“My Wish To Stop Treatment”

The Court of Protection is a specialist Court with a mantra in supervising and reviewing financial decisions made for protected parties (people who lack capacity) by their deputies and attorneys, and where necessary, making decisions when a protected party’s health and personal welfare is at risk. However, it is only normally when a case tugs on our heartstrings that the seriousness of the Court’s jurisdiction is fully appreciated.

The recent judgment in Northamptonshire Healthcare NHS Foundation Trust v AB [2020] EWCOP 40 underlines the Court’s role in matters of life and death.

Northamptonshire Healthcare NHS Foundation Trust v AB

Case background

This particular case involved a 28 year old protected party who suffered from severe anorexia, developed during her teenage years and formally diagnosed as a severe eating disorder. The illness had some very serious effects on her wider health and most treatment had failed to make any significant difference. The protected party was at risk of imminent death from cardiac arrest and the only available option was to sedate her and feed her through a tube. She was believed initially to lack capacity to make the decision herself, due to the psychological effects of her condition.

It was widely accepted that she would not engage with the treatment, would resist the treating clinicians and the stress and struggle involved would probably cause her to experience cardiac arrest. Given that the NHS Trust knew she might die if she had no treatment at all, but were not sure if the protected party had the capacity to decide to refuse treatment, proceedings were started in the Court of Protection under sections 4 and 15 of the Mental Capacity Act 2005.

Legal proceedings

The NHS Trust sought declarations from the Judge concerning the protected party’s capacity to decide and if it was decided that she lacked capacity, whether or not the treatment was in her best interests.

The protected party was able to express her wishes and feelings to the Court and was clear in not consenting to “coercive treatment” and gave the Court a very moving account, describing the things she enjoyed being able to do in her day to day life and the pain she knew she would suffer if she was treated in the manner proposed. Her parents agreed with her. She was found to have “litigation capacity” by an expert psychiatrist but the expert reported that she could not make a decision about medical treatment, because the very nature of her anorexia was such that she had an “overriding fixation” on reducing calories and could not weigh up other factors.

The Judge believed that this was part of the protected party’s “subjective “values or outlook”” (at para 26) which she was entitled to rely on when making a decision. But he later came to the view that this particular symptom of her illness was affecting her ability to rationally decide what was in her best interests, to the extent that it overpowered her clear desire to live longer and enjoy the life she had. The Judge decided that the protected party lacked capacity to decide whether she should be tube fed.

However, the Judge agreed with the NHS Trust, the protected party and her family that tube feeding was not in the the protected party’s best interests. There was a very real risk that it would result in her death. The Judge concluded (at 67):

“(P) is quite right to remind me that she has at last found a path for herself. She wishes to continue along that path, living the life she loves for as long as she can and that is what this court would wish for her”.