Anorexia, capacity and treatment: When should an NHS trust make an application to court?

A new Court of Protection decision offers guidance on two key issues: whether applications for declarations about capacity and best interests should be brought in the Court of Protection or the High Court, and the factors NHS trusts should consider when deciding whether an application is necessary.

In Birmingham and Solihull Mental Health NHS Foundation Trust v CG, the Trust applied to withdraw proceedings concerning CG, a 36-year-old woman with severe anorexia nervosa.

The Trust sought declarations that:

• CG lacked capacity to make decisions about treatment for her eating disorder
• It was lawful and in CG’s best interests neither to detain her under the Mental Health Act 1983 nor to administer nasogastric feeding under restraint pursuant to section 63 of the Act

The court held that withdrawing the Trust’s application was in CG’s best interests. There was no dispute between the parties and no other reason for the proceedings to continue. CG’s treating clinical team and the independent expert, Dr Paul Robinson, agreed that further coercive treatment would be clinically inadvisable and expose her to a substantial risk of serious harm and risk of accelerating her death. CG’s family also supported this position.

The jurisdictional question

The court also considered whether applications of this kind should be brought in the Court of Protection or the High Court involving the Inherent Jurisdiction or both.

The court said that any application in these circumstances should clearly explain the procedural route chosen, identify the declarations sought and, where relevant, address whether sections 16A and 28 and Schedule 1A of the Mental Capacity Act 2005 apply. This requirement reflects the limits of the Court of Protection’s powers in cases where the Mental Health Act applies

It referred to recent authorities, including Cumbria, Northumberland, Tyne and Wear NHS Foundation Trust v QF and Re Patricia (you can read our earlier articles on Re Patricia on what ICBs can learn from Patricia’s case and treatment decisions in anorexia cases), which establish that section 28 of the Mental Capacity Act 2005 prevents the Court of Protection from making declarations about medical treatment under Part 4 of the MHA.

Factors NHS Trusts should consider before making a court application

Following the hearing, the parties agreed a list of factors that an NHS trust should consider when deciding whether a court application is required in relation to:

• A treatment plan for a patient with anorexia
• A patient who lacks capacity to make decisions about their medical treatment, where a decision not to provide treatment may be life-threatening

The court set out ten factors at paragraphs 67 and 68 of its decision, offering NHS trusts a practical framework for assessing whether an application is necessary. However, it emphasised that the factors are not a rigid checklist and that each case must be considered on its own facts.

The court’s ten-factor framework

1. Is there any dispute that the patient lacks relevant capacity?
2. Is there any material dispute among the clinicians as to the treatment plan and what treatment is in the patient’s best interests?
3. Does the patient object to the treatment plan?
4. Is there a dispute as to the treatment plan and what treatment is in the patient’s best interests, or as to the need to obtain further medical opinions before a decision is reached: 
   1. From those with an interest in the patient’s welfare?
   2. From any Independent Mental Capacity Advocate appointed in respect of the patient?
5. Is there any identified medical professional who proposes to offer alternative treatment to that which is in the treatment plan?
6. Has the NHS Trust obtained an independent external second opinion from an appropriately qualified and experienced clinician (where practicable)?
7. Is there any material dispute from the author of the second opinion as to the treatment plan and what treatment is in the patient’s best interests?
8. Has the NHS taken all reasonable and practicable steps short of making an application to the Court to resolve any material dispute?
9. Is the way forward finely balanced?
10. What impact would the NHS Trust bringing / the patient participating in legal proceedings have on the patient’s welfare?

“The parties agree that, if the answer to any of (1) – (5) or (7) – (9) is “yes”, that would suggest that the NHS Trust would be ‘well advised’ to make an application to the Court, but if the answer to all of (1) – (8) is “no” then the NHS Trust should consider very carefully whether there is any need to make an application.”

What does “finely balanced” mean?

The court was invited to clarify what “finely balanced” means when there is agreement about the treatment plan. However, it declined to express a view because the parties had not addressed the issue in their written submissions.

It did, however, refer to Townsend, which cites Royal College of Physicians and British Medical Association guidance on clinically assisted nutrition and hydration (CANH) for adults who lack capacity to consent. That guidance indicates that a decision may be considered finely balanced where there is “on going uncertainty”.

As discussed in our earlier blog, the Supreme Court has granted permission to Epsom and St Helier University Hospitals NHS Trust to appeal the Court of Appeal’s decision. 

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