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Anorexia and authority to withhold treatment: ‘A particularly sad case, even by the standards of the Court of Protection’ (Lieven J)

21st May 2021

Emma Sutton acts for the applicant Mental Health Trust, and Caroline Hallissey for the respondent Acute Trust.

In A Mental Health Trust v ER (by her litigation friend the Official Solicitor) & An NHS Foundation Trust [2021] EWCOP 32, the applicant Trust, represented by Emma Sutton, sought authorisation to withhold life sustaining medical treatment in the form of clinically assisted nutrition and hydration to a patient, ER, who had a long standing diagnosis of anorexia nervosa. Due to a prolonged history of hospital admissions where ER would put on weight whilst in hospital, only to lose it again upon discharge, the Trust did not seek to again treat ER against her will (via the Mental Capacity Act 2005 or the Mental Health Act 1983), with the consequence that she would sadly die.

ER had capacity to make decisions regarding other physical health needs, including  treatment for her end stage renal disease which required dialysis 3 times a week. Caroline Hallissey represented the acute Trust and ER’s treating clinician indicated that ER was likely to have a life expectancy of between 6 and 12 months arising from her renal failure.

Having met ER prior to the commencement of the final hearing, and due to the differences in ER’s decision making ability, Mrs Justice Lieven wanted to ensure that ER’s capacity to make decisions regarding treatment for her anorexia was properly analysed. The court heard oral evidence from Dr Cahill, a consultant psychiatrist with significant expertise of treating patients with particularly severe anorexia, and ultimately accepted the clinical and expert evidence that ER lacked capacity.

The Judgment helpfully summarises the relevant authorities regarding anorexia and capacity, and highlights the complicating factor in this particular as being ER’s terminal renal condition and how that issue impacted on ER’s decision to refuse treatment for her anorexia nervosa. Please see here for the judgment.

Emma Sutton was instructed by Sophie Barbour of Hempsons and Caroline Hallissey was instructed by Simon Lindsay of Bevan Britton.

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