“The law’s continued
acceptance of the forced feeding of the mentally ill makes a mockery of the
Mental Capacity Act’s commitment to take the wishes of the incapacitated into
account.” Critically analyse this statement.
Introduction
This
essay is going to discuss the Mental Capacity Act (hereinafter referred to as
MCA) and its commitment to take the wishes of the incapacitated into account
and the implementation of the courts of this commitment to patients who are
force fed as a result of anorexia.
Mental illness often incapacitates a patient and so even if a treatment
may save their life it is very hard for doctors to perform treatment that the
patient has not consented to. The law in
England has been trying to move away from a paternalistic model of consent, whereby
the doctor does what he thinks is best, to a partnership model of consent where
the patient communicates their wishes about treatment despite their incapacity
and these wishes are respected as far as possible. It is clear that the MCA is
trying to commit to the partnership model of consent however courts have had
difficulties in applying the partnership model to situations where the patient
is mentally ill and so lacks capacity. Donnelly[1] questions
whether
the process of establishing consent established by the courts can deliver on
the MCA’s goal of preserving maximum decision-making freedom, while, at the
same time, providing an appropriate degree of protection. Few areas of case law demonstrate this point in
relation to the wishes of the incapacitated better than the case law on the force
feeding of anorexics. Therefore I will examine these cases in light of the
statement and conclude that although the case law does not make a mockery of
the commitments of the MCA, the courts do however need to make some
improvements.
Section 1: The case
law makes a mockery of the MCA commitment to protect the wishes of the
incapacitated
In this section I am going to consider the reasons that
could be given that suggest that the force feeding of the mentally ill makes a
mockery of the MCA[2]’s
commitment to take the wishes of the incapacitated into account.
The most obvious example is the case of Re E[3]
where a young female anorexic who had been suffering for 18 years wanted to be
left to die with dignity. The House of Lords found her to be incapacitated because
under the MCA s 1 she could not weigh up the costs and benefits of being force
fed. The House of Lords therefore ordered her force feeding by a specialist
hospital. Jackson[4] acknowledges
that it is unlikely that E will ever consider her weight to be acceptable and
that she is an intelligent adult therefore her views should be respected. The
House of Lords did not take this into account which shows that they are still
committed to the view that life is valued above and beyond all else, life in
its intrinsic sense is valuable no matter how low the quality of life is. The
court found that E’s life is precious despite the fact it is possible that the
treatment will be not be a success. Draper[5]
criticises this decision by arguing that in the case of an intelligent young
woman like E she should have been found to be competent because her refusal of
feeding was based on her ability to weigh up the pros and cons of her quality
of life not based on her incompetence surrounding her fear of calories.
It is possible to look at Re E from another perspective, the
copious consideration of E’s wishes to die and have control of her condition
were detailed and so it seems that the House of Lords did not actually
disregard her wishes. The court respected her wishes, in line with the MCA, yet
chose to see that those few occasions where E wanted to fight her illness and
her right to life, however hard, took priority over her refusals to be force
fed. This reading of Re E is very sympathetic to the court but misses a key
point about the effects of the decision in Re E. In this case E was badly
sexually abused as a child and the force of the feeding to be given to her was
likely to give her traumatic flashbacks of her abuse, the intense psychological
suffering she had undergone was disregarded and her right to a painful and
unwanted life was maintained. The court used a finding of incapacity, because E
could not weigh up the possibility of dying and force feeding due to her fear
of calories, to mask their desire to maintain and protect human life at all
costs regardless of the wishes of the patient. This is why, for me, the Re E
decisions shows the courts’ lack of commitment to the MCA’s underlying need to
protect the wishes of the incapacitated.
The second point that suggests that the case law on force
feeding makes a mockery of the underlying commitment to respecting the wishes
of the incapacitated under the MCA is that there is a possibility of breaching Art 3 ECHR[6] if the
reasonable force is not for therapeutic necessity. To amount to inhuman and
degrading treatment under art 3 the treatment must meet a very high bar. But
arguably allowing someone to be force fed is inhuman and degrading because they
will have no control over their consumption of food and may be sick, get
agitated or even lose control of their bowels. By allowing force feeding to
take place without consent even if the patient is incapacitated the courts are
simply disregarding the horrendous effects and nature of the treatment which Troscianko [7] argues
could amount to torture. Although Re E is an exceptional case a disregard for
the humane treatment of patients, even if it is just a one-off, shows simply
that the courts do not regard the wishes of incapacitated treatments to count
for much and thus the commitment of the MCA to respecting incapacitated
patients is forgotten.
The final reason that the courts have made a mockery of the
MCA’s commitment to respecting the wishes of the incapacitated in anorexia
cases is an extension of Draper’s[8]
argument based on body image. Draper argues that women who refuse mastectomies
are doing so because of body image issues but operating on them would be unthinkable
so it should not be acceptable force feed an anorexic who is refusing due to a
body image problem. This could be extended to show that the courts ordering of
force feeding for incapacitated patients shows that they not only do not
believe that a body image problem is enough to justify letting the patient
choose to die but also that the courts do not give proper weight to the wishes
of the incapacitated anorexia patient.
Section 2: the courts
approach does not make a mockery of the MCA’s commitment to respecting the
wishes of the incapacitated.
This section is going to defend the courts approach to
anorexic incapacitated patient consent. It will argue that the courts do
consider the wishes of the patients despite their incapacity and that this is
perfectly in line with the commitments of the MCA.
Firstly it should be noted that under the MCA code of
practice code of practice[9] anorexics understand the information given to
them but their condition means they are unable to weigh this information and
therefore they are not able to consent to treatment. This guidance in itself
shows the commitment under the MCA to ensuring that anorexia and its effects on
consent are understood and so the wishes of the patient can be respected as far
as possible. This guidance on consent by anorexics was implemented by the court
this year in the Ms X[10]
case it was deemed that X could not make decisions regarding her treatment for
anorexia because she was unable to weigh up the costs and benefits of being
treated however she could make decisions regarding her consumption of alcohol
and could consent to be treated for alcoholism.[11]
This case demonstrates the courts’ desire to allow anorexics to decide as much
of their treatment as they can but also allows the doctors to intervene when it
is clear from their overwhelming fear of calories that they cannot make
capacitated decisions. This is a very sensible approach to take because it
promotes the partnership model of the patient/doctor relationship because the
patient is allowed to have a say in all treatment except those treatments in
which their fear of calories biases their opinion.
Secondly the case of NHS Trust v L[12] involved an anorexic whose doctor said she was
dying but her overwhelming fear of calories would mean that force feeding her
would be overly burdensome. Given the condition of L in this case Elenor King J[13]
said that force feeding would be burdensome and futile because she was dying
and therefore allowing her to dye peacefully was in her best interests. This
case can be distinguished from Re E on the grounds that L’s treatment was not
going to have any chance of a beneficial effect because she was too close to
death whereas E had a small chance of survival and recovery and therefore
attempts to save her life through force feeding were desirable and surviving
was ultimately beneficial for her. This case shows that courts are willing to
let anorexics choose to die however it could be argued that the court was
swayed to agree with L because the doctors too wanted to be allowed to let her
die unlike in Re E where the doctors and E disagreed.
Overall, the courts are not making a mockery of the MCA’s
commitment to respect the wishes of incapacitated anorexic patients. Instead
the courts are balancing this commitment with the commitment of the doctors to
understand anorexia nervosa and act in the patients’ best interests when they
cannot consent for themselves.
Conclusions
The courts approach to incapacitated anorexia patients does
not make a mockery of the commitment of the MCA to respecting the wishes of
incapacitated patients. The courts should give greater consideration for the implications
of treatment for anorexia; especially force feeding, on the patient. Re E was
an exceptional case however that does not remove the need for courts to remain
cautious when ordering force feeding against the patient’s wishes. It is vital
that body image problems which cause conditions such as anorexia are taken seriously
and competency questions surrounding anorexia should consider the patient’s
competence to refuse treatment for the reasons given not because it is assumed
that the refusal was based on their fear of calories. Draper argues these conditions and consent in
these areas needs to be realigned with other consent issues. For example the
courts need to acknowledge that a competent refusal to undergo a mastectomy is
analogous to refusal to be force fed, both treatments can have severe side
effects, both treatments can be life- saving and both cancer and anorexia can
make the patient ill to the extent that they lose capacity. If the courts are
willing to treat anorexia patients who cannot consent but make it clear that
they do not want to be force fed then the courts should be willing to give
respect to the views of breast cancer patients who have expressed wishes that
they would rather die than have a mastectomy.
[1]
Donnelly ‘Capacity assessment under the Mental Capacity Act 2005: Delivering on
the functional approach?’ [2009] LS Vol. 29 No. 3 pp. 464–491
[2] Mental
Capacity Act 2005
[3] Re
E [2012] EWHC 1639
[4]
Jackson. ‘Medical Law’ third edition 2012 ch 4
[5] Draper
‘Anorexia Nervosa and respecting a refusal of life prolonging therapy: a
limited justification’ 2000 14 Bioethics 120-133
[6]
Art 3 European Convention on Human Rights and Fundamental Freedoms 1950
[8]
Draper ‘Anorexia Nervosa and respecting a refusal of life prolonging therapy: a
limited justification’ 2000 14 Bioethics 120-133
[9] Mental Capacity Act Code of Practice para
4.21 and 4.22
[10]
Ms X [2014] EWCOP 35
[11]
Ibid [30]
[12] NHS Trust v L [2012] EWHC 2741
[13]
Ibid King J