Gloucestershire Health & Care NHS Foundation Trust v FD & Ors

A person may lack capacity to decide about nutrition even where they understand that refusal may cause death. Capacity is decision-specific and requires the statutory diagnostic and functional tests, including the ability to use or weigh relevant information. Where capacity is absent, best interests are not determined by preservation of life at any cost. The court must consider all relevant circumstances, including the person’s wishes and feelings, the history and futility of treatment, its burden, autonomy and the prospects of recovery. Life-sustaining treatment may be withheld where further treatment would be futile or overly burdensome, provided the decision is made for the person’s benefit and not to cause death. The Court of Protection cannot discharge detention under the Mental Health Act 1983, but the High Court may grant declaratory relief under its inherent jurisdiction concerning the proposed non-use of compulsory treatment.

The Gloucestershire Health & Care NHS Foundation Trust applied to the High Court, sitting in the Court of Protection and the Family Division, concerning FD, an adult with longstanding anorexia nervosa who had received compulsory treatment for many years. The issues included FD’s capacity to conduct proceedings and to decide about nutrition and hydration, her best interests, the legality of clinicians not using force under the Mental Health Act 1983, and continuing reporting restrictions.

FD was represented by the Official Solicitor as litigation friend. Her family supported the Trust’s application. The central questions were whether FD lacked capacity, whether further compulsory treatment should be withheld, and what declaratory relief the High Court could grant in relation to her detention and treatment.

1. Orders. The Trust’s application was granted. FD lacked capacity to conduct the proceedings and to make decisions concerning nutrition, hydration and consequential treatment. Nevertheless, it was in her best interests to give her control over those decisions and to withhold further compulsory treatment. Declarations were made concerning the proposed non-use of treatment under the Mental Health Act 1983. The reporting restrictions order was continued permanently, subject to liberty to apply.
2. Capacity. Capacity was decision-specific. Under sections 1 to 3 of the Mental Capacity Act 2005, the court applied the diagnostic test and the functional test. FD understood that without nutrition and hydration she would die, but anorexia overwhelmed her ability to use or weigh the relevant information. The causal connection between the disturbance in the functioning of mind or brain and that inability was established.
3. Best interests. The court considered all relevant circumstances under section 4 of the Mental Capacity Act 2005, including FD’s past and present wishes and feelings, the views of her family and clinicians, the prolonged history of treatment and its failure, the burden of further compulsion, and the possibility of recovery. Respect for autonomy, the futility of further compulsory treatment and its burdens meant that preservation of life at any cost was not the governing principle. The decision was made for FD’s benefit and was not motivated by a desire to bring about her death.
4. Separate statutory regimes. Detention under the Mental Health Act 1983 was a public law decision under section 13, not a best-interests decision within the Court of Protection’s jurisdiction. The judge therefore could not order FD’s discharge. The High Court’s declarations could, however, clarify that compulsory treatment had been taken off the table on the evidence then available. FD was subsequently discharged under the statutory procedure.
5. Litigation friend. A litigation friend must act in the protected party’s best interests and may have to adopt a position contrary to that person’s expressed wishes and feelings.