When and under what circumstances it is legitimate not to treat those with anorexia is a very contentious topic, and is under particular scrutiny at the moment in the context of the Terminally Ill Adults (End of Life) Bill, with very heated arguments as to whether anorexia does, or does not, fall within the scope of the Bill. In the context of the Bill Committee’s debates, there has been much discussion of whether and under what circumstances the Court of Protection will endorse compulsory feeding.
St George’s University Hospitals NHS Foundation Trust & Anor v LV [2025] EWCOP 9 (T3) is the most recent case to be determined. As Morgan J described the position of a 20 year old woman, LV:
3. 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.
4. 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 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.
On an urgent application, the two Trusts sought orders providing for LV to be admitted to an ICU for a period of feeding under sedation. The Official Solicitor, on LV’s behalf, ultimately agreed.
Morgan J was satisfied on the evidence before her that LV lacked the capacity to consent to treatment plan or to conduct the proceedings:
51. […] 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 21stFebruary 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.
The question was therefore as to what was in LV’s best interests. As Morgan J noted:
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 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.
57. 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
58. 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.
Finally, at paragraph 59, Morgan J agreed with the submission made by the Official 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.
Comment
Over and above the challenges of this very difficult individual case, it is important to draw out a number of features of wider importance.
The first is that both Trusts involved clearly took the view that this was not a situation which could be encompassed within the four walls of the MHA 1983. Many treatment options relating to anorexia – including, for instance, nasogastric feeding under restraint – can, and often are, deployed entirely appropriately under Part 4 MHA. In other words, the fact of the coming into force of the MCA 2005 has not transferred the treatment of anorexia from the MHA 1983 to the MCA 2005. Further, a patient such as LV, who would be on s.17 leave to the ICU in the acute trust, would still notionally be subject to the provisions of Part 4 MHA 1983. An argument could be made that the treatment plan fell within the definition of medical treatment for the (manifestation) of mental disorder, such that it could be delivered under Part 4 MHA 1983. But I would suggest that this precisely the sort of situation in which, even if this could be the case, it was entirely right for the treating Trusts to come to court to ask whether it should be the case. They could have come to the High Court for a declaration under Part 8 CPR as to the lawfulness of their proposed course of action (by analogy, see Re RC, where that course of action was taken to confirm that non treatment was lawful). But it is arguably much better that they came to the Court of Protection, as a court equipped to undertake the substantive, inquisitorial, consideration of the position.
The second is that this is a case in which the court was being asked, and was prepared to, endorse very ‘high end’ steps in relation to a person with anorexia. There appears to be something of an urban myth building up that the Court of Protection will both never take such steps, and indeed actively takes the view that such steps should not be taken. This is simply untrue. What the Court of Protection is doing is deciding upon courses of action proposed by treating clinicians in individual cases – it is therefore important to ask why clinicians take the view that they do in those cases as to whether they want to pursue particular courses of action. This line of thought is developed in these slides, which also set out the cases decided by the Court of Protection prior to LV.
The third point arises out of the second. Morgan J in the case before her was at pains to identify that the situation had to be kept under review, and provided expressly for this. In other cases, the decision appears to be a final one. In many such cases, the clinicians have come to court for decisions that either continuation or escalation of treatment is not in the person’s best interests. It is vitally important to understand that if and when the court makes such a decision, it is not concluding that the clinicians must stop thinking at that point. In particular, there may well be situations in which the person’s circumstances change – at that point, the clinicians must consider whether they should bring the matter back to court. In many cases, careful drafting of the relief sought can make clear that the court is not closing the door on treatment if the person wishes it, but rather making clear that it does not have to be imposed upon them against their will: for a very clear example of such a case, see the decision of Cobb J in A NHS Foundation Trust v Ms X [2014] EWCOP 35. But even where the relief drafted in a way which appears more definitive, a failure to reconsider where the person’s circumstances change would be both legally and ethically indefensible: if the person’s situation changes, so must the calculus of their best interests.