In the case of A Local Authority v E (2012), the Court of Protection decided that E, a 32-year-old anorexic woman, should be force-fed.
E had been diagnosed with anorexia, alcoholism and a personality disorder. She had been placed in a community hospital for palliative care and was on an “end of life” care pathway because she opposed feeding, and her parents and clinical team felt other options had been exhausted. Her death was imminent and she had been on the end of life pathway for five weeks when the court intervened. E had previously signed advance decisions, on two separate occasions, refusing medical intervention to prolong her life should this be needed.
The main issues the court considered were whether E had the capacity to make decisions about her treatment; whether she had capacity when she made the advance decisions; and if she did not have capacity and the advance decisions were invalid, whether forcible feeding would be in her best interests.
The Official Solicitor and local authority supported the view that forcible feeding was in E’s best interests. E’s parents and the health authority said they would support the court’s decision.
The court decided that E’s anorexia meant that she was not able to weigh up the advantages and disadvantages of eating because of her obsessive fear of weight gain. She was also heavily sedated and these factors together meant she did not have capacity.
In relation to the validity of her advance decisions, the court ruled that it was clear that E had lacked capacity to make an advance decision and that she did not have capacity at the time she made the advance decisions. This decision was made on the facts of the case and E had been assessed during the relevant time by a psychiatrist, who had expressed a view that she lacked capacity.
The court carried out a balancing exercise in determining what was in E’s best interests. Factors in favour of the palliative care pathway included that this was E’s wish and would be respectful of her autonomy, as well as the associated risks of treatment and the limited prospects of success. Factors in favour of treatment by forcible feeding included that E would die without treatment and medical opinion was that E was treatable with prospects of success.
The court decided that the presumption in favour of the preservation of life had not been displaced and it would be wrong to reject the final chance of helping a vulnerable young woman. An interesting point the court made was that had the authorities not made a commitment to provide resources for E’s care in the short, medium and long term it would not have reached the decision that it did.
Significantly, the court was critical of the timing of the local authority’s application. In the court’s opinion, the case should have been brought long before it was because an earlier application might have allowed E to participate directly in the proceedings and she was already several weeks down the palliative care pathway.
It is interesting to note that the NHS trust was a respondent to the application, as opposed to the applicant, which is unusual in our experience, given that the trust would usually be the decision-maker in relation to medical treatment. The court did not elaborate on this point. The court also emphasised the importance of providing the court with all the relevant factual information and medical evidence in such cases, which would include what could be done practically for E.