is beyond her capacity or ability. The fact that she did not want to die and saw many reasons for living was for the court the clearest manifestation of the extent to which her judgement was impaired in relation to this narrow field of decision making.
Tragically, AB died on 23 August 2020, before her application for permission to appeal the capacity decision was listed.
There are a number of issues in this case that we are likely to see explored further in future cases, such as the issue of anorexia patients making advance decisions or a Lasting Power of Attorney as soon as they reach 18 and whether it is necessary to make an application to court following the Supreme Court’s decision in An NHS Trust and others v Y where there is no dispute as to best interests. Katie Gollop QC of Serjeants’ Inn who represented AB has written an article on these issues.