How should the law determine capacity to refuse treatment for anorexia?

Abstract

This article critically assesses the way a certain court has determined the capacity of a person diagnosed with anorexia to refuse medical treatment. It is shown that when making this determination, the court has adopted a process of circular reasoning, meaning anyone with the diagnosis will be found to lack capacity to refuse its treatment. This circular reasoning means that indicia of capacity that ought to be considered by the court is ignored. The result is a procedure in which the anorexic patient has no voice, and an outcome against which he or she has no effective legal recourse. This problem, it is argued, can be overcome in two ways. Firstly, courts must make sure that the ‘functional’ test of capacity is properly applied, meaning any finding of incapacity must rest on evidenced deficits in decision-making ability. Secondly, courts must properly engage with the subjective reasoning of the person making the treatment refusal.