Court Of Protection – Force Feeding Decisions

With the Court of Protection making decisions concerning all aspects of a person’s care, a decision they may sometimes be required to make is whether or not a person should be force-fed. This becomes necessary when a person is at risk of serious injury due to a lack of food intake and treatment is required in order to prevent serious physical harm and in more significant cases, the risk of death.

Z NHS Foundation Trust & Anor v Patricia & Ors [2023] EWCOP 41

Case Summary

In the recent case of Z NHS Foundation Trust & Anor v Patrcia & Ors, the Court of Protection considered whether it was in the Protected Party’s best interests to be force-fed by way of nasogastric feeding. The Protected Party had an eating disorder and her calorie intake was so low that the Protected Party was near death which meant force feeding may have been required to prevent the Protected Party’s death. The Protected Party had previously consented to nasogastric feeding but refused to continue. The Protected Party’s health subsequently began to deteriorate but after the application was made the Protected Party made attempts to increase her calorie intake herself and some minor progress was made in response.

On initial consideration of the application the judge found it was not in the Protected Party’s best interests to be force-fed on the basis that the Protected Party had increased her calorie intake herself. The Court of Protection noted that the Protected Party’s previous nasogastric feeding had caused significant distress and only resulted in a short-term improvement and therefore, it was in the Protected Party’s best interests to make improvements herself.

The Court of Protection then had to determine whether the Protected Party had the capacity to decide whether or not she should be force-fed. Capacity is decision-specific and in this case, the Court of Protection had to consider whether the Protected Party retained capacity to decide whether or not she should be force-fed. In order to retain capacity the Protected Party must be able to understand, retain, and weigh up the information relevant to the decision in order to make and communicate the decision. If the Protected Party was able to do this but still made an unwise decision, she would be assessed as retaining capacity as an unwise decision does not amount to a lack of capacity.

The Protected Party submitted evidence of how her capacity was demonstrated when the Protected Party increased her calorie intake herself. This was challenged based on the Protected Party’s longstanding issues with her eating disorder and the experts felt the Protected Party was unable to understand the seriousness of the situation.

Whilst the Protected Party made some improvements the experts felt this was in response to the application only and once the application was dealt with, the Protected Party would make no further progress. The Judge agreed with the experts and found that the Protected Party lacked the capacity to decide on the treatment. The decision that nasogastric feeding was not in the Protected Party’s best interests remained, however, as the Judge again referred to the need for the Protected Party to make improvements herself, and the force feeding only allowed for a temporary improvement in the Protected Party’s health.

Comment

This case demonstrates the Court of Protection’s process when making a decision on behalf of a Protected Party. Whilst the Protected Party lacked capacity in this case, the Court of Protection did not find it in the Protected Party’s best interests to order force feeding. The Court instead favoured the Protected Party’s autonomy in the hope this would encourage long-term improvements as opposed to a quick short-term fix.