This is a guest post by Jack Harrison. Jack is a practising barrister at 18 St. John Street in Manchester and specialises in child law. He tweets as @JackHarrison.
Clara Glynn’s excellent drama, Life Chances, was broadcast on BBC Radio Four on 13 January as part of the ‘Behind Closed Doors‘ series. It tells the story of Emily Cross – an adult whose life is fading away at the hands of crippling anorexia nervosa, an eating disorder causing the sufferer to limit their energy intake to an extreme. The drama surrounds the question of whether Emily can be force fed.
Mr Justice Jackson, as he then was, brought the devastating problem to life two years ago in the case of W [2016] EWCOP 13:
Anorexia nervosa (from the Greek an-/without –orexia/appetite) is a pernicious condition. In its severe form it is life-governing and potentially fatal. In order to stay alive, a human being needs air, water and food. The normal energy intake for an adult woman is about 2000 calories a day. A healthy Body Mass Index (BMI) is between 18.5 and 25. If the body uses more energy than it gains over a prolonged period, the result is malnutrition, with a global effect on well-being. The physical consequences can include endocrine disorder preventing the onset of puberty, slow heart rate, low blood pressure, hypothermia, anaemia, reduction in white blood cells, reduction in bone density and reduced immune system functioning. The social consequences for individuals and their families can be devastating, as they damage or destroy normal social development. The psychological consequences for the sufferer include a mental life dominated by thoughts of food. The act of eating is all too easy for most people in developed societies. But for the sufferer, whose life would be utterly transformed by the most modest food consumption, the ability to eat is seemingly overpowered. Years are spent thinking and talking about eating, but talking about eating is not the same thing as eating.
And so to Emily. She lacks the capacity to make a decision about whether she should be force fed. The doctors think that it’s in her best interests to be force fed, and so Emily finds herself the subject of an application to the Court of Protection for permission to administer treatment.
Why is an application necessary? Because Emily doesn’t want to be force fed.
About Emily
Emily collapsed on Monday in Kentish Town. She cannot walk unaided and she has lost about half her hair. Her nails and toenails have fallen off and she is suffering osteoporosis. She is hyperglycaemic. At 5 stone and 5ft 6inches, she has a BMI of 11.2. She is 35 years old.
Emily has anorexia, and ‘Life Chances’ takes us into her world. Or, more specifically, the Court of Protection. We are taken into the court room, as counsel for the NHS trust where Emily is in hospital outlines the necessity of force feeding to the court. We are told that force feeding – a process of nearly a year, where Emily is sedated and a tube inserted into her stomach to feed her – is her only hope. It would return her to health, just like it did in 2017, and the time before, and the time before. And so the Fat Boy went on ( Emily’s consultant, named after the bomb that decimated Hiroshima in 1945). The process of sedation can go on for months – at one time she was in and out of consciousness for 3 months. This had to happen, we are told, because otherwise Emily would pull out the tubes.
Emily does not want to be force fed. She wants to go home to her flat and her childhood friend and flatmate, Jemima. Emily promises Jemima that she will eat if she is allowed to go home, but in reality we know that she will not. If she went home she would be without treatment and her death was a matter of ‘when’ and not ‘if’. If she was treated, there was a chance that she would be afforded another chance at life.
The choice for the judge was a stark one.
So, why not just ‘section’ her?
This is the first question I think many will ask. It went unexplored in the drama and perhaps could have been dealt with to help the listener understand why they are in the room. I think it’s an important question because our perception of how we treat eating disorders in 2020 is still pretty ill-informed. Some consider anorexia to be treated in the same environment as ‘One Flew Over The Cuckoo’s Nest’.
Emily is not, as is often the case, under ‘section’ – by that I mean she is not being compulsorily detained under the powers contained in the Mental Health Act 1983. It has long since been the case that such patients can be force fed by virtue of the powers contained in Section 63 Mental Health Act 1983 – the power to administer treatment without consent for the treatment of a mental disorder. The Care Quality Commission guidelines state that only the most severe manifestations of anorexia nervosa may be considered to require compulsory admission under the Mental Health Act 1983.
In spite of her dire situation, Emily is not under ‘section’. Instead she is in hospital in a malnourished state, but lacks capacity in relation to only her nutrition and force feeding. Where a patient lacks capacity in relation to an aspect of their treatment, in English law, the Court of Protection may make decisions on their behalf in accordance with their ‘best interests’. And so Cara Glynn takes us to court.
It may help to start by looking at the context in which these proceedings take place.
Assessing capacity
How do we decide if Emily has capacity? Section 3 Mental Capacity Act 2005 reads:
“… a person is unable to make a decision for himself if he is unable—
(a)to understand the information relevant to the decision,
(b)to retain that information,
(c)to use or weigh that information as part of the process of making the decision, or
(d)to communicate his decision (whether by talking, using sign language or any other means).”
Capacity is understood as functional and capable of fluctuating. It can be the case that a patient can lack capacity on a Monday but have regained it by Wednesday. There is a legal presumption of capacity established in the Mental Capacity Act 2005 and guidance for professionals about how to apply the principles of the Act in the Code of Practice.
Emily shares an initial – I am sure not by sheer coincidence – with E in Re E (Medical treatment: Anorexia) [2012] EWCOP 1639.
And so the question comes: how can it be that somebody can lack the capacity to make a decision just about her nourishment?
Jackson J again brings clarity in Re E:
“… there is strong evidence that E’s obsessive fear of weight gain makes her incapable of weighing the advantages and disadvantages of eating in any meaningful way. For E, the compulsion to prevent calories entering her system has become the card that trumps all others. The need not to gain weight overpowers all other thoughts. By way of example, in August 2011, she was described as smiling and laughing during a conversation, but when the question of weight gain and the achievement of a BMI of 16 was mentioned, she began to cry.”
That ‘obsessive fear’ was the foundation of Emily’s objection and in my view that should have been made clear throughout as the reason she lacked capacity. A judge was not making decisions about Emily’s welfare, and Emily was not in a hospital bed against her will, because she had anorexia. Her diagnosis alone was not the reason. In fact, her diagnosis is dealt with in different ways depending on how serious the situation is. This should have been made clear. Why? Because eating disorders are still shrouded in mystery. And be the listener Joe Public, or a sufferer of anorexia at whatever stage, it is right to give the reassurance that this is an extreme case, and the roadmap that leads to this tragic situation playing out before us.
It sounds idealistic, but amongst the listeners will have been some of the up to 3.4 million people estimated to suffer from an eating disorder in the UK. The danger with dramas such as this is that – because of the compulsory nature of the treatment being discussed – they act as a deterrent for those who might otherwise seek help. The message should have gone out that this is atypical of such cases.
Assessing Best Interests and the Law
If the court is satisfied that P (‘P’ is the term in the Mental Capacity Act 2005 for the person who the case is about) does not have capacity, the court can make decisions for P with reference to her best interests. When assessing best interests, one does not simply make decisions on the basis of P’s age or appearance or a condition she has, or her behaviour, which might lead others to make unjustified assumptions about what might be in her best interests.
Instead, best interest must be assessed with reference to all relevant circumstances. These are circumstances about which the decision maker is aware and which are reasonable to account for.
The court should consider whether the person at some point in time will have capacity once more to determine the matter in question, and if it appears she will, what it is likely that her decision will be.
There must, as much as possible, be an attempt to encourage P to participate in the decision making.
If a decision is being made about life-sustaining treatment, the assessor should be not motivated by a desire to bring about P’s death.
When looking at best interests, the court should consider:
- the person’s past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity);
- the beliefs and values that would be likely to influence his decision if he had capacity, and;
- the other factors that he would be likely to consider if he were able to do so.
If it is practicable and appropriate to consult them, the views of the following people should be accounted for:
- anybody P says must be consulted;
- anybody who is caring for P or interested in her welfare;
- anybody named as their legal deputy or holding lasting power of attorney.
Lady Hale considered the proper approach in Aintree University Hospitals v James [2013] UKSC 67:
“The most that can be said, therefore, is that in considering the best interests of this particular patient at this particular time, decision-makers must look at his welfare in the widest sense, not just medical but social and psychological; they must consider the nature of the medical treatment in question, what it involves and its prospects of success; they must consider what the outcome of that treatment for the patient is likely to be; they must try and put themselves in the place of the individual patient and ask what his attitude to the treatment is or would be likely to be; and they must consult others who are looking after him or interested in his welfare, in particular for their view of what his attitude would be.”
Human Rights legislation and the European Convention prohibits inhumane or degrading treatment in Article 3. The European Court of Human Rights in Herczegfalvy v Austria [1992] ECHR 83 found that treatment can be imposed upon the patient without capacity where the patient was entirely incapable of deciding for himself and where such a treatment was a ‘therapeutic necessity’.
And thus if the Court is satisfied that such a treatment is a ‘therapeutic necessity’, and thus in Emily’s best interests, it can authorise that Emily can be lawfully treated by force feeding.
This is a careful but difficult process which requires a careful balancing act by the judge. At the end of the show, the judge gives us her judgment and refers to the ‘balance’, but it would have been helpful to contextualise this balance by referring to this process. This doesn’t mean getting all legal – as I have unforgivably just done – but rather alluding to the factors to be taken into account following a determination that Emily lacks capacity.
Back to the Radio Show…
We are introduced to a number of people from Emily’s life throughout the hearing. We meet an estranged but heartbroken mother, Letitia, and Emily’s cantankerous and cold father, George. Their characters were an interesting side show as we begin, ourselves, to consider what role George and Letitia played in their daughter’s situation. I must admit to being reminded of the opening line of the Philip Larkin poem ‘This Be The Verse’ (Google it).
We meet and hear evidence from her long-suffering friend, Jemima. She was a useful character – a kind of Ghost of Christmas Past for the family and a good example of the kind of person the court might wish to consult. She typified the anguish that the families of anorexia sufferers experience. She gave an insight into the failed cycles of remission which Emily experienced in adolescence and into adulthood.
I couldn’t help but feel that Jemima was the voice of the judge. Her evidence was equivocal in nature, balanced and took us through a process. She firstly identified Emily as dying – she is the first person in the drama to call it what it is. She gave a narrative of a dying woman who can no longer bear invasive and aggressive treatment, even if her plight is at least temporarily reversible. She discussed her wishes and feelings – to go to Hampstead and laugh at a ‘Yummy Mummy’ with her pedigree children. Jemima came round, at the end of her assessment, to the crux: that the preservation of life is still an option and whilst this is the case, it will always tip the balance.
The court scenes we heard were spot on, as the lawyers helped paint the canvass for the judge to survey. The judge’s decision at the end – to declare that force feeding was lawful and in Emily’s best interests – was predictable but was in reality the only outcome.
This drama did a good job at portraying this difficult case.
So why did I leave with a bad taste in my mouth? The final words we hear are the barristers talking. ‘Congratulations’ says Emily’s barrister to counsel for the hospital. So many cases in the family courts and Court of Protection involve tragedy and human misery. As a case plays out, everybody involved in these cases feels this in addition to the families: the judge, the lawyers, the court staff and the professionals. As the judge walks out for the last time and the lawyers go home, there are no winners. So often, as the dust settles, the parties themselves are left to deal with the consequences of what has happened. Sometimes that might be the permanent separation of a child from her family and others, in this case, a course of medical treatment being given or not. This will be the cause of tremendous pain and is no place for congratulatory remarks. I find it inconceivable that such an exchange would ever happen.
Having said that, whilst I have identified some (I hope) constructive points in this drama, I am of the view that it has a real value in assisting the public to grasp the difficult and sensitive nature of this kind of case being played out: the torn loyalties, the enormity of the questions and the human impact of the law.
I look forward to the rest of the series.
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