Neutral Citation Number: [2016] EWCOP 56
Case No: COP1299535
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 30/12/2016

Before :

MR JUSTICE HAYDEN
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Between :

	CHESHIRE & WIRRAL PARTNERSHIP NHS FOUNDATION TRUST	Applicant	
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	Z	Respondent	

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Hearing date: 30TH December 2016
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Judgment Approved
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 respondent 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.

Mr Justice Hayden :
1.	I am concerned in this matter with an application brought by Cheshire and Wirral Partnership NHS Foundation Trust in respect of Z, who is a 46 year old woman with a history of anorexia nervosa, first diagnosed when she was 15 years old.  Her treating clinician, Dr. Matthew Cahill, has in his helpful and detailed report, set out the history of Z’s treatment in the intervening three decades.  I do not propose to burden this judgment with the minutiae of that history.  It suffices to say that, despite the fact that she has been admitted to hospital on innumerable occasions and received many different treatments, outpatient support and therapeutic input, it is impossible to identify any time in her history where Z has made anything which could be characterised as a sustainable recovery in terms of her weight gain.  It is noted that Z’s notes contain references to a number of traumatic experiences in her childhood and a depressive episode in her teenage years. 
2.	Z has frequently disengaged with appointments.  She has never, upon review of the records and the history, engaged in any meaningful way with treatment, particularly in relation to her prescribed diet.  Dr. Cahill described Z as having ‘an extreme and serious manifestation of eating disorder’.  Dr Tyrone Glover, approved under s12 (2) of the Mental Health Act, having specialist expertise in treatment of anorexia nervosa (ICD-10 code F.0) provided an overview second opinion in this case at the request of the Official Solicitor.  He describes Z’s condition as ‘severe and unremitting’, at times ‘life threatening’.  Z has ‘an entrenched fear of weight gain of a severity infrequently seen in anorexia nervosa’.  In oral evidence Dr. Glover considered that this level of eating disorder fell at the most serious end of the spectrum of gravity.   Thus, if 0 is the least serious and 10 the most, Dr Glover concluded that this case is a 10.
3.	In addition to her anorexia and underlying psychological problems, there has inevitably been a raft of other health issues.  Most notably Z suffers from osteoporosis, which has developed to such a severe degree that her entire skeleton is compromised in a way that would otherwise only be seen in the very elderly.  In addition, Z frequently suffers from what might generally be called metabolic disturbances which are a direct consequence of her own distorted strategies to lose weight; most significantly perhaps she has more frequently been observed to have a low white cell count.  
4.	Ms Roper, who appears on behalf of the Official Solicitor, has endeavoured to put Z’s present situation in the context of its history, analysing the material which is available to see if there are patterns which might illuminate the way forward.   General disengagement has led to a gradual decline but in 2016 there has been what is described as ‘a stepwise deterioration’ which has led to a significant fall in weight (BMI in October 2016 is recorded as 9.6).  Again, inevitably blood sugar readings are persistently low and have required medical management for persistent hypoglycaemia.  Z’s profoundly malnourished state and life threatening physical condition required detention under s3 of the Mental Health Act in November 2016.  Thus, Dr. Cahill and his team have concluded that Z’s position is now so grave that they are required to contemplate a limited range of options, each of which is, in a different way, unattractive.  
5.	Firstly, the Trust sought a declaration that Z lacked the capacity to make decisions about her care and treatment herself.  On 19 December 2016, when sitting in the Royal Courts of Justice in London, I made a declaration that Z lacked both the capacity to conduct these proceedings and to make decisions as to whether to undergo treatment for her anorexia including whether to accept or refuse feeding by naso-gastric tube. As Mr. Patel, who appears on behalf of the Trust, has reminded me, such a declaration was not contentious and the Official Solicitor agreed that the evidence supporting this conclusion was compelling.  Z has never fully comprehended the consequences of her behaviour in relation to food or nutrition which is the core issue of the case.  Dr Cahill came to the careful conclusion after long consideration that there were essentially three options open to the treating team.  It is necessary for me to consider each of them individually.  
6.	The first possibility is to continue treatment under section 3 of the Mental Health Act 1983 which would involve detention in hospital and naso-gastric feeding under physical restraint until Z’s weight and physical health improved to the point where it would be possible to discharge her.  Dr Cahill has had some experience of forced naso-gastric feeding, by way of physical restraint.  His experience however is limited, reassuringly so.  It is, to my mind, self-evident that this is extremely difficult to deliver, particularly in respect of a patient who is determined to resist the process.  
7.	Not only is there a real possibility that the patient would seek to pull the tube out but, I have been told, that the determination to resist its insertion in the first place, by effectively controlling the swallowing process, makes this option very difficult to contemplate.  If there were a prospect of this succeeding at all in any meaningful way it might at least theoretically be a proportionate interference with Z’s personal autonomy.  However, as Dr Cahill explained, on a practical level, this process would require three bolus feeds per day and at least 3 members of staff permanently present to carry out the necessary restraint, possibly more.  This also raises the possibility that Z might, during the night, seek to remove the naso-gastric tube. The preponderant consensus is that this would be most likely. If so, it would, of course, require the whole process of insertion to be recommenced afresh the following day.   In addition, given her poor physical health - her flawed cardiac function and the severe osteoporosis that I have already referred to, Drs Glover and Cahill agree that there is a real risk that feeding under restraint here would be dangerous, to the extent that death might be caused iatrogenicaly i.e. the treatment risks killing the patient.  The obvious psychological distress to Z and, if I may say so, to her parents and to the medical staff is difficult to justify.  In addition, Z’s osteoporosis is so severe that the medical consensus is that physical restraint faced with the resistance that is likely would probably result in significant musculoskeletal injury.
8.	The second option also involves continuation of feeding, again under section 3 of the Mental Health Act 1983, involving detention in hospital, but the feeding to take place under chemical sedation.  The objective in both the first and second options would be to return Z’s BMI (presently 9.5) to a level which, whilst remaining below the norm would at least offer her further short term survival.  Given her present parlous state of health, the medical consensus is that sedation would involve a very significant risk, most particularly of respiratory or cardiac arrest.  Anaesthesia would plainly be inappropriate even for insertion of the naso-gastric tube.  Of course, even with the sedation, the risk that Z may try to remove the tube, whilst diminished, is not extinguished.  Dr Cahill concludes that there is a “very high risk” of respiratory or cardiac arrest as well as the risk that the sedation option could lead to some other iatrogenic cause of death, which, as I referred to in relation to option 1, would be very traumatic for Z and all concerned.  
9.	Both options considered in isolation have profound disadvantages. It is also clear that the severity and duration of Z’s anorexia itself indicates a resistance to treatment.  From this it is reasonable to predict, and I do, that Z will use her very best efforts to resist these options.  Dr Cahill has plotted what he refers to as a “stepped deterioration” in which Z’s health has deteriorated in consequence of a ‘particular treatment approach’ and from which she never recovers to the state of health that preceded that approach.  Dr Glover told me, in evidence, that whilst it may be counter intuitive to the lay person, the severe anorexic is in fact inspired by physical deterioration to reinvigorate the effort to lose weight.
10.	The third option is that Z should be discharged from the framework of the Mental Health Act 1983 and treated, if she is prepared to engage at all, only on a voluntary basis.  Like the other options that I have already referred to, this option is subject to a structured plan which has at its heart the objective of providing support and encouragement to comply with a feeding programme and general therapeutic assistance.
11.	Reflecting his detailed knowledge of his patient, who has now been in his care since February 2011, Dr Cahill noted that Z at least fares better emotionally when she is not subjected to an enforced medical regime.  Thus, it is hoped, and, in my judgement, it can be no more than that, that an indication to her that the hospital, the Trust and the doctors will withdraw from her life, to respect her wishes and her autonomy, may lead to a sense of emotional wellbeing which may at least enable her to cooperate and in some way, perhaps, to prolong life.  It is only when this option is contrasted against the previous two that it has any real credibility.  It is almost certainly a pious hope that Z will, if left broadly to her own devices, manage effectively to confront this terrible illness, which has darkened her life since she was 15.  I am aware that her parents express a belief that she can manage this and I have no difficulty in understanding why they might cling to that hope.  I however must be more objective in my analysis and reasoning.  Although it will be a terribly painful for Z and her parents to hear it expressed in these terms, I have come to the clear conclusion that I am choosing between 3 palliative care options.  
12.	Of course the further and obvious benefit of this third option is that it allows Z to take responsibility for herself, in so far as her illness permits her to do so. Through Dr Cahill and Mr. Patel, the Trust have been at pains to emphasise, and it is important that I repeat it, that the hospital doors are always open to Z and that she is encouraged by them to engage to whatever extent she can.
13.	As I have said, at 46 years of age, Z has an extremely severe and chronic anorexia nervosa.  In considering her ‘best interests’ the Court, through the offices of the Official Solicitor, will look not only at what the doctors and nurses say but will also look at the broader canvas of her life, family and her interactions with the wider world; see: Re S (Adult Patient: Sterilisation) [2001] (Fam) 15; County Durham & Darlington NHS Foundation Trust v SS [2016] EWHC 535 (Fam).  Sadly, in this case that has proved to be a very short exercise.  Z’s world, since she was 15 years of age, has been entirely circumscribed by her eating disorder.  It has been described as ‘her profession’.  I have been told her anorexia is how ‘she identifies her place in the world’. It has disabled her from making any significant interpersonal relationships or developing any kind of interests or hobbies beyond watching television programmes with her parents, who live only a few doors away.  
14.	All this of course does not augur positively for the future.  Z’s own wishes (and feelings), communicated through the Official Solicitor on her behalf, are that she would wish to stay at home with her parents where she believes she is likely to survive. Despite a lifetime of evidence to the contrary she asserts, without rationalisation, that she will “do much better at home”.  As I have said Z is supported in that perception by her parents.  
15.	Dr Glover met with Z in the course of his assessment for this 
Court. It is plain that, despite his experience and what I am sure is his easy manner with his patients, Z was unable to engage with him in even the most gentle of enquiries.  When faced with the kind of realities I have set out she simply contradicted Dr Glover as she had done Dr Cahill.  
16.	Dr Glover and Dr Cahill discussed the options.  They both agreed that physical restraint in a patient whose health is as compromised as Z’s would not only likely result in significant muscular skeletal injury, as analysed above, but would also cause profound psychological distress.   Dr Glover reviewed the medical notes going back a decade with the kind of objectivity and independence that, in my experience, is best achieved by an expert in the field who has not had to confront the white heat of day to day clinical treatment with the individual patient.  That is not intended to be in any way discourteous to Dr Cahill for, as I have set out, his assessment of the case has not been challenged on any level and has withstood appropriately rigorous scrutiny in this court.  Dr Glover roots out some striking facts, for example, that Z has been admitted for inpatient treatment for her anorexia or related issues on over 20 occasions.  Many of those admissions have been under the restrictive regime of the Mental Health Act and it is in that context that he advises there is no evidence that Z has ever engaged with weight restoring treatment.  Thus, Dr Glover concludes as follows: 
i)	There is no doubt whatsoever concerning [Z]’s diagnosis, she suffers from a severe form of Anorexia Nervosa (ICD-10 code F50.0) and has done since 15 years of age.  In her discussions with him and Dr Cahill she describes what Dr Glover describes as classic symptoms of body image dysmorphia and fear of gaining weight;
ii)	He is in agreement with Dr Cahill there can be no doubt [Z]’s condition is within the most severe encountered within clinical practice;
iii)	[Z]’s weight has now reached a point where her life is in danger, a fact to which she has no normal emotional response;
iv)	Her own assessment of her prognosis at home is entirely unrealistic;
v)	There can be no doubt, having regard to the broad medical canvas, that her diet will remain inadequate, she will fail to gain weight and therefore remain in grave danger of sudden death.
17.	It struck me that there may be a shade of difference between Dr Cahill and Dr Glover as to the prognosis for life expectancy but if I am correct in my analysis, it is, sadly, academic.  It was obvious to me, having heard from Mr. Patel, on behalf of the Trust, on 19 December 2016, that Z’s position was already grave and, given her vulnerability to sudden death from a variety of causes, whether she survives for 2 months or 12 months, it seems to me is a calculation which does not in any way illuminate where her best interests lie in the meantime.  
18.	I am aware that the Courts have had to confront a number of particularly challenging cases involving patients with chronic anorexia nervosa.  In A Local Authority v E [2012] EWHC Peter Jackson J considered that treating E was a justifiable violation of her Article 3 and 8 rights, in circumstances where the evidence was that she had a 20-30 % chance of success if maintained for 12 months in a specialist unit where she would be forced fed by naso gastric tube, either by sedation or physical restraint.  It has to be said that the prognosis for successful treatment in that case was strikingly different to the facts presented in this case.  In Re L [2012] Eleanor King J (as she then was) found herself confronted by circumstances where treatment was assessed as futile, given L’s frailty and the likelihood of treatment itself causing death.  That strikes me as a similar risk matrix to that which confronts me here but, that said, I have reached my conclusions in this case on its specific facts and not by way of a comparative analysis with the case law.  The case law has been helpful only to the extent that it confirms the way in which the decision should be approached. 
19.	In a recent case: Betsi Cadwaladr University Local Health Board v Miss W [2016]  EWCOP 13, Peter Jackson J agreed with the medical evidence which advised ceasing coercive treatment and discharging W home to her parents with community support (§21, §48).  Though he did not consider that any further admissions would prolong W’s life, he took the view that it was “the least worst option” for her (§48).  It does not really matter how option 3 here is characterised, it is ultimately the only proposal which carries any vestige of hope and most effectively preserves ’s dignity and autonomy.
20.	By way of completeness I should say that Ms Roper, on behalf of the Official Solicitor, raised a point in closing submissions as to the jurisdictional reach of the Court of Protection in proceedings under the MCA 2005.  She reminded me that s.28 MCA provides as follows:
28	Mental Health Act matters
(1) Nothing in this Act authorises anyone—
(a) to give a patient medical treatment for mental disorder,
 or
(b) to consent to a patient's being given medical treatment for mental disorder,if, at the time when it is proposed to treat the patient, his treatment is regulated by Part 4 of the Mental Health Act.
(1A) Subsection (1) does not apply in relation to any form of treatment to which section 58A of that Act (electro-convulsive therapy, etc.) applies if the patient comes within subsection (7) of that section (informal patient under 18 who cannot give consent).
(1B) Section 5 does not apply to an act to which section 64B of the Mental Health Act applies (treatment of community patients not recalled to hospital).
(2) “Medical treatment”, “mental disorder” and “patient” have the same meaning as in that Act.

21.	This section effectively prohibits the making of a declaration concerning coercive treatment where it falls within Part IV of the Mental Health Act 1983.  In the way that this order has now been drafted I do not need to determine the point because in approving the third option, I recognise Dr Cahill will now discharge Z from detention under the Mental Health Act to her parents home.  Accordingly, the declarations and orders I make are pursuant to the Mental Capacity Act 2005.  That said, I consider that given this application is heard in the Court of Protection, sitting in the High Court, I would have had the scope to make the declarations under the Inherent Jurisdiction and so the debate seems to me to be arid.  
22.	Decisions of this nature impose very considerable intellectual and emotional burden on all those involved.  When I first heard the case on the 19th December 2016 I was asked to endorse the instruction of Dr Glover.  Whilst I was happy to do so and have found his contribution to be very valuable I was concerned that delaying the decision might be contrary to Z’s welfare.  Such was my concern that I vigorously circumscribed the timescales for the filing of the report.  Moreover, in order to secure a court hearing I listed the case on the 30th December 2016 when the High Court would not ordinarily be sitting.  I am extremely grateful to Dr Cahill and Dr Glover for attending at Court today and taking time away from their families to do so.  I similarly extend my gratitude to the lawyers.  I have now said in a number of cases in the Court of Protection that the avoidance of delay should be regarded as a facet of Article 6 (i.e. a fair trial) in these cases.  In this respect the Courts must play their parts too and ensure that case management centres upon the needs of the patient which cannot be derailed by administrative pressures faced by Trusts or the Courts. 
23.	We have been sitting today in open court; the Judgment will be published, in the usual way, but for practical reasons it will not be possible to do so until January 2017.