In Cheshire & Wirral Partnership NHS Foundation Trust v Z  EWCOP 50, Hayden J had to contemplate three options on behalf of a woman, Z, detained under the Mental Health Act 1983, with very severe anorexia who had, in the 31 years since being diagnosed at age 15, had never engaged in any meaningful way with treatment, and who had, in consequence, both an extremely low BMI, severe osteoporosis and a low white blood cell count, and who was held not to have capacity to make decisions as to whether to undergo treatment for her anorexia.
The first possibility was to continue treatment under s.3 Mental Health Act 1983 which would involve detention in hospital and naso-gastric feeding under physical restraint until Z’s weight and physical health improved to the point where it would be possible to discharge her. This possibility was agreed both by her treating doctor and the independent expert, Dr Glover (who has appeared in almost all reported cases involving anorexia under the MCA) to be highly unattractive, with a “real risk that feeding under restraint here would be dangerous, to the extent that death might be caused iatrogenicaly i.e. the treatment risks killing the patient. The obvious psychological distress to Z and, if I may say so, to her parents and to the medical staff is difficult to justify. In addition, Z’s osteoporosis is so severe that the medical consensus is that physical restraint faced with the resistance that is likely would probably result in significant musculoskeletal injury” (paragraph 7).
The second possibility also involved continuation of feeding, again under s.3 Mental Health Act 1983, involving detention in hospital, but with the feeding to take place under chemical sedation. However, given her parlous state of health, the medical consensus was that sedation would involve a very significant risk, most particularly of respiratory or cardiac arrest. Hayden J held that anaesthesia would plainly be inappropriate even for insertion of the naso-gastric tube, and that even with the sedation, the risk that Z may try to remove the tube, whilst diminished, is not extinguished. Her treating clinician considered that there was a “very high risk” of respiratory or cardiac arrest as well as the risk that the sedation option could lead to some other iatrogenic cause of death, which would be very traumatic for Z and all concerned.
Both of these options had profound disadvantages considered in isolation, and it was also clear that the severity and duration of Z’s anorexia itself indicated a resistance to treatment; it was therefore reasonable to predict, Hayden J held, that that she would use her very best efforts to resist them. The third option, by contrast, was very much less draconian, namely that she should be discharged from the framework of the Mental Health Act 1983 and treated, if she is prepared to engage at all, only on a voluntary basis. This was subject to a structured plan which had at its heart the objective of providing support and encouragement to comply with a feeding programme and general therapeutic assistance.
Hayden J noted that
11. Reflecting his detailed knowledge of his patient, who has now been in his care since February 2011, Dr Cahill noted that Z at least fares better emotionally when she is not subjected to an enforced medical regime. Thus, it is hoped, and, in my judgement, it can be no more than that, that an indication to her that the hospital, the Trust and the doctors will withdraw from her life, to respect her wishes and her autonomy, may lead to a sense of emotional wellbeing which may at least enable her to cooperate and in some way, perhaps, to prolong life. It is only when this option is contrasted against the previous two that it has any real credibility. It is almost certainly a pious hope that Z will, if left broadly to her own devices, manage effectively to confront this terrible illness, which has darkened her life since she was 15. I am aware that her parents express a belief that she can manage this and I have no difficulty in understanding why they might cling to that hope. I however must be more objective in my analysis and reasoning. Although it will be a terribly painful for Z and her parents to hear it expressed in these terms, I have come to the clear conclusion that I am choosing between 3 palliative care options.
12. Of course the further and obvious benefit of this third option is that it allows Z to take responsibility for herself, in so far as her illness permits her to do so. Through Dr Cahill and Mr. Patel, the Trust have been at pains to emphasise, and it is important that I repeat it, that the hospital doors are always open to Z and that she is encouraged by them to engage to whatever extent she can.
In analysing where Z’s best interests lay, Hayden J held that
13. […] the Court, through the offices of the Official Solicitor, will look not only at what the doctors and nurses say but will also look at the broader canvas of her life, family and her interactions with the wider world; see: Re S (Adult Patient: Sterilisation)  (Fam) 15; County Durham & Darlington NHS Foundation Trust v SS  EWHC 535 (Fam). Sadly, in this case that has proved to be a very short exercise. Z’s world, since she was 15 years of age, has been entirely circumscribed by her eating disorder. It has been described as ‘her profession’. I have been told her anorexia is how ‘she identifies her place in the world’. It has disabled her from making any significant interpersonal relationships or developing any kind of interests or hobbies beyond watching television programmes with her parents, who live only a few doors away.
14. All this of course does not augur positively for the future. Z’s own wishes (and feelings), communicated through the Official Solicitor on her behalf, are that she would wish to stay at home with her parents where she believes she is likely to survive. Despite a lifetime of evidence to the contrary she asserts, without rationalisation, that she will “do much better at home.” As I have said Z is supported in that perception by her parents.
Hayden J considered the case-law in this area, thus:
18. I am aware that the Courts have had to confront a number of particularly challenging cases involving patients with chronic anorexia nervosa. In A Local Authority v E  EWHC Peter Jackson J considered that treating E was a justifiable violation of her Article 3 and 8 rights, in circumstances where the evidence was that she had a 20-30 % chance of success if maintained for 12 months in a specialist unit where she would be forced fed by naso gastric tube, either by sedation or physical restraint. It has to be said that the prognosis for successful treatment in that case was strikingly different to the facts presented in this case. In Re L  Eleanor King J (as she then was) found herself confronted by circumstances where treatment was assessed as futile, given L’s frailty and the likelihood of treatment itself causing death. That strikes me as a similar risk matrix to that which confronts me here but, that said, I have reached my conclusions in this case on its specific facts and not by way of a comparative analysis with the case law. The case law has been helpful only to the extent that it confirms the way in which the decision should be approached.
Drawing the threads together, Hayden J held as follows:
19. In a recent case: Betsi Cadwaladr University Local Health Board v Miss W  EWCOP 13, Peter Jackson J agreed with the medical evidence which advised ceasing coercive treatment and discharging W home to her parents with community support (§21, §48). Though he did not consider that any further admissions would prolong W’s life, he took the view that it was “the least worst option” for her (§48). It does not really matter how option 3 here is characterised, it is ultimately the only proposal which carries any vestige of hope and most effectively preserves Z’s dignity and autonomy.
As a procedural point, Hayden J noted that whilst the effect of s.28 MCA 2005 would on its face prohibit the making of a declaration concerning coercive treatment within the scope of Part IV to the MHA 1983, he did not need to determine the point given the way that he had determined the case. Further, “given this application is heard in the Court of Protection, sitting in the High Court, I would have had the scope to make the declarations under the Inherent Jurisdiction and so the debate seems to me to be arid.”
Hayden J, finally, noted that it had been possible to bring the case on from first hearing on 19 December to final hearing on 30 December (including the instruction of Dr Glover), and that “the avoidance of delay should be regarded as a facet of Article 6 (i.e. a fair trial) in these cases. In this respect the Courts must play their parts too and ensure that case management centres upon the needs of the patient which cannot be derailed by administrative pressures faced by Trusts or the Courts.”
As with Ms X’s case (a case in which does not appear to have been cited to the court), and Miss W’s case, Ms Z’s case leaves one with a strong impression not just of the challenges facing the individuals in question (including the clinicians) but also of the fact that, silently, the courts are developing a form of therapeutic jurisdiction in this area in which they go to careful lengths to emphasise the extent to which they are handing back control of the ultimate decision as to whether to accept or refuse food to the person at the heart of the proceedings, so as to give the best chance that the person will, in fact, make the “right” decision and accept food. Whilst it might be possible from some standpoints to contend that such represents collusion between the professionals (including the Official Solicitor) and the court, for my part I have not the slightest problem with this collusion. It must, at a minimum, be preferable to the extraordinary levels of coercion that would have been involved in option 1 in this case (and the scarcely lower levels in option 2); it can also, it seems to me, to be characterised as an entirely proper and CRPD-supportive way in which to seek to support individuals with anorexia to bring into alignment what is often, as in this case, identified as being their will to live with their clashing preference not to eat.