Medical Treatment: Decisions and the Law

11. Feeding

INTRODUCTION

Refusal of nutrition and hydration is often associated with mental disorder. The compulsion not to eat or drink can in some cases be so severe as to be life-threatening. These cases must be distinguished from those who capably and deliberately refuse to take food or drink, such as the rational prisoner who wishes to go on hunger strike in protest at his conviction or someone who wishes not to prolong their life in the face of the onset of a devastating illness.

The principal diagnostic category where the sufferer exhibits self-starvation  is anorexia nervosa. However, food refusal manifests itself as a symptom in a number of other mental disorders, including psychotic disorders and personality disorders. Most notably in cases of borderline personality disorder, it is not uncommon for the patient to become compelled to harm himself and this may on occasion take the form of deprivation of food.

Many of the cases concern anorexia. This serious condition is associated with a significantly heightened risk of dying and resistance to treatment. Along with involuntary feeding, issues include sedation and deprivation of liberty. Treatment plans can be very lengthy and the court will have to consider medical provision over a significant period.

Disorders of eating tend to be suffered more by women than men, and the onset is generally in the teenage years. The prevalence of the disorders among those who are just on the point of attaining their majority – and so releasing themselves from even the theoretical control of parents – adds to the challenges of ensuring that treatment is lawful.

Distorted beliefs about eating are a pathognomonic feature of anorexia nervosa and hence the clinical diagnosis can support a conclusion that the patient lacks the requisite capacity to decide whether or not to eat. However, under the MCA the assessment of capacity is decision-specific and it is common that people being treated for anorexia will have capacity over other matters.

Procedure – declaration

Where a patient lacks the capacity to consent to or refuse treatment rendered necessary by an eating disorder, it may in certain circumstances be given under s 63 MHA or in reliance on s 5 MCA, without reference to the court. An application to court for a declaration should however be made where:

  • there is a dispute either as to the patient’s capacity, or as to what is in the best interests of the patient – such a dispute may be with the patient himself, or others who seek to represent the interests of the patient (such as family members, or an IMCA), or between medical professionals or other public bodies;
  • providing the treatment in question will involve more than transient forcible restraint or depriving the patient of his liberty;
  • the treatment falls by virtue of any other circumstances within the definition of serious medical treatment as defined by PD 9E: an example of this is where the consequences of the proposed course of action are serious and irreversible, such as An NHS Foundation Trust v Ms X where a Trust obtained court approval of its decision not to  give further treatment which the patient did not want (which is not, of course, the same as withholding any treatment);
  • it is thought likely that proceedings will be taken against those providing or failing to provide the treatment.

Generally the application for an adult lacking capacity will be made to the Court of Protection under the MCA. However, the application should also be made to the High Court if the inherent jurisdiction may need to be invoked. This is relevant where a declaration is sought that it is lawful not to treat under the MHA, and also where the patient may be ‘ineligible’ by virtue of Schedule 1A MCA to be deprived of their liberty under s 16A MCA. In that situation it has been held that the Court of Protection cannot authorise the deprivation of the patient’s liberty but that the High Court can do so by the exercise of the inherent jurisdiction.

Given the predictability of a refusal of treatment during a crisis, preparatory steps should be taken as long beforehand as possible. These include:

  • A full discussion with the patient, where this is practicable, to consider the options which will confront the patient and the carers if, and when, there is a crisis.
  • An assessment at as early a stage as possible of the patient’s capacity to consent to or refuse medical treatment. The patient may have capacity to make advance decisions about treatment for a crisis before that event occurs, even if capacity is likely to be lost at that time. If possible, patients should be encouraged to decide for themselves, when capable of doing so, what should happen. Full records of any such decision must be made and if possible approved by the patient. If these steps are taken, many legal difficulties will be avoided. However, it should be noted that advance directives cannot prevent compulsory treatment under the MHA.
  • If the point comes when treatment considered to be necessary to save life is being refused and no prior advance consent or refusal is available, an assessment must be made as to the urgency of the case. This should be realistic. False alarms help no-one but, on the other hand, delay should not be allowed where the patient’s life is at risk.
  • A decision should be made as to whether the patient is suitable for treatment under the MHA. If this is appropriate, the necessary steps to detain the patient and provide treatment should be undertaken. In general, no court application will then need to be made by those treating the patient.
  • If MHA treatment is inappropriate, consideration must be given to the patient’s capacity to refuse the proposed treatment. If the patient  is found to possess legal capacity, then his wishes must be respected. If there is a substantial dispute about capacity it will be appropriate to make an application to the court for a declaration as to capacity.
  • If the patient lacks capacity, but treatment under the MHA is not available, an assessment should be made of whether the treatment is nonetheless in the patient’s best interests. Factors taken into account will include: the wishes and views of the patient expressed during interludes when he had the relevant capacity; the views currently expressed by the patient; the views of close family or partners (or an IMCA, if appointed) on what they perceive the patient would have wanted; the likely effectiveness of the treatment; the availability of alternatives; and the risks and benefits of the treatment proposed.
  • If treatment is agreed by those responsible for the care of the incapacitated patient, generally no court application will be necessary, but if force is required to administer such treatment it would be prudent to seek the approval of the court and if the arrangements for treating will amount to a deprivation of the patient’s liberty, either the authority of the court or a standard or urgent DOLS (‘deprivation of liberty’) authorisation under Schedule A1 of the MCA must be obtained if the MHA is not applicable.
  • If an application is to be made, however urgent the case, evidence of the need for treatment, the patient’s incapacity, and the reasons why the treatment is in the patient’s best interests will be required. Appropriate statements of the relevant evidence should, therefore, be prepared.
  • If it is decided to make an application to the court, as much notice as possible should be given to the patient and practical assistance given to enable him to obtain legal advice and assistance. The Official Solicitor should be notified and, unless there is an obvious alternative, invited to become the patient’s litigation friend.
  • The same steps should be taken where the declaration sought is that it is lawful not to provide treatment which is available under the MHA.
  • Interim declarations can be granted and hearings can be conducted by telephone where appropriate, and at any time of the day or night.

Contents

  • A Introduction 11.1
  • B Children 11.2
  • General principles 11.2
    • Children under the age of 16 11.2
    • Children aged 16 and 17 11.3
    • Effect of disorder on Gillick competence 11.4
    • Exercise of court’s jurisdiction: general approach 11.5
  • Deprivation of liberty 11.6
    • MHA 11.7
    • Informal admission for treatment of a mental disorder 11.8
    • The scope of parental authority outside the MHA 11.9
    • Inherent jurisdiction 11.10
    • MCA 11.11
  • Procedure 11.12
  • C Adults 11.13
  • Competent adults – general rule  11.13
  • Adults lacking the capacity to consent 11.14
    • (1) Treatment under the MHA 11.14
    • (2) Where treatment cannot be provided under the MHA 11.15
  • Competent adults detained under the Mental Health Act 1983 11.16
  • Procedure – declaration 11.17
  • Procedure – injunction 11.18
  • D Conclusion 11.19

updates and appendices will be provided for this chapter in due course

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