Anorexia and the Interface Between the Mental Health Act and the Mental Capacity Act: Recent Case Law

There is a growing body of case law relating to the treatment of patients with severe anorexia nervosa. I have discussed previous cases several times on this blog. They include the case of E, the case of X, and the case of W. There has recently been a fourth, the case of Z.

While all have been heard in the Court of Protection, and all involve issues relating to capacity to make decisions about treatment, they also illustrate the extent to which the Mental Health Act and the Mental Capacity Act intersect. They highlight the limitations the Mental Health Act may have when dealing with very complex and often intractable mental disorders like anorexia nervosa.

Z is a 46 year old woman. She has had anorexia nervosa since the age of 15 years. The Judge notes: “despite the fact that she has been admitted to hospital on innumerable occasions and received many different treatments, outpatient support and therapeutic input, it is impossible to identify any time in her history where Z has made anything which could be characterised as a sustainable recovery in terms of her weight gain.”

Her physical health has suffered, to the extent that she has osteoporosis “to such a severe degree that her entire skeleton is compromised in a way that would otherwise only be seen in the very elderly”. In October 2016, her Body Mass Index was 9.6 (normal is between 19-25), and in November 2016 she was detained under Sec.3 MHA.

The Trust bringing the case, Cheshire and Wirral Partnership NHS Foundation Trust, sought a declaration that Z lacked the capacity to make decisions about her care and treatment. This was given in the middle of December 2016, and the Judge concluded that there were three options open to the treating team. These were:

• “to continue treatment under section 3 of the 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.”
• “continuation of feeding, again under section 3 of the Mental Health Act 1983, involving detention in hospital, but the feeding to take place under chemical sedation”
• To “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.”

The Judge concluded that the third option should be followed, and that Z would therefore be discharged from detention under Sec.3 MHA and would return to live with her parents.

He noted: “Accordingly, the declarations and orders I make are pursuant to the Mental Capacity Act 2005.  That said, I consider that 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.”

Of other three cases, E, X & W, the Judge reached the same conclusion in the cases of X and W, which was essentially for there to be no forced treatment. Only in the case of E did the Judge advocate continued treatment, and I understand that treatment continued for E under Sec.3 of the Mental Health Act.

So, out of four cases of women with severe anorexia nervosa (and often with complicating conditions such as alcohol dependency and emotionally unstable personality disorder) three were essentially allowed to die. All the cases were deemed to lack the capacity to make decisions about their treatment, and it was concluded that these decisions were in their best interests.

What do these cases have to say about anorexia nervosa, and about the Mental Health Act?

Anorexia nervosa is an insidious and pernicious disorder. It is notoriously hard to treat. Mortality is high, whatever treatment is offered. For patients with anorexia serious enough to require inpatient treatment, less than half experience remission of symptoms after 12 years.

When patients lose weight to the extent that their life is endangered, treatment has to consist initially of ensuring that they gain weight and receive adequate nutrition. This often has to take the form of nasogastric feeding, in other words, inserting nutrition directly into the stomach using a tube. This is an exceptionally intrusive process, and often restraint of various forms has to be used. This is difficult and distressing not just for the patient, but for the doctors and nurses having to administer the treatment.

If the patient refuses to accept lifesaving treatment, the Mental Health Act (Sec.3, for treatment) may have to be used.

In the longer term, the talking treatments, such as cognitive behavioural therapy and cognitive analytic therapy, have the best outcomes. But these therapies can only be given with the consent and cooperation of the patient, and when they are in a reasonable state of physical health.

The Judge in the case of Z stated that “decisions of this nature impose very considerable intellectual and emotional burden on all those involved.” The majority of the decisions in these cases recognised that the clinicians involved with these women had reached a point at which the risks of continuing treatment were not only outweighing the risks of ceasing treatment, but were also causing unjustifiable distress to the patients and their relatives.

I am aware of little equivalent case law relating to other psychiatric disorders. I can only think of the case of C in 2015, a woman diagnosed with narcissistic personality disorder who did not wish to continue treatment for the effects of a serious overdose because she had “lost her sparkle”. There was considerable publicity about this case at the time.

It appears that anorexia nervosa is almost unique in producing case law relating to the ending of treatment for the effects of mental disorder. These judgments seem to suggest that there are times when the Mental Health Act should not be used indiscriminately to preserve and prolong life, that when all possible treatments for a mental disorder are exhausted, at least when it comes to anorexia nervosa, such patients should be allowed to die. The treatment becomes worse than the condition, the treatment becomes oppressive and disproportionate, and in breach of the patient’s human rights.

AMHP’s will undoubtedly continue to be asked to make applications for treatment under the MHA for people with anorexia nervosa, but it is important to weigh up the likelihood that proposed treatment is likely to have the desired effect, and will not merely serve to prolong the patient’s suffering and possibly be in breach of the Human Rights Act.

AMHPs will have to continue to be mindful of the psychiatric opinions informing their decisions. But it may be that referral to the Court of Protection for opinions relating to ongoing invasive treatment should sometimes be considered in preference to the Mental Health Act.

Either way, these are not easy decisions to make.