In Leeds and York Partnership NHS Foundation Trust v FF & Anor [2025] EWCOP 26 (T3), McKendrick J made some very helpful observations about how the courts should proceed in a case where clinicians are seeking clarification that treatment steps that they are proposing to take (or, more often not take) in relation to a patient detained under the MHA 1983. This is an issue which is coming up particularly often in relation to patients with anorexia.
As McKendrick J noted at the outset of the judgment:
4. At the heart of this application is the nature of the medical treatment and ancillary treatment by way of restraint or force or sedation which should be provided by the Trust to FF to treat her anorexia. Her anorexia is long-term and pervasive and has had the most profoundly negative consequences on her health, her well-being and the quality of her life for very many years. Whilst I will survey briefly the evidence in respect of her capacity, I record at the outset that there is no dispute that FF lacks capacity to consent to receive the medical treatment to treat her anorexia and she lacks capacity specifically in relation to whether or not to consent to receive clinical artificial hydration and nutrition by force (whether that is by restraint or chemical sedation) or the threat of such force. That lack of capacity is agreed between the Trust, who filed detailed evidence in support, by her father, GG, and by the Official Solicitor as her litigation friend.
5. That therefore gives way to this court exercising a best interests jurisdiction pursuant to the Mental Capacity Act 2005. I will need to deal with an ancillary question, that being, whether under a full merits review, this court agrees with FF’s responsible clinician’s decision not to impose treatment pursuant to the terms of section 63 of the Mental Health Act 1983 upon her. Those are the only two questions that this judgment is particularly concerned with. Issues of whether FF remains under section 3 of the Mental Health Act 1983 are not issues for me sitting as a Tier 3 Judge in the Court of Protection. I am not sitting as any form of First-Time Tribunal reviewing the conditions or nature of her detention under the 1983 Act. I am only concerned with those two in-effect interrelated issues of her medical treatment. It will be necessary later in this judgment to consider what is the correct legal and procedural route to deal with the second question, namely how a declaration should be made in respect of the question of section 63 of the 1983 Act.
The Trust’s position as that it was:
6. […] no longer in FF’s best interests to receive clinical artificial hydration and nutrition by force or restraint, or by the threat of the use of force. Their position is that they will continue to provide a full suite of treatment, care, assistance and a high level of professionalism, which they have provided throughout, but they have come to the conclusion that hydration and nutrition under section and in the light of the terms of section 63 of the Mental Health Act 1983 by the use of force or restraint is no longer clinically indicated, it being futile, burdensome and damaging to FF. Therefore they also submit that I should make the declaration that the responsible clinician’s decision not to impose treatment pursuant to section 63 of the 1983 Act is lawful.
FF’s father, GG, agreed, as did with the Official Solicitor, such that:
7. […] Therefore this matter proceeds with the agreement of all parties but nonetheless, given the gravity of the relief sought, it is incumbent on the court to carefully scrutinise the evidence and provide some detailed reasons for granting the relief. It would not in my judgement be appropriate in a case like this simply to approve a consent order. It is the very role of the court to ensure that what the parties agree to is appropriate and in the best interests of the patient under the Mental Capacity Act 2005 and that the full merits review and scrutiny of the declaration sought pursuant to section 63 is also the appropriate relief.
Having conducted a detailed review of the evidence before him, McKendrick J concluded that:
37. I approach this case with the utmost gravity in those circumstances. But having said all of that, it is clear from what I have recounted of the evidence that FF’s quality of life is sadly at an extremely low level. She considers the nutrition that she receives torturous; she describes it as poison. It is difficult to read how she likens it to sexual abuse and rape. Her profound opposition to that is laid bare by the requirement for seven or eight people to use force and restraint at times. The physical and psychological impact on her is profound. I have no doubt in concluding that the treatment regime is extremely burdensome. I have discussed with counsel the extent to which the treatment regime is futile. The provision of hydration and nutrition is not futile in as much as it sustains life, but the combination of artificial hydration and nutrition and the threat of force is futile in treating the anorexia nervosa. It is also highly burdensome.
[….]
41. FF’s wishes and feelings, which I must have regard to, and it would be entirely wrong not to, notwithstanding the profound disordered thinking brought about by her anorexia, are difficult to ascertain. But I am clear that it is her wish to remain alive and it is her wish to stop the poison and stop the torture. The pathway that has been set out by the Trust is, in their judgment, with the agreement of those involved in FF’s care, the best possible way forward to sustain her life and unburden her from the physical and psychological demands of the regime that she has been subject to. I have considered carefully the fact that physical restraint has not been used for a significant period of time, but it seems to me there is no easy answer to that because FF is fully aware that if she does not have calories for 48 hours, that the threat of force can become a reality, and that is what has encouraged her to return to accept nutrition. Therefore it would be false for me to take any comfort in the lack of force being used for some time.
42. I have considered carefully, as I must as a public authority, her Article 2 right to life, her Article 3 right not to be subject to any inhumane or degrading treatment and her right to psychological and physical integrity and her Article 8 rights. As is clear from the case law, the best interests analysis includes consideration of all these fundamental human rights. When I consider the terms of section 4 of the Mental Capacity Act 2005 and the evidence I have read, taking into account those fundamental human rights, as the parties all agree, the best interests declaration that the Trust seek is the appropriate one. The continuation of futile and burdensome treatment which causes significant psychological damage with no proper way out has gone as far as it can, and the treating team are right to craft an alternative treating plan which is not reliant on force. To continue to do so, in the harrowing circumstances which I have read and sought to describe in this judgment, would be wrong. Therefore I conclude that the section 16 order the Trust seek should be made.
That was not the end of the story, however, because the Trust also sought an order declaring that their decision not to rely upon s.63 MHA 1983 to impose nutrition by force was lawful. Having conducted a review of the case-law, McKendrick J noted that:
53. There is not any dispute between counsel as to the fact that in a case like this, a full merits review is required. There is no dispute between the three parties that I should make a declaration that the responsible clinician is correct to conclude that treatment should not be forced upon FF under the auspices provided to the responsible clinician of section 63 of the Mental Health Act 1983. I agree with that view, and my reasons for agreeing with that view are essentially the same as those which have led me to make the section 16 order pursuant to the Mental Capacity Act 2005, namely that the continuation of restraint and force or the threat of such to provide artificial hydration and nutrition to FF is not in her best interests. Having concluded it is not in her best interests, I cannot see a proper case for this court to refuse the declaration sought in respect to section 63 of the Mental Health Act 1983, in circumstances where there are no wider public issues.
However, that gave rise to a procedural issue as to how that declaration could be made:
54. [….] Should that declaration be made under the powers available to this court, as set out in the Mental Capacity Act, in particular section 15? Should the declaration be made under the court’s inherent jurisdiction? I am providing this judgment ex tempore and therefore there is a limit to the analysis I can provide, but counsel have raised the issue, and they are right to do so. Different judges have taken different positions in respect of this, and so counsel have suggested it would be helpful to have some guidance. I am not in a position to provide guidance, but my own view in these cases, where there are issues of capacity and best interests but there are also issues between the detained patient and the Mental Health Trust, is that it is helpful for these latter proceedings to be issued pursuant to Part 8 of the Civil Procedure Rules seeking the application of the Civil Procedure Rules, and in particular CPR Rule 40.20, granting a declaration but doing so in reliance on the statutory powers available to a judge of the High Court pursuant to section 19(2)(a) of the Senior Courts Act 1981.
55. Tempting as it is to make the declaration under the Mental Capacity Act 2005, it does not seem to me that that is the correct approach, and whilst section 15 is drafted in broad terms, it must be read and understood in the context of the Mental Capacity Act 2005. There are many patients who receive treatment compulsorily pursuant to section 63 of the 1983 Act who have capacity. Part of the reason for that are issues of public safety and wider public policy. These issues may well involve other somewhat different interests, and it is easy to imagine there might be parties who wish to intervene in such cases. It seems to me it is always helpful for there to be a procedural code which leads to the declaration being granted. It is clear from this case it is not the Family Procedure Rules, and it does not seem to me appropriate to apply the Court of Protection Rules for the reasons I have just stated. Therefore it seems to me that the Civil Procedure Rules should apply.
McKendrick J also considered the relevance of the inherent jurisdiction, and considered that there was no gap in the statutory scheme which fell to be filled by the inherent jurisdiction, but reached the conclusion that:
58. There is no need, as we are told by the Court of Appeal in the case of DL v A Local Authority[2012] EWCA Civ 253,to resort to the inherent jurisdiction when Parliament has codified in statute the court’s jurisdiction to make declarations. There is an issue between the Trust and FF regarding the treatment, and it is right that a declaration be made as between FF and the Trust which is binding, and that sits ancillary to the section 16 order that I have made under the Mental Capacity Act 2005. It also seems to me that in these cases it is going to be of benefit that whilst the Court of Protection application is issued to deal with capacity or best interest issues, a Part 8 claim form is also issued to deal with the declaration separately in respect of section 63 of the Mental Health Act 1983. There is no need for anything further to be done other than that claim form to be served, and for that Part 8 claim form to note the evidence and background set out in the Court of Protection. But given these applications for declarations in respect of section 63 may deal with wider issues of the safety of the public and other issues, the role of the CPR in providing for experts, open justice, and of course costs, is of benefit to any judge hearing these dual applications. That is not intended in any way to drive up costs or make matters more cumbersome, but adherence to the procedural rules is of course important.
59. For those reasons, therefore, I grant a declaration in respect of questions of capacity pursuant to section 15 of the Mental Capacity Act 2005; I make the order sought by the Trust in respect of best interests under section 16 of the Mental Capacity Act 2005; and I will make a declaration in respect of section 63 of the Mental Health Act 1983 pursuant to section 19 of the Senior Courts Act 1981. Those are my reasons for granting the substantive relief in these difficult proceedings.
Helpfully, McKendrick J set out in an annexe to the judgment the terms of the final order. One important point to note is that the declaration was expressly framed, so as to apply as to “all future hospital admissions unless professionals undertaking assessments (for the purposes of MHA detention) form the reasonable and bona fide opinion that they have information not known to this court, and which puts a significantly different complexion on the case” (i.e. von Brandenburg). McKendrick J also made clear in relation to the s.16 order made that his decision on his behalf was not fixed for all time: “[i]f at any time FF expressly accepts or requests an escalation of treatment to provide nutrition and hydration or consequential treatment of the medical complications which may arise from her diagnosis of anorexia nervosa, such treatment will be provided if her treating clinicians consider it clinically indicated and in her best interests at the relevant time.”
Comment
One immediate point to make in light of the sometimes radical misunderstandings of Court of Protection cases relating to eating disorders is that McKendrick J was not making generalised pronouncements as to the use of force or otherwise in the treatment of anorexia, or about whether and under what circumstances the Court of Protection must be approached.
However, what McKendrick J was doing was (despite his cautious approach to doing so) making a generalised pronouncement about how procedurally to approach the situation of a patient detained under the MHA 1983 where the clinicians have – for whatever reason – decided that they do not feel that the tools of the MHA 1983 provide the answer to the ethical dilemmas that have arisen and have, instead, sought to answer that dilemma by reference to capacity and best interests. Despite being a ex tempore judgment (i.e. one delivered ‘live’), I would suggest that his conclusions are entirely correct and provide a very clear route map going forward.
