Abstract
<p>This article explores legal issues relating to the continuation of in-patient treatment for people with severe and enduring Anorexia Nervosa in circumstances where there are doubts as to treatment efficacy. In five recent cases, the Court of Protection in England and Wales has been asked to consider the capacity and best interests of patients with severe and enduring Anorexia Nervosa. Drawing upon international comparisons, this article outlines the clinical uncertainties associated with prognosis and treatment and evaluates legal assertions surrounding capacity and best interests. It is suggested that to ensure palliative management is based on need rather than diagnosis, and that capacity is decision- and not disease-specific, a closer alignment is required between the focus of any capacity and best interests assessments.</p><p><br />Three specific recommendations are put forward: Firstly the courts should adopt a patient-centred rather than clinician-centred approach to framing the decision that is subject to a capacity assessment. Secondly where a patient with Anorexia Nervosa lacks capacity, reliance on their stated treatment preferences must be balanced with their views and hopes regarding prognosis. The value of different treatment options should be assessed in this light. Thirdly given the clinical and ethical uncertainties regarding prognosis and appropriateness of treatment, there are dangers in relying on the same court-appointed expert in all cases.</p>
Highlights
This paper considers medico-legal developments encompassing the treatment of people with severe and enduring Anorexia Nervosa
There is disagreement as to when Anorexia Nervosa might usefully be labelled ‘severe and enduring’, what this means in terms of prognosis, and the consequences regarding treatment and management that flow from application of the label
The second concern is articulated by Wang, who argues that the application of the Mental Capacity Act 2005 (MCA) in A NHS Foundation Trust v X is incompatible with the UN CRPD.[73]
Summary
This paper considers medico-legal developments encompassing the treatment of people with severe and enduring Anorexia Nervosa (referred to in this paper by the acronym SEAN). This paper considers what reliance should be placed on those views both in determining whether a patient (who will be called ‘P’ in this paper) with SEAN has capacity and, where capacity is lacking, assessing P’s best interests. The UK Supreme Court decision of Aintree University Hospitals NHS Foundation Trust v James (Aintree) established that best interests must be determined from the perspective of the person who lacks capacity.[3] Notwithstanding this development, the Law Commission reported in 2017 that the legal framework insufficiently prioritises the person’s wishes and feelings.[4] Decision-makers should not merely ‘consider’ wishes and feelings, but should ‘ascertain’ them as far as is practicable and give them weight, departing from them only where it is necessary and proportionate to do so.[5] We argue that legal developments on the treatment of patients with SEAN fail to take a sufficiently patientcentred approach. There are dangers of relying on the same appointed expert in all cases
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