St George's University Hospitals NHS Foundation Trust & Anor v LV

Neutral Citation Number: [2025] EWCOP 9 (T3) IN THE HIGH COURT OF JUSTICE FAMILY DIVISION Sitting as a Judge in the Court of Protection Case No: COP 20011799 Royal Courts of Justice Strand, London, WC2A 2LL Date: 28.02.2025 Before: MRS JUSTICE MORGAN - - - - - - - - - - - - - - - - - - - - - Between: ST GEORGE’S UNIVERSITY HOSPITALS NHS FOUNDATION TRUST and SOUTH WEST LONDON AND ST GEORGE’S MENTAL HEALTH NHS TRUST Applicants - and – (1) LV (a P by her litigation friend the Official Solicitor) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Respondent Vikram Sachdeva KC (instructed by Bevan Brittan LLP) for the Applicant Fiona Paterson KC (instructed by Damian Cullen on behalf of the Official Solicitor) for the Respondent Hearing date 24 February 2025 - - - - - - - - - - - - - - - - - - - - - Approved Judgment ............................. MRS JUSTICE MORGAN This judgment was delivered in public but a reporting restrictions order is in force. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the protected party and their family must be strictly preserved. All persons, including representatives of the media and legal bloggers, must ensure that this condition is strictly complied with. Failure to do so may be a contempt of court. MRS JUSTICE MORGAN Approved Judgment Mrs Justice Morgan: 1. 2. 3. 4. LV, the person with whom this application is concerned, is now 20. There is good reason to worry that she may not live to see her 21st birthday. The application before me is made by St Georges University Hospital’s NHS Foundation Trust and the Southwest London and St George’s Mental Health NHS Trust and relates to serious medical treatment intended to preserve her life. The treatment is characterised as a treatment of last resort by all those medically qualified witnesses from whom I have heard. The application came before me in the urgent applications court on Friday 21 st February 2025. It had come first to the High Court out of Hours Judge the previous evening who declined to hear it and indicated that the application should be listed the following court day. For reasons which are regrettable but it is unnecessary to detail here, it did not reach me for hearing until shortly after 3.30pm. By that time the Official Solicitor had agreed to act for LV. Having established that although urgent, the medical evidence did not indicate it required a determination over the weekend, I made arrangements to hear the application on the Monday morning. A consequence of the time-critical aspects of the application made and its timing is that the Official Solicitor has observed that it has not been possible for her to represent LV as fully as she would have wished. She has not been able to meet LV. I understand, and it will be obvious from this judgment, why it is that an application to adjourn to do so could not Ms Paterson has nonetheless safeguarded LV’s interests be contemplated. forensically at this hearing with conspicuous skill. I have held in my mind when thinking about LV and most especially when thinking about her own wishes or feelings that in the peculiar circumstances of this case, I have those only through the medical professionals and family members. LV is currently an inpatient on a ward in an eating disorder unit of a university teaching hospital. She has been a patient on that ward for more than 2 years since January 2023. Prior to that she had been an inpatient on a different ward in the same hospital since August 2022. That date coincides with her reaching the age of 18. Before that she had been an inpatient since February 2022 on the Paediatric intensive care unit at another hospital, also a centre of excellence in the South London area. So it is that as the case comes before me LV has been an inpatient in hospital wards of one sort or another for the last 3 years. That is the environment in which this intelligent, academically ambitious young woman has spent the last months of her childhood and the early years of her adulthood. She is detained under section 3 of the Mental Health Act 1983. LV has been diagnosed with Anorexia Nervosa; Autism Spectrum Disorder; Severe Depression; and Anxiety. Whilst there are interrelating consequences and presentations arising from those conditions, it is those which arise from the anorexia which lead to the application I have to determine. LV is now extremely unwell. She is presently being fed twice a day using a Naso Gastric Tube. She has to be restrained for this. The process requires seven staff members. Since December of last year, this process has been largely ineffective in providing her with nutrition since she has developed the ability, at will, to regurgitate feed whilst it is being delivered and to purge by vomiting most, nearly all, of the remainder after delivery. In that time she has lost a further 15% of her body weight. Her body mass index is slightly over 11. The likelihood is that, absent effective intervention, she will die soon. It is difficult to MRS JUSTICE MORGAN Approved Judgment predict when that may be, but the evidence before me is that a timescale of days or weeks is what is contemplated rather than one of months. 5. Those treating her and offering opinion to this court are experts in their field and they work in recognised centres of excellence. Her physical decline is regarded by them all with alarm and a BMI of 11 startling even within the range they each encounter in their daily professional lives. The consultant psychiatrist in charge of her psychiatric care and treatment whilst detained included the following observation in his detailed witness statement in support of this application: I have been a Consultant Psychiatrist in Eating Disorders for 15 years, looking after many patients with complex presentations, and this is one of, if not the most, challenging I have seen. 6. The Applicant Trusts apply for: 7. 8. i) a declaration that LV lacks capacity to conduct proceedings and make decisions about her care and treatment ii) a declaration that it is lawful and in LV’s best interests to be admitted an in intensive care Unit for a period of feeding under sedation The Official solicitor reserved her position pending hearing the evidence but having heard it consented to the application in both respects. LV’s parents were asked if they wished to be parties to the proceedings. They did not. To the applicants’ solicitors pre-proceedings and then to me via LV’s mother’s oral evidence they conveyed, their strong support for the applications made. At this hearing I heard oral evidence from Dr A, Consultant Psychiatrist; Dr Kern Consultant Psychiatrist providing a second opinion; Dr C, Consultant in Intensive Care Medicine and Anaesthesia all of whom had filed statements; from Dr B, Consultant Psychiatrist from whom there was no statement but who has worked on the ward with LV for the last 6 months and seen her about twice a week during that time, and from MV who is LV’s mother. There is a consensus that the options for LV as assessed by those treating her are as expressed in the written evidence in these terms: 1) Stay on the ward where she is: The team believe that they have tried everything they can in this context. NG feeding under restraint has not been successful, given that she can and consistently does spontaneously vomit up all her feeds since December 2024, in a way that ward staff are unable to prevent. Very little feed is retained, such that she has continued to lose significant weight. She is likely to continue to lose weight until there is multi-organ failure due to starvation. There is a high risk of death, although the timeframe is hard to predict, there is a consensus from medical and psychiatric teams that this might possibly be days or weeks rather than months. 2) Go to General Hospital and be fed by central line under mechanical restraint: She would be awake but restrained mechanically. She will have a central line that will feed her intravenously. The medical team believe the risk is high primarily because consistent experience has been that she will pull out any tube or line. If she does this with a central line, there is a risk of air embolism, which can be fatal. I note that in MRS JUSTICE MORGAN Approved Judgment 9. the oral evidence ‘can be fatal’ was expressed in as sense that I understood as ‘would be likely to be fatal’ 3) Go to General Hospital and be admitted to ITU for feeding while intubated under general anaesthesia: She will be under general anaesthesia and fed while asleep. The list of medical risks are as listed below, derived from the best interests meeting from the ITU intensivists, gastroenterologist, and medical nutritionists at St George's Hospital. The process would involve being put to sleep, then doctors inserting a breathing tube and then using a ventilator machine to take over breathing. She would then be kept asleep using medication and fed while asleep. The first concern is that while she is asleep, she will continue to lose muscle mass while sedated – this may be up to 10% a week. Explained this carries risk of critical illness myopathy, which would leave her profoundly weak, potentially unable to move her limbs, and this could be irreversible. Another risk was requiring a tracheostomy (a breathing tube in the neck), and that there is a chance she would require this in the longer term – this would leave her requiring a permanent placement in a facility able to accommodate this, which may be a neurodisability hospital. Another risk was that she would be at very high risk of infection, both a chest infection related to being on a ventilator, or from a line. This would carry risk of multi-organ failure and death. In the first week, there would be risk from being put to sleep, and also from her heart reacting to us starting to feed her. Dr A assesses LV as lacking capacity. In his updated report to the court dated 23 rd February 2025, he has set out in detail the basis on which he reached that view. It is unnecessary to repeat all of that detail here. Crucially he considers that LV was not able to weigh the information for the decision to be made for treatment based on the merits of the available options. There was no option under which LV would agree to take nutrition and gain weight. He did not doubt that she could understand the information that she was given – there is no doubting her intelligence and ability. He was also of the view that she was able to retain information, to attend to the conversation ask questions, including by interrupting to do so and to express alternative opinions. However, all of her answers given to him and her questions asked of him within that context were related to not wanting any nutrition, not wanting to gain weight and she did not otherwise ask any details about the different options or show interest in the merits and drawbacks of each option. He noted that her expressions of opinion and questions included why it would not be better to just let her die. Amplifying orally his view is that LV does not have the ability to weigh any option involving nutrition; she does not agree there is a risk to her in not eating even though she can see intellectually in relation to other patients that the risk is that they will starve. Her own view is that she will be fine if she continues to lose weight and there are no circumstances in which she will accept feeds “the answer is always no despite the merits.” Dr A supports the proposal of treatment by refeeding by admission to ICU. To the risks which he had acknowledged in his report he had added the risks of the detriment psychologically to going against someone’s expressed wishes, but that, he explained, did not mean it was a reason not to do it. He was driven to his support for the option essentially because every other option had been exhausted and without the proposed treatment what lies ahead is deterioration and death. MRS JUSTICE MORGAN Approved Judgment 10. Within the context of best interests Dr A thought it was interesting that when a move to a smaller unit had been discussed with LV and he had asked her about that, her answer was not ‘no’. She had instead responded that she had not been told the details. His own interpretation of that subtle difference was that she had not excluded the possibility of it in her mind. He had formed the view that on some level she would want to get better and agreed that as her mother has reported, LV has on a number of occasions asked if anyone could help her. 11. 12. 13. Dr Kern, for the purposes of her second opinion, had been to see LV and described in her oral evidence engaging LV in brief conversation about the purpose of her visit. The circumstances and detail of that were explored by Ms Paterson KC to good effect. LV was banging her head against the bed frame when Dr Kern arrived. It is recognised that this action is something that brings LV comfort. Hearing from Dr Kern that she was there to review the options, LV was able to break off headbanging and ask – ‘demand’ was the word Dr Kern used- what would you do to help me. Dr Kern in her answer to Ms Paterson agreed that was significant in two ways: first that LV was able to make the effort, which it would have been for her, to break off from the headbanging and focus on something new which might be offered; second that her interest in some other course that might help her get better was what Dr Kern described as “a glimmer of hope” and a stark contrast to the impression Dr Kern had formed of her desperation and hopelessness. When Dr A in turn was asked about this vignette, he too attached significance to it in identifying it as a sign of hope – which therefore carried with it a concept of wishing to get better, were there a way. Dr Kern’s view in oral evidence was that LV has a thought process in which she does want to get better but when she fears it is not fulfilled then she becomes despairing and at that point sees no alternative to her suffering. Were she to feel that there is an alternative Dr Kern’s assessment is that she would take it with both hands. There is poignant evidence of her daily weakening state: where she used to fight against the feeding now she has the strength only to sob; where she used to be able to go to the family home for a visit, now she has not the strength to leave the ward. That latter to Dr Kern featured in her assessment because the distress at not being able to go to her home and spend time with her family served as an indicator of a continuing interest in the life of which she was a part there rather than a life that no longer held interest for her. Similarly her actions, as to which more later in this judgment, in creative craft work and seedlings, which were not, to Dr Kern’s mind those of someone not thinking at that point about next week, next month, next year. Dr Kern, recognising and accepting the considerable risks of the proposed treatment nevertheless supports the proposal. The current circumstances are not helping LV. The nature of this specialist eating disorder ward brings into sharp focus what Dr Kern called the competitive nature of anorexia. Exposing her to the risks which include the risk of death by the treatment is in her view justified since all other options are exhausted and otherwise LV remains on a psychiatric unit, medically seriously unwell, and with no nutrition being effective, and so with a high risk of imminent death. 14. Ms Paterson KC asked Dr Kern about the possibility of a medical trial intended to explore the use of Ketamine to treat patients who have seemingly intractable anorexia. There had been discussions with, as it emerged from Dr B’s later evidence, LV’s mother rather than LV herself. Dr Kern is aware of the potential, as yet not MRS JUSTICE MORGAN Approved Judgment established trial. At this point in LV’s illness she would not in her view be a likely candidate for inclusion criteria in such a trial largely because of her extreme low weight and BMI and medical instability. However, what is relevant in making a Best Interests decision, she and Dr A both agreed, is that within the last week, LV had sent an e mail expressing interest and asking about the possibility. 15. Dr C’s expertise lies in intensive care medicine and anaesthesia. He will be one of the consultants in charge of LV’s care if she is admitted to ICU. He too supports the proposed treatment plan. That he does so is to be seen in the context of the very significant risks associated with that procedure. So serious are the risks as he articulates them in his report that it is appropriate to replicate the relevant passages here: Deep sedation, with intubation and ventilation also carries significant risk. There is extremely limited literature to evidence this practice, and having spoken with colleagues across Europe, this is very much seen as an intervention of last resort. The risks can be summarised as immediate, medium term and long term. (i) Immediate risks relate to the process of intubating and ventilating P. The drugs being utilised can cause cardiovascular instability, including cardiac arrhythmias and very low blood pressure, potentially resulting in cardiac arrest. Once this is carried out, the institution of regular feeding carries a high risk of re-feeding syndrome, with electrolyte abnormalities, that can cause cardiac arrythmias and death. (ii) Medium term risks also include refeeding syndrome which can occur through the first days of feeding. I have already laid out the risks of some of the preferred sedative agents at paragraph 20. The agents we are therefore likely to need to use are independently associated with lowering immunity, increasing risk of morbidity and mortality in ICU, and increasing the risk of Ventilator Associated Pneumonias due to the depth of sedation caused. Chronically malnourished patients are known to have myopathy, neuropathy and altered neurotransmitter signalling. This would result in a significant risk of ICU associated muscle weakness and neuromuscular problems. (iii) Long term risks also include the neuromuscular weakness described above. This is exacerbated in patients undergoing deep sedation as they will lose 10% of their muscle mass within a week if they cannot be mobilised and engage in physical therapy. Furthermore, in any patient who remains on a ventilator for longer than 2-3 weeks, there is an increased risk of tracheal stenosis, causing breathing problems in the future. However, we know that P does not like medical interventions, which would make a tracheostomy extremely difficult to manage. P may not be prepared to accept this intervention, which would make longer term liberation from a ventilator extremely challenging. The sedative agents we are likely to use are associated with worsening ICU delirium which will be traumatising given her pre-existing psychological diagnoses. The final risk associated with a prolonged admission to ICU centres on P’s history of self-harm, including ligature attempts and ingestion of foreign objects. The ICU is not designed to reduce these risks, so the period of rehabilitation following this sedation will be high in risk. Given a predicted timescale of 7-14 weeks to achieve safe weights, if we are to avoid the risks of prolonged intubation and ventilation, periods of conscious sedation will need to be trialled. These will carry the risks laid out in paragraph 19 above; we remain hopeful that MRS JUSTICE MORGAN Approved Judgment 16. 17. 18. some stabilisation may allow us to utilise some of the shorter acting medications that are presently contra-indicated in caring for P. It is a sobering against the backdrop of that level of risk, to reflect on the fact that the unanimous view of all of those treating and caring for LV is that it should be taken and is in her best interests to do so. I include in that the view of Dr B whose up-to- date evidence laid bare for the court the deterioration since the development of vomiting at will in December. It was this Doctor’s view that there was nothing else that could be done for her in the state she was in now and that discussions about Ketamine for example, whilst encouraging in that they were in her view indicative of a young person who wanted to survive and recover, were not a feasible route now but maybe a possibility for the future. If there is a future. The only option which any of the medical professionals see as providing the prospect of a future is the one contended for by the Trusts. Dr C was unable to give a meaningful estimate for LV’s life expectancy. Her physical condition is such that she has very limited reserve left. She might collapse. She might have a sudden arrythmia. An underlying organ failure and sudden collapse is one risk but the bigger risk as he saw it was that of collapse brought on by infection. So diminished is her physical state that if she were to come into contact with a common cold virus that may well be enough to bring about a sudden and fatal collapse. It was Dr C whose opinion had been sought when, on Friday 21st February, a decision was taken that the urgency did not require a hearing over the weekend. To me on Monday 24th, his evidence was that he would ‘not want to delay [the proposed course of treatment] beyond tomorrow or Wednesday’. LV’s mother gave evidence via remote link. In fact she did so before the professional medical witnesses, but I have found it convenient to consider it at this point. I did not require her to be sworn or affirmed. I had been told that she might not feel able to remain on the link for all of the hearing and that, for reasons that are obvious, she finds the evidence acutely distressing to hear and to read. In the event, I noticed that she did remain linked remotely, if not for all then for very nearly all of the hearing. Invited by Mr Sachdeva KC to give an outline picture of her daughter she told me that she is “very bright loves to learn. She was good at school, creative good at arts caring always thinking about other people.” Her mother reflected that having been very focussed on academic achievement - and driven to succeed in her exams, LV had experienced the cancellation of GCSE exams in COVID-19 lockdown as like having all her hopes and structure ripped away. LV had ambitions to be a doctor. It may be that if well enough that ambition might remain. She is the daughter of high achieving professional parents and was clearly motivated to achieve for herself. Her autism diagnosis had not been known to her family at the time but knowing of it now makes sense of how affected she was by the disruption, the uncertainty and the lack of control associated with the COVID-19 lockdown period. 19. She is also however by nature her mother explained “a bit shy and withdrawn which is why being in hospital is so difficult for her.” Her mother spoke affectingly of LV’s relationship with her brother who is 2 years older and of the closeness of the siblings. He comes to see her often when she is at home “he is the one who makes her laugh still.” Until as recently as two weeks ago when LV became very weak indeed, she would come home to her parents house every day for a couple of hours. Now she cannot do that so the family see her and do quizzes, sometimes over the phone and in MRS JUSTICE MORGAN Approved Judgment 20. that sort of activity as her mother put it “we can still see our old [LV]”. When she was still strong enough to visit home, LV would take care of the family cat, plant seeds and was trying to finish and art project for her grandmother. She makes friendship bracelets and has asked for some new string to make her grandmother one I asked her a little more about the planting of seeds and her mother explained that she plants all sorts of things in window boxes and when she comes home goes at once to see if they have grown and waters them. Her mother agrees that it is true that sometimes LV has said that she wants to die. She has said more than once to her mother that if there is nothing that can be done to help her, no hope of getting better, she would prefer to die than to go on. When LV really does believe that things are hopeless, her mother thinks that what she is saying really does reflect her wish in that moment. Set against that however is that when there is something that may offer hope of treatment or recovery, she is interested and wants to know more about it and shows glimmers of hope. Her Mother gave as an example: The first thing she said after the different placement team came to see her, she said ‘mum they think they can help me’. Her mother told me that she believes that LV wants the help. No other family member wanted to express their view at this hearing. LV’s mother told me that they all thought the same thing- that the proposed course of treatment should be carried out. I realise its risky, she said, but if she doesn't have it then she is going to die. I don't think she would want to be in hospital for the rest of her life and I hope she can get better... we thought she could die any day yet somehow she is still with us. The Law 21. There is no disagreement between Counsel as to legal principles I must apply and the relevant case law to which I must have regard . It has been fully set out in skeleton arguments. I am grateful to Counsel for the detailed consideration on which I draw for that which follows. Overarching principles The court’s role where a patient lacks capacity to consent to medical treatment 22. Lord Stephens, in A Local Authority v JB [2021] UKSC 52 [2022] AC 1322, described the relationship between the MCA and the Court of Protection as follows (at [47]): “The MCA defines the powers of the Court of Protection. In essence the Court of Protection has the power to decide whether a person lacks capacity to make decisions for themselves, and, if they do, to decide what actions to take in the person’s best interests.” 23. Baroness Hale, in Aintree v James [2013] UKSC 67 [2014] AC 591, described the questions for the court as follows: “18. …[The court’s] role is to decide whether a particular treatment is in the best interests of a patient who is incapable of making the decision for himself. … MRS JUSTICE MORGAN Approved Judgment 19. … Generally it is the patient’s consent which makes invasive medical treatment lawful. It is not lawful to treat a patient who has capacity and refuses that treatment… … 22. [T]he focus is on whether it in in the patient’s best interests to give the treatment, rather than whether it is in his best interests to withhold or withdraw it. If the treatment is not in his best interests, the court will not be able to give its consent on his behalf and it will follow that it will be lawful to withhold or withdraw it. Indeed, it will follow that it will not be lawful to give it…” Presumption in favour of approving life-sustaining treatment powerful but not absolute 24. There is no obligation on a patient with decision-making capacity to accept life-saving treatment, and doctors are neither entitled nor obliged to give it. As set out by Lord Brandon in Re F (Mental Patient: Sterilisation) [1990] 2 AC 1: “a doctor cannot lawfully operate on adult patients of sound mind, or give them any other treatment involving the application of physical force ... without their consent’, and if he were to do so, he would commit the tort of trespass to the person” 25. In Aintree v James [2014] AC 591 at §§35 – 6 Baroness Hale stated as follows: “35. The authorities are all agreed that the starting point is a strong presumption that it is in a person's best interests to stay alive. As Sir Thomas Bingham MR said in the Court of Appeal in Bland, at p 808, "A profound respect for the sanctity of human life is embedded in our law and our moral philosophy". Nevertheless, they are also all agreed that this is not an absolute. There are cases where it will not be in a patient's best interests to receive life-sustaining treatment. 36. The courts have been most reluctant to lay down general principles which might guide the decision. Every patient, and every case, is different and must be decided on its own facts. As Hedley J wisely put it at first instance in Portsmouth Hospitals NHS Trust v Wyatt [2005] 1 FLR 21, "The infinite variety of the human condition never ceases to surprise and it is that fact that defeats any attempt to be more precise in a definition of best interests" (para 23). There are cases, such as Bland, where there is no balancing exercise to be conducted. There are cases, where death is in any event imminent, where the factors weighing in the balance will be different from those where life may continue for some time.” Capacity 26. The MCA states as follows: “1 The principles (1) The following principles apply for the purposes of this Act. (2) A person must be assumed to have capacity unless it is established that he lacks capacity. (3) A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success. MRS JUSTICE MORGAN Approved Judgment (4) A person is not to be treated as unable to make a decision merely because he makes an unwise decision. (5) An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests. (6) Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action. 2 People who lack capacity (1) For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain. (2) It does not matter whether the impairment or disturbance is permanent or temporary. (3) A lack of capacity cannot be established merely by reference to– (a) a person's age or appearance, or (b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity. (4) In proceedings under this Act or any other enactment, any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities… 3 Inability to make decisions (1) For the purposes of section 2, 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). relevant to (2) A person is not to be regarded as unable to understand the information a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means). (3) The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision. (4) The information relevant to a decision includes information about the reasonably foreseeable consequences of– (a) deciding one way or another, or MRS JUSTICE MORGAN Approved Judgment (b) failing to make the decision.” 27. In JB Lord Stephens set out five foundational principles underlying the MCA: 1. Presumption of competence. Every individual is competent until the contrary is proved. The burden of proof lies on the party asserting that a person does not have capacity. The standard of proof is the balance of probabilities: see section 2(4). Competence is decision-specific so that capacity is judged in relation to the particular decision, transaction or activity involved. P may be capable of making some decisions, but not others. 2. All practicable steps must be taken to enable a person to make a decision for himself or herself, otherwise the challenge will fail. 3. Autonomy. The wisdom of the decision does not determine capacity; the application of ss2-3 MCA does. 4. Those who act or make decisions on P’s behalf must do so in his best interests. 5. Regard must be had whether the purpose for which the decision is needed can be as effectively achieved in a less restrictive way. 28. The Mental Capacity Act has adopted the “functional” approach, rather than the “outcome” or “status” approach to capacity. This focuses upon the personal ability of the individual concerned to make a particular decision, and the subjective processes followed by him in arriving at the decision. A relevant question is whether P understands the general nature and likely consequences of what he is deciding, and whether he can communicate his decision? But understanding alone may not be enough, for the MCA contemplates instances where a person can understand the nature and effects of the decision, but the effects of his mental disability prevent him from using that information in the decision-making process: [56] – [61]. 29. As to ss2-3 MCA: 1. The test of capacity applies to all decisions, whatever their character: [63]. 2. The core determinative provision within the statutory scheme for the determination of whether P lacks capacity is s2(1): [65]. 3. Section 2(1) requires the court to address 2 questions, the first being whether P is unable to make a decision for himself in relation to the matter, and the second being whether that inability to make a decision is “because of” an impairment of, or a disturbance in the functioning of, P’s mind or brain; 4. Capacity may fluctuate over time, so that a person may have capacity at one time but not at another time. The “material time” within s2(1) is decision- specific; the question is whether P has capacity to make a specific decision at the time when it needs to be made: [64] 5. Since the assessment of capacity is decision-specific, the court is required to identify the correct formulation of “the matter”: [67] – [68]. MRS JUSTICE MORGAN Approved Judgment 6. The correct formulation of “the matter” leads to a requirement to identify “the information relevant to the decision” under s3(1)(a) which includes information about the reasonably foreseeable consequences of deciding one way or another or of failing to make the decision: [69]. 7. The court must identify the “information relevant to the decision” “within the specific factual context of the case”: [70]. 30. 31. 32. 33. The information relevant to the decision includes information about the reasonably foreseeable consequences of a decision, or of failing to make a decision. These consequences are not limited to the “reasonably foreseeable consequences” for P, but can extend to consequences for others: [73]. There should be a practical limit on what needs to be envisaged as the “reasonably foreseeable consequences” of a decision or of failing to make a decision so that “the notional decision-making process attributed to the protected person… should not become divorced form the actual decision-making process carried out in that regards on a daily basis by persons of full capacity”: [75]. P’s ability to use or weigh information relevant to the decision as part of the decision- making process “should not involve a refined analysis of the sort which does not typically inform the decision… made by a person of full capacity”: [77]. In PCT v P, AH and The Local Authority [2009] COPLR Con Vol 956 at §35, Hedley J described the ability to use and weigh information as: “the capacity actually to engage in the decision making process itself and to be able to see the various parts of the argument and to relate one to another” 34. Within the context of section 3(1)(c) MCA, it is not necessary for a person to use and weigh every detail of the respective options available to them in order to demonstrate capacity, merely the salient factors (CC v KK and STCC [2012] EWHC 2136 (COP) at §69). Even though a person may be unable to use and weigh some information relevant to the decision in question, they may nonetheless be able to use and weigh other elements sufficiently to be able to make a capacitous decision (Re SB [2013] EWHC 1417 (COP) at §44). 35. 36. 37. The second question under ss2-3 is whether that inability to make a decision is “because of” an impairment of, or a disturbance in the functioning of, P’s mind or brain. This question looks at whether there is a clear causative nexus between P’s inability to make a decision for himself in relation to the matter and an impairment of, or a disturbance in the functioning of, P’s mind or brain: [78]. The questions under s2(1) are to be determined in a set sequence – firstly inability to decide, then causation by impairment/disturbance in the functioning of, P’s mind or brain: [79]. Once the information relevant to the decision has been identified, P is unable to make a decision for himself in relation to the matter if he does not satisfy any one of the limbs of s3(1) eg if he is unable to understand or use or weigh the information as part of the process of making the decision: [76]. MRS JUSTICE MORGAN Approved Judgment 38. The question for the court is not whether the person's ability to take the decision is impaired by the impairment of, or disturbance in the functioning of, the mind or brain but rather whether the person is rendered unable to make the decision by reason thereof (Re SB (A Patient: Capacity to Consent to Termination) [2013] EWHC 1417 (COP) at §38). 39. Whilst the evidence of psychiatrists is likely to be determinative of the issue of whether there is an impairment of the mind for the purposes of section 2(1) MCA, the decision as to capacity is a judgment for the court to make (Re SB [2013] EWHC 1417 (COP)). In PH v A Local Authority [2011] EWHC 1704 (COP) Baker J observed at §16(xiii) that: “…in assessing the question of capacity, the court must consider all the relevant evidence. Clearly, the opinion of an independently-instructed expert will be likely to be of very considerable importance, but in many cases the evidence of other clinicians and professionals who have experience of treating and working with P will be just as important and in some cases more important. In assessing that evidence, the court must be aware of the difficulties which may arise as a result of the close professional relationship between the clinicians treating, and the key professionals working with, P …”. 40. In North Bristol NHS Trust v R [2023] EWCOP 5 the Official Solicitor argued that an impairment of, or a disturbance in, the functioning of the mind or brain required a formal diagnosis. Macdonald J held as follows: “47. …the wording of s.2(1) itself does not require a formal diagnosis before the court can be satisfied that whether any inability of R to make a decision in relation to the matter in issue is because of an impairment of, or a disturbance, in the functioning of the mind or brain. The words “impairment of, or a disturbance in” are not further defined elsewhere in the Act. In these circumstances, there is no basis for interpreting the statutory language as requiring the words “impairment of, or disturbance in” to be tied to a specific diagnosis. Indeed, it would be undesirable to do so. To introduce such a requirement would constrain the application of the Act to an undesirable degree, having regard to the complexity of the mind and brain, to the range of factors that may act to impair their functioning and, most importantly, to the intricacies of the causal nexus between a lack of ability to take a decision and the impairment in question. 48. In the foregoing circumstances, a formal diagnosis may constitute powerful evidence informing the answer to the second cardinal element of the single test of capacity, namely whether any inability of R to make a decision in relation to the matter in issue is because of an impairment of, or a disturbance, in the functioning of the mind or brain. However, I am satisfied that the court is not precluded from reaching a conclusion on that question in the absence of a formal diagnosis or, to address [Counsel]’s original proposition, in the absence of the court being able to formulate precisely the underlying condition or conditions…” This approach was approved by the Court of Appeal in Hemachandran v Thirumalesh [2024] EWCA Civ 896. MRS JUSTICE MORGAN Approved Judgment 41. Where there is objectively verifiable medical consensus as to the consequences of not having medical treatment, if a person does not believe or accept that information to be true, it may be that they are unable to understand it and/or unable to weigh it for the purposes of the MCA: in Hemachandran at [50], [51], [57], and [123]. Capacity to conduct proceedings 42. It is possible (although likely to be rare) for a person to have capacity to make the decision at issue (subject-matter capacity) but to lack capacity to conduct proceedings relating to that issue. In Sheffield City Council v E [2004] EWHC 2808 (Fam) Mr Justice Munby observed at §49: “There is no principle either of law or of medical science, which necessarily makes it impossible for someone who has litigation capacity at the same time to lack subject- matter capacity. That said, however, it is much more difficult to imagine a case where someone has litigation capacity whilst lacking subject-matter capacity than it is to imagine a case where someone has subject-matter capacity whilst lacking litigation capacity…. I suspect that cases where someone has litigation capacity whilst lacking subject-matter capacity are likely to be very much more infrequent, indeed pretty rare. Indeed, I would go so far as to say that only in unusual circumstances will it be possible to conclude that someone who lacks subject-matter capacity can nonetheless have litigation capacity” 43. In An NHS Trust v P (by her litigation friend, the Official Solicitor) [2021] EWCOP 27, Mr Justice Mostyn said at §33 that he: “….would go further and say that it is virtually impossible to conceive of circumstances where someone lacks capacity to make a decision about medical treatment, but yet has capacity to make decisions about the manifold steps or stances needed to be addressed in litigation about that very same subject matter. It seems to me to be completely illogical to say that someone is incapable of making a decision about medical treatment, but is capable of making a decision about what to submit to a judge who is making that very determination” 44. In Lancashire and South Cumbria NHS Foundation Trust v Q [2022] EWCOP 6 at §22, Hayden J stated: “I have little doubt that an individual who lacks capacity to decide about medical treatment will frequently lack the capacity to litigate in a case where that is the sole or predominant subject matter. I have equally no doubt however, that the proposition is not ubiquitous, in the sense that the two tests should be regarded as synonymous. Though I would not put it as high as Mostyn J, I note that he does not discount it absolutely…” Best interests 45. Section 4 MCA 2005 defines the process of determining best interests as follows: MRS JUSTICE MORGAN Approved Judgment “(2) The person making the determination must consider all the relevant circumstances and, in particular, take the following steps. (3) He must consider— (a) whether it is likely that the person will at some time have capacity in relation to the matter in question, and (b) if it appears likely that he will, when that is likely to be. (4) He must, so far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him. (5) Where the determination relates to life-sustaining treatment he must not, in considering whether the treatment is in the best interests of the person concerned, be motivated by a desire to bring about his death. (6) He must consider, so far as is reasonably ascertainable— (a) the person's past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity), (b) the beliefs and values that would be likely to influence his decision if he had capacity, and (c) the other factors that he would be likely to consider if he were able to do so. (7) He must take into account, if it is practicable and appropriate to consult them, the views of— (a) anyone named by the person as someone to be consulted on the matter in question or on matters of that kind, (b) anyone engaged in caring for the person or interested in his welfare, (c) any done of a lasting power of attorney granted by the person, and (d) any deputy appointed for the person by the court, as to what would be in the person's best interests and, in particular, as to the matters mentioned in subsection (6). (8) The duties imposed by subsections (1) to (7) also apply in relation to the exercise of any powers which—. . . (b) are exercisable by a person under this Act where he reasonably believes that another person lacks capacity. (9) In the case of an act done, or a decision made, by a person other than the court, there is sufficient compliance with this section if (having complied with the requirements of subsections (1) to (7)) he reasonably believes that what he does or decides is in the best interests of the person concerned. (10) "Life-sustaining treatment" means treatment which in the view of a person providing health care for the person concerned is necessary to MRS JUSTICE MORGAN Approved Judgment sustain life. (11) "Relevant circumstances" are those—(a) of which the person making the determination is aware, and (b) which it would be reasonable to regard as relevant.” 46. In Aintree Baroness Hale described the test as follows (at §24): “…It had been suggested in Re F that it might be enough if the doctor had acted in accordance with an accepted body of medical opinion (the Bolam test for medical negligence). However, as the Court of Appeal later recognised in Re S (Adult Patient: Sterilisation) [2001] Fam 15, there can only logically be one best option. The advantage of a best interests test was that it focused upon the patient as an individual, rather than the conduct of the doctor, and took all the circumstances, both medical and non-medical, into account (paras 3.26, 3.27). But the best interests test should also contain "a strong element of 'substituted judgment'" (para 3.25), taking into account both the past and present wishes and feelings of patient as an individual, and also the factors which he would consider if able to do so (para 3.28). This might include "altruistic sentiments and concern for others" (para 3.31). The Act has helpfully added a reference to the beliefs and values which would be likely to influence his decision if he had capacity. Both provide for consultation with carers and others interested in the patient's welfare as to what would be in his best interests and in particular what his own views would have been. This is, as the Explanatory Notes to the Bill made clear, still a "best interests" rather than a "substituted judgment" test, but one which accepts that the preferences of the person concerned are an important component in deciding where his best interests lie…” 47. “Best interests” are not just medical best interests, but are widely defined. In Aintree v Baroness Hale stated at §39: “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.” 48. At §§44-5, she added: “44. …It was accepted in Burke (as it had been earlier) that where the patient is close to death, the object may properly be to make his dying as comfortable and as dignified as possible, rather than to take invasive steps to prolong his life for a short while (see paras 62-63). But where a patient is suffering from an incurable illness, disease or disability, it is not very helpful to talk of recovering a state of "good health". The patient's life may still be very well worth living. Resuming a quality of MRS JUSTICE MORGAN Approved Judgment life which the patient would regard as worthwhile is more readily applicable, particularly in the case of a patient with permanent disabilities. As was emphasised in Re J (1991), it is not for others to say that a life which the patient would regard as worthwhile is not worth living. 45. …The purpose of the best interests test is to consider matters from the patient's point of view. That is not to say that his wishes must prevail, any more than those of a fully capable patient must prevail. We cannot always have what we want. Nor will it always be possible to ascertain what an incapable patient's wishes are. Even if it is possible to determine what his views were in the past, they might well have changed in the light of the stresses and strains of his current predicament… But insofar as it is possible to ascertain the patient's wishes and feelings, his beliefs and values or the things which were important to him, it is those which should be taken into account because they are a component in making the choice which is right for him as an individual human being.” 49. On the subject of when life-sustaining treatment may no longer be appropriate, at §§28-9 Baroness Hale stated: “28. The Mental Capacity Act Code deals with decisions about life-sustaining treatment in this way: "5.31 All reasonable steps which are in the person's best interests should be taken to prolong their life. There will be a limited number of cases where treatment is futile, overly burdensome to the patient or where there is no prospect of recovery. In circumstances such as these, it may be that an assessment of best interests leads to the conclusion that it would be in the best interests of the patient to withdraw or withhold life-sustaining treatment, even if this may result in the person's death. The decision- maker must make a decision based on the best interests of the person who lacks capacity. They must not be motivated by a desire to bring about the person's death for whatever reason, even if this is from a sense of compassion. Healthcare and social care staff should also refer to relevant professional guidance when making decisions regarding life-sustaining treatment… 5.32 As with all decisions, before deciding to withdraw or withhold life-sustaining treatment, the decision-maker must consider the range of treatment options available to work out what would be in the person's best interests. All the factors in the best interests checklist should be considered, and in particular, the decision-maker should consider any statements that the person has previously made about their wishes and feelings about life-sustaining treatment. 5.33 Importantly, section 4(5) cannot be interpreted to mean that doctors are under an obligation to provide, or to continue to provide, life-sustaining treatment where that treatment is not in the best interests of the person, even where the person's death is foreseen. Doctors must apply the best interests' checklist and use their professional skills to decide whether life-sustaining treatment is in the person's best interests. If the doctor's assessment is disputed, and there is no other way of resolving the dispute, ultimately the Court of Protection may be asked to decide what is in the person's best interests." (Emphasis supplied.) MRS JUSTICE MORGAN Approved Judgment 50. 51. 52. 53. 54. It is important to read these paragraphs as a whole. As paragraph 5.33 makes clear, doctors have to decide whether the life-sustaining treatment is in the best interests of the patient. Section 4(5) does not mean that they have to provide treatment which is not in the patient's best interests. Paragraph 5.31 gives useful guidance, derived from previous case law, as to when life-sustaining treatment may not be in the patient's best interests. Both the judge and the Court of Appeal accepted them as an accurate statement of the law and so would I. However, they differed as to the meaning of the words in italics. The Code is not a statute and should not be construed as one but it is necessary for us to consider which of them was closer to the correct approach.” Discussion and Conclusions Capacity The question of capacity in this case is not one which I regard as problematic or nuanced. I accept the unanimous evidence as to capacity. In combination both the anorexic cognition and the effects of starvation on her brain are such that LV is affected by an impairment of her mind. Dr A (with whom Dr Kern in her second opinion agrees) in his report dated 21st February gave the following opinion: “I assessed P's capacity on 18 February 2025 and concluded that she lacks capacity to: Make a decision between the options for life-saving treatment, as she was not able to weigh the information for the decision that needed to be made, based on the merits of the options. His view was unchanged in his oral evidence and is not challenged.” I have read carefully the basis on which he arrives at that conclusion and accept it. I have considered carefully the law set out earlier. I accept and agree with the submission made by the Official Solicitor that LV lacks capacity to consent to the treatment plan or to conduct these proceedings. Best Interests The assessment of Best interests is far less straightforward than the decision as to capacity. It is important to remember that LV is not a child but an adult. Tellingly, the opening sentence of the document filed in support of the Trusts’ application referred to her as a ‘girl’. It is an easy error to fall into. As I listened to LV’s mother talking movingly about her now adult daughter, I held in my mind that for her, the distinction between her ‘child’ and her ‘adult child’ is perhaps not one of any great importance. It might not be for many mothers, not only those in these desperate circumstances but in all sorts of others. It is, however for me. I have no difficulty at all accepting the evidence that LV’s mother gave of her own views. No difficulty either in accepting that she speaks for the rest of the family. I have been careful though, not too readily to assume that what LV’s Mother tells me about LV’s likely wishes or feelings is so. This is not because there is a danger I am being misled. It is because of the exquisite tension between, on the one hand, a view clearly expressed, on more than one occasion by an adult of a wish to die, where her behaviour in relation to medical treatment is seemingly congruent with that expressed view, and on the other LV’s mother’s belief or interpretation that it is only when despairing of any hope that LV feels that, and that where there is a course which offers hope, LV’s wish, were she unencumbered by her anorexic cognition, would be that she would want to take that course, want to get MRS JUSTICE MORGAN Approved Judgment 55. better, and want to live. I accept Mr Sachdeva’s submission that her mother and the rest of her family are the ones who know her best and so what they can tell me of her past and present wishes is valuable. Of course her mother wants her to live. I must not shy away from the possibility that as she tells me what her daughter does or would want, what I am hearing is inextricably bound up with her own desperate wish. So I exercise caution. The more so because in the time critical circumstances of this case no one suggests I should hear directly from LV and the Official Solicitor has been unable to do so either. Notwithstanding that caution, in seeking to identify and reflecting in my decision any wishes or feelings of LV I have been especially struck by the following aspects which emerged from her mother’s evidence. Aspects of her behaviour are not consistent with someone who holds no hope for a future life and thus no interest in the future. Her interest in and engagement with her family I accept is reflected in the recording in the medical notes of considerable distress, and a strong wish to be able to continue going home to see her family, when her physical condition deteriorates to the point where she can no longer go home to visit. Planting seeds to grow plants and, more significantly returning to water and check on growth on future visits is entirely irreconcilable with someone with no interest in the future. So too the accounts not simply of making gifts completing projects for family members but of asking for materials for future projects. All of these indicators are small and capable of being over interpreted. I nevertheless regard them as important context when thinking about LV’s repeated expressions of a wish to die. Further context is provided by the evidence from Dr B and Dr Kern of LV’s interest in other possible treatments, notably Ketamine, which extended to sending an e mail of enquiry about them. That was regarded as a very positive indicator by Dr B and Dr A of a wish to get better. Dr Kern’s evidence of being asked, and especially the effort and concentration required to ask in effect what will you do that is different; how will you help me is another significant part of the evidence. These aspects of the medical professional evidence chime with LV’s mother’s description of flickers of hope she saw in her daughter in for example her immediate response to the prospect of a different unit. Taking the picture of all of those aspects together and setting them against the backdrop of all that I have heard at this hearing of the complexity of LV’s presentation generally and the effects of starvation on the brain in particular, I am satisfied that I should not take LV’s expression that she wishes to die as indicative of her wishes and view even accepting that it may be so in the moment. I am further satisfied that to the extent that I rely on the evidence given by her mother in reaching that conclusion, I do so safely since there is support for that evidence from other quarters. 56. The proposed course of action is most unusual and there is good reason why it is regarded as an option of last resort. There are the risks which have been outlined in the medical evidence. Those risks include starkly that she may die as a result of the treatment contemplated. A long period of deep sedation or anaesthesia is not a benign experience. The well documented phenomenon of ICU delirium is prominent amongst the risks not to be taken lightly. It is a reasonable inference to draw that for someone with an established history of serious psychiatric illness it may, if experienced, add to the mental health burdens which LV already struggles to bear. There is so much that is unknown: perhaps, so the intensivist tells me, she will not remember very much about the process when awoken. Amnesia is not an uncommon sequela in part attributable to the medication – but one cannot know. Perhaps she will remember all MRS JUSTICE MORGAN Approved Judgment 57. 58. or much of it. If she does, the possible risks psychologically from the experience of having been treated and fed against her will have been highlighted by Dr A . In a sense most troublingly of all it may be that she goes through this risky, invasive and perhaps frightening process in which all control is taken from her - a person for whom control is of enormous importance - and at the end it all, it may be for nothing. It may still be that she cannot break the cycle and move on to the next therapeutic stage and start to recover. I have thought long and hard about all of those risks and detriments as I weigh the balance. The point about the balance however is to look at what it is that falls on the other side. Here when I look at the other side, at what lies in the balance against all that is risky; all that which in other circumstances would be an intolerable affront to her autonomy, what I contemplate is her imminent death. At the moment twice a day, LV is subject to what, in other times and contexts, was called ‘force-feeding’. The means by which it is achieved, for all the empathetic approach and skill of the staff, is not so very far removed from the images which that phrase conjures up. Yet for all the pain distress and indignity of it (during all of which she is emotionally and physically present) it is achieving nothing. LV is starving to death. An exchange between Ms Paterson and Dr C encapsulated the situation when exploring on behalf of the Official Solicitor the imminence and likelihood of death. ‘Is she at risk of collapse by heart attack and death if she walks from one end of the ward to the other briskly ' ‘yes’. ‘Could that happen this afternoon’ ‘yes’ Is that a remote or appreciable risk ? I'm not sure I can answer that I am satisfied that it is, in all the circumstances of this most unusual and troubling case, in LV’s best interests to undergo the proposed course of treatment. I make it clear that influential to the decision which I reach on this has been my careful consideration albeit that she lacks capacity, as to how I should factor in her own wishes and how to regard the well documented occasions on which she has said she would like to die. I am acutely conscious that I lack the assistance I would ordinarily have from the Official solicitor’s visit to LV. It is right that LV should be able to have an explanation of how what she has said has factored into but not determined my conclusions on best interests. Setting as I have those expression of her wishes in the context of all the other evidence, including her own other words and behaviour, I have concluded that the wider picture informs me that her wishes or feelings, forming as they do a part of my decision making, are more nuanced and less consistent than might appear the case at first glance and before detailed consideration. 59. I accordingly make the declarations sought. The urgency of the situation and the precarious nature of LV’s circumstances were such that I gave the parties my decision in principle at the end of the hearing. I agree with the submission made by the Official MRS JUSTICE MORGAN Approved Judgment Solicitor that given the highly unusual circumstances of this case and the time critical way in which it has been necessary to make decisions in the short period between the issue of proceedings and the conclusion of this hearing, the matter should come back for further review hearing. 60. I will fix that hearing on a date in consultation with Counsel to whom I express my thanks for their hard work, skill, and sensitivity in the conduct of this hearing.