A court ruling that an anorexic woman should be force-fed could render living wills invalid, barristers have said. Living wills (typically called ‘advance decisions’) are used by people who want to stipulate what treatment they should receive in the event that they lose capacity. In this case, the Court stated that these wills could be overturned retrospectively if the subject's mental capacity (when they made the will) was questioned.
Mr Justice Peter Jackson ruled in the Court of Protection last week that the 32-year-old woman, who has not eaten for a year, should be given lifesaving treatment against her wishes and those of her family.
This case follows the recent Court of Appeal ruling earlier this year in the case of DL v A Local Authority  which placed the issue of consent in the healthcare sector back into the public domain. The Court held in that case that an elderly woman who had been bullied into moving into a care home by her son had not given valid consent to this move. The Court specifically stated that the psychological abuse faced by the elderly woman denied her the ability to give “true consent”. Therefore it was felt that the case may have opened up the possibility of healthcare providers and commissioners challenging decisions made by those who do not lack capacity on the grounds that these decisions were made in circumstances pertaining to psychological abuse.
Both of these two recent cases demonstrate that the issue of mental capacity remains a topical and controversial area of healthcare. Mental capacity can be affected by internal health conditions or external circumstances and the Court will look at both when determining whether someone actually has the necessary capacity. The cases demonstrate the responsibilities on all healthcare providers and commissioners to ensure that the vulnerable adults they purport to care for have the capacity to make decisions about their healthcare. The extent of this responsibility can often be unclear and seeking third party advice for individual cases will be necessary.