The woman in this case is 23, and extremely ill with anorexia nervosa. No form of medical or psychiatric input has worked, including compulsory treatment, treatment in a number of different settings and at a number of different times over a 10 year period. She has liver failure and is deteriorating from chronic malnourishment.
The judge had decided she should not be fed nasogastrically under compulsion, at an earlier hearing, whether it be via restraint or sedation, given her passionate opposition to that course, and the significant distress it would cause her, believing she lacked capacity.
All parties agreed at this later hearing that she currently has capacity to litigate, capacity to instruct her own lawyers and to conduct this litigation herself, although the underlying issue regarding treatment was the one as to which there was a dispute between experts.
Three doctors supplied evidence.
The first thought that her mental disorder had prevented her, and was preventing her, from using and weighing the information she was being given, relevant to treatment decisions.
The second said that Patricia is not able to discuss the information that is provided to her so it is not possible to tell whether she retains it. She said she would follow a meal plan but she had not managed to do so even with support in hospital. The second doctor considered that she lacked capacity to take decisions as to her medical treatment as she could not understand the necessity for improving her nutrition.
A third confirmed that Patricia has a severe eating disorder, but he was of the view that she did have the capacity to decide on her medical treatment and that she did not wish to be treated against her will. He had not seen her recently and she had deteriorated since then.
Patricia had been able to increase her calorie intake from around 700 to 800 calories per day to 1,200 to 1,300 per day, whilst the proceedings as to whether nasogastric feeding should be ordered were pending.
It is not, however, in the view of the Trusts, sufficient to sustain her in the long term or to justify discharge of the proceedings. The clinicians took the view that she needs to increase her intake to over 2,000 calories a day, such that she would then be sufficiently well to be discharged to an eating disorder unit or to go home.
The first doctor’s evidence that Patricia has “a partner” – the partner being anorexia –“controlling the other part of her mind, stopping her carrying out what she knows is actually in her best interests” – was very illuminating.
When asked whether all patients with anorexia nervosa lacked medical capacity, the doctor said that some have capacity when they manage to overcome and control their anorexia and improve.
The second doctor said that she had told Patricia she was dying, and Patricia’s response was, “I know, but…” thereby onveying to the doctor that she did not and could not understand how serious the situation was and that she could die at any moment.
The judge decided not to order nasogastric feeding but accepted the evidence of the clinicians saying capacity was not currently there.
The doctor who knew Patricia the longest was clear in her view that, at present, the anorexic thinking takes over such that Patricia cannot decide for herself and the judge accepted this evidence.
The judge concluded that whilst he still felt he had jurisdiction based on incapacity, Patricia should have her autonomy on the basis that it is not in her interests to force-feed her against her wishes, as it would be futile and cause her nothing but distress and turmoil.
If Patricia was to get herself to a position where she was well enough to go back to an SEDU unit or to go home, by taking over 2,000 calories a day, the judge was open to a different evaluation.
Comment:
One is struck, reading this, and the case above, that there is no real bright line difference between an unwise decision and an incapacitous one. When the court wants to save someone’s life, incapacity is what they need to find, and relying on what has come out of the person’s own mouth as their rationale for their stance, is all that there is sometimes.
If a person wants to die, they have one lawful option, albeit that they can still be sectioned: they need to make an advance decision to refuse treatment, and then they have to control themselves so as not to engage with any of the experts, trying to scrutinise their stance, such that no argument can develop as to the meaning of their stance. If a person is regarded as a threat to themselves, and suffering from mental disorder, they can be sectioned. But this case and others show that regardless of a compulsory regime, the impact on treating staff as well as the impact of the treatment ON the patient can be such that no court will lay down the legal justification for it, by way of the encouragement of a best interests decision.
So a finding of incapacity will not always be the way IN to intervention – even if there is a need to preserve the prospect of a future for the person who may one day be restored to wholeness.