Treating adults like children
A judge’s ruling that an anorexic should be force-fed shows how paternalistic British courts are becoming.
It is commonly said that judges live in ivory towers. But the recent decision of the UK Court of Protection to force-feed a 32-year-old anorexic woman called ‘E’ suggests that some of our judges are living on another planet (1).
How did the case start? A local authority, under a veil of anonymity, suddenly asked the Court of Protection to ‘investigate and protect’ Ms E, whose death was imminent. But what business was it of the authority if she was dying? People die every day. However, the judge decided that Ms E should be forced to undergo a prolonged, harrowing, painful, risky and ultimately probably unsuccessful course of treatment, involving physical restraint and compulsory sedation, because she is ‘a special person, whose life is of value’.
Ms E had not taken any calories since the end of March, though she was taking morphine, to which she was addicted. With the agreement of her doctors, and the cooperation of her parents, she had put herself on the ‘end of life’ pathway at a community hospital. There she was receiving palliative care, whose purpose was to let her die in comfort. No one suggested that what she and the hospital were doing was illegal. In 2011, she had signed two advance directives, indicating she did not want to be kept alive.
The Court of Protection’s intervention is a good illustration of the logical fallacy, first highlighted in a 1988 episode of the TV series Yes Minister:
- Something must be done.
- This is something.
- Therefore, we must do this.
The judge’s ruling is also shocking because, on the evidence before the court, there is a very high risk that coerced treatment will prove fatal to Ms E, in her enfeebled state. Feeding a starving person causes the risk of ‘refeeding syndrome’, a variety of metabolic disturbances which can induce acute cardiac failure. Even the insertion of a PEG-line has an immediate two to three per cent mortality risk. Ms E’s ultimate chances of recovery – in terms of regaining anything like a normal life – were put as low as 20 per cent.
The treatment required will cost the National Health Service a staggering £200,000 to £300,000 a year; Ms E will have to be ventilated, and moved to a specialist hospital. The NHS has not offered her such expensive treatment previously. One might ask: why not, and why now?
Ms E’s physician said wearily: ‘I have been repeatedly told by each new expert that this is not a hopeless situation and to refeed E. Each time E has gone through the distress this causes her to be found back in the same situation. With the longevity and severity of her disease I am afraid I am sceptical as to the ability of any specialist to cure E…. How many times do I take E through the trauma and at what point should it be decided that refeeding is futile…? I would point out the near certainty that over and above the psychological distress that would be caused, there are significant life-threatening risks to undertaking refeeding.’
This was compelling evidence for doing nothing, of course.
So what is the Court of Protection? It was set up by the Mental Capacity Act 2005, and is supposed to take decisions on behalf of adults who lack capacity, in relation to property and welfare matters. This can include making a will, for example. The act’s passing into law was delayed for years by claims that letting people make advance directives about medical treatment was tantamount to legalising euthanasia. So it is ironic to see the new court now putting a person’s life at significant risk.
The court has been staffed almost exclusively by judges with a background in family law. This means that they are used to dealing with disputes concerning children rather than adults. In children cases, the rule is that the child’s welfare is paramount (2). The prevailing mindset is therefore paternalist. This does not fit well in cases involving the lives of adults.
To protect, as Professor Philip Jenkins has said, is also to control and to regulate (3). And increasingly, lawyers acting for public bodies routinely invoke the Human Rights Act 1998 as justification for invasions of incapacitated people’s private lives – proof that this act does more to extend state control over people than it does to promote individual freedom.
So what is wrong with Ms E? As well as chronic anorexia, she is an alcoholic with personality disorder. Her difficulties go back many years: apparently, unbeknown to her parents, she was sexually abused between ages four and 11, after which she developed an eating disorder. At 15, she was treated in a residential facility and recovered sufficiently to get into medical school. Later, she dropped out. She then went travelling with a new partner, but by 2006 she deteriorated, and was often on a bottle of vodka a day – her main source of calories. She began a relentless ‘revolving door’ cycle of emergency hospital admissions and repeated discharges. She has been sectioned 10 times under the Mental Health Act. E describes her life as ‘pure torment’.
In court, the local authority initially claimed to be neutral. But why start costly legal proceedings if you’ve got nothing to say? Then it joined forces with the Official Solicitor, who was appointed to act for Ms E. He was persuaded by a court-appointed expert that force-feeding should be attempted. The health authority said it was neutral. Therefore, the only people arguing for Ms E to be left alone were her parents, who did not have legal representation. They felt she had suffered enough. They said: ‘It seems strange to us that the only people who don’t seem to have the right to die when there is no further appropriate treatment available are those with an eating disorder.’
The judge acknowledged the ‘Catch-22’ situation facing anorexics, but found that Ms E lacked capacity. Given that she had swapped vodka for morphine, this was perhaps not surprising, but what was more troubling was his decision that she lacked capacity back in 2011, when she made her advance directives. He justified the extreme intervention proposed on the basis that she was ‘young’, that her life was ‘precious’, and because ‘[a]lthough extremely burdensome to E, there is a possibility that [treatment] will succeed’. And, predictably, he found that this gross interference with her rights was justified under the Human Rights Act.
Possibly, the court wished to avoid the accusation that if it did nothing, it would be complicit in some kind of passive euthanasia. But its references to E being ‘young’ betray the paternalism that operates in cases involving children. Seemingly, though a mature adult of 32, Ms E retains the status of a child in the eyes of this court.
It is hard to resist the conclusion that the real object of keeping Ms E alive against her will is the hope that she may, when she regains weight, come to her senses and make the ‘right’ decision: to go on living. This is wrong, and also patronising. In all probability, Ms E will revert to self-destruct mode, as any adult in her situation is entitled to. Why should she do anything else?
Barbara Hewson is a barrister in London.
Read Barbara’s 2004 spiked article ‘The problem with the family courts’ here.