Cwm Taf Morgannwg Health Board v AB & Anor

These proceedings concern AB. She is a child (Footnote: ¹). She is seventeen years old. Her mother is the second respondent. Her father joined the hearings. She has five siblings. She is studying for her A levels. Unsurprisingly, I cannot improve on her mother’s description of her. She writes:

The battle her mother refers to is AB’s confrontation of her disordered eating. She has restrictive intake self-harming behaviours and is refusing nutrition and hydration.

On 11 June 2025 AB’s mother brought her to The County Hospital in Hereford and would not take her home until she was treated. AB was admitted to the gastroenterology ward and was discharged on 19 June 2025. On 21 June 2025, AB was readmitted because she was not eating at home. At the emergency department she was given intravenous fluids and dextrose, and she was then transferred to the gastroenterology ward where she remained at the point of proceedings being issued. AB required intravenous fluids and feeding via nasogastric tube, which she sometimes accepted and sometimes did not. AB’s weight was 58.5kg in May 2025, 53.6kg on 12 June 2025 and 49.95kg on 23 June 2025, with a BMI of 17.1 and weight loss of 14.5% over 2 months with 6.8% during the 13 days between 12 and 23 June 2025 the majority of which is during an inpatient stay. Given the significant weight loss, ketotic presentation (indicating her body is in starvation and using reserves of fat and muscle due to lack of calorie intake), AB risked immobility from lack of nutrition and hydration. She was at risk of pressure sores from not mobilising. Given her lack of adequate fluid and nutritional intake, she was clinically unstable and was at high risk of refeeding syndrome. The clinical evidence at the point of issue, was that without immediate dietetic feeding plan, AB was at risk of significant deterioration.

By application made on 27 June 2025, the then applicant, Wye Valley NHS Trust (hereafter “Wye Valley”) sought interim declarations that AB lacked capacity to consent to medical treatment and that it was in her best interests to be artificially fed in line with a dietetic plan and 'management of feeding' plan. This involved feeding by NG tube and a plan of supervision and the authorisation of restraint to prevent the tube from being removed.

In the evening of 27 June 2025, an out of hours application was made to Mrs Justice Morgan. She declined to make any interim declarations or orders related to capacity or best interests pursuant to sections, 15, 16 and 48 of the Mental Capacity Act 2005 (hereafter “the MCA”). She observed that the capacity evidence from only a few days earlier indicated that AB had capacity to consent to medical treatment. Furthermore, she noted the Official Solicitor had not yet been invited to act and therefore AB was unrepresented. Noting the urgency, she listed the matter for further hearing on Monday 30 June 2025 before me, sitting as the urgent applications judge.

Wye Valley made a further out of hours application on Saturday 1 July 2025 to Ms Justice Henke seeking disclosure orders, which were granted on the papers.

The matter returned to court on 30 June 2025. A community consultant psychiatrist at The County Hospital carried out a capacity assessment with a consultant gastroenterologist. They had little time to prepare their assessment and write it up, given their limited role in an acute Trust setting. They considered “she is felt not to have capacity to determine to act in her own best interest”.

The Official Solicitor (who had accepted the invitation to act made on Friday evening over the weekend) insured Ms Susan Hardie spoke with AB over the weekend and instructed counsel, who set out the Official Solicitor’s position in a position statement for the Monday hearing. Unsurprisingly, concern was raised about the quality of the capacity evidence. Ms Davies made this submission:

“[A Doctor]’s opinion is stated to be that [AB] is not able to use or weigh the information relevant to those decisions. The COP3 is sparse on reasoning for that view. It does not identify the mental impairment that is relied upon (notably, no cognitive impairment is noted). Section 6.4 amounts to little more than a statement of [AB]’s position, rather than containing analysis of her ability to use and weigh, and does not identify a causative link between any impairment and functional inability to make the decisions at issue.”

At the 30 June hearing I declined Wye Valley’s invitation to make an interim declaration that there was reason to believe that AB lacked capacity to make medical treatment decisions. I made a narrower interim declaration, which was agreed by Wye Valley, the Official Solicitor and Mrs CD, who by this stage had been joined as a party, in these terms:

Despite this interim declaration paving the way for consideration of a best interest order in respect of artificial hydration and nutrition, delivered with force, if required, Wye Valley did not seek any such relief (despite the terms of their urgent application). A little before the short adjournment I was then informed AB had removed her NG tube. I adjourned to permit Wye Valley time to take further instructions and to understand what was happening with AB’s care. After the adjournment Wye Valley confirmed they were not seeking best interests orders.

Given the concerns raised in respect of capacity I considered making orders for up-to-date capacity evidence. After some prolonged discussion about which public body was responsible, I made two orders. A section 49 MCA order against Powys Teaching Health Board (hereafter “Powys”). This is because this is the community psychiatric team responsible for her through their CAHMS service. One of their psychiatrists had met her several times before. The order followed the standard form section 49 MCA order. It made clear the court was interested in a report on AB’s diagnosis and in particular her capacity to conduct the proceedings and capacity to make decisions in respect of medical treatment by way of clinically assisted hydration and nutrition. It ordered Powys to report by 4 pm 8 July 2025. It provided Powys with permission to apply to vary or discharge the order.

It was also ordered:

This order came about because this Trust’s psychiatrist was visiting AB the day after the hearing. The Trust’s solicitor joined the hearing and pointed out Powys should carry out the section 49 MCA assessment but agreed to a brief capacity assessment, as the psychiatrist was visiting in any event. All parties agreed some fuller capacity evidence was critical given the urgency and the life sustaining nature of the treatment. I state all of this in the knowledge of the court’s parens patriae jurisdiction which would permit treatment of a capacitous child. Evidence of capacity and consent seems germane to both jurisdictions. It is fundamental to the Court of Protection’s; it is jurisdictional. But even under the Inherent Jurisdiction, the court is likely to want to consider capacity and therefore consent if it were to make decisions contrary to the child’s. In any event, Wye Valley chose to issue in the Court of Protection and therefore further capacity evidence was crucial.

The order recognised that if AB were to be detained pursuant to the Mental Health Act 1983 (hereafter “the 1983 Act”) these proceedings might end. A recital was added stating:

And the order noted:

Wye Valley were ordered as follows:

Wye Valley did not comply with this order. An email was received from Weightmans attaching a 1983 Act assessment and within the email the following was stated:

The 1983 Act assessment concluded on 1 July 2025 that AB was liable to be detained pursuant to section 2 of the 1983 Act. It noted she needs the NG tube to maintain hydration and nutrition, but kept pulling it out.

A witness statement was filed (with appropriate apologies) at 4.47 pm on Friday 4 July 2025. The witness statement noted that AB was largely compliant with the NG tube and her weight had increased to 52 kg. Blood tests were normal. She was transferred to a specialist eating disorder unit on 3 July 2025. At the request of the specialist unit, however, she was transferred without the NG tube.

The court was then updated late on Monday 7 July 2025 by way of the position statement filed by the Official Solicitor for the hearing on 9 July 2025. It stated that the situation had deteriorated. Since 3 July 2025, AB had consumed no nutrition. From 5 July 2025, she had consumed no fluids or hydration. The court was told AB would be taken from the specialist unit to an acute hospital. Detailed and forceful submissions were made as to why these proceedings were required to continue.

Separately, the court received a COP 9 application from Herefordshire and Worcestershire Health and Care NHS Trust seeking to set aside the order that had been made by consent that a psychiatrist provide a three page assessment of AB’s capacity to consent to treatment by way of hydration and nutrition. They filed a helpful witness statement from the identified psychiatrist. That statement explained that on 25 June 2025, a psychiatrist, GP and AHMP had all agreed that AB was not detainable under the 1983 Act. That psychiatrist was told on 30 June 2025, that the community consultant psychiatrist “in Powys” would attend on AB on 1 July 2025 and carry out the mental capacity assessment ‘as ordered by the court’. As a result, the psychiatrist concluded it was clinically appropriate that she neither carry out a 1983 Act assessment nor a MCA capacity assessment. She then said that she understood there had been discussion of “a brief informal admission” to the specialist eating disorder unit. She stated she became aware there were concerns about AB’s capacity to be informally admitted and that she was informed that there would be an assessment as to whether AB could be detained pursuant to section 2 of the 1983 Act. She states: “I spoke to one of the Consultant Psychiatrists at [the Specialist Eating Disorder Unit (hereafter “the Unit”)] who were not prepared to confirm if they would agree to admission of AB under the Mental Health Act and wanted to discuss with [the Powys psychiatrist] the change of circumstances.” She concluded by recognising this was not the witness statement the court ordered but felt it was clinically appropriate.

At 4.11 pm on 7 July 2025 Weightmans emailed my clerk with a COP 9 application form and a draft order. It sought for Wye Valley to be discharged as a party and contained directions that the hearing on 9 July 2025 remain listed. It did not suggest who should be the replacement applicant in the proceedings.

Separately, a solicitor on behalf of Powys emailed the parties setting out Powys’s position:

A solicitor, on behalf of Cwm Taf Morgannwh Health Board (hereafter “Cwm Taf”) set out his client’s position as follows:

“At this stage I do not think Cwm Taf Morgannwg Health Board are a party and it has not been served or formally notified of any application including any application to join it as a party. [AB] is currently detained under the Mental Health Act so Cwm Taf Morgannwg Health Board does not currently seek any orders from the Court of Protection. The clinical team at [the Unit] will be liaising with [AB]’s parents and the Community Team from Powys to develop an appropriate plan at the point of discharge from [the Unit].

If at any stage court orders are required then the nature and jurisdiction for those orders will depend on a number of factors including the care plan and [AB]’s capacity to consent/refuse treatment. My suggestion is that the current Court of Protection proceedings are either stayed or concluded. At present I have no authority from Cwm Taf Morgannwg Health Board to agree to it being substituted as the Applicant or to pay half the costs of the Official Solicitor. I have no objection to this email being forwarded to the court”.

To add to the complicated picture Powys County Council’s position was that it was too early for them to be involved and they would get involved when AB was discharged from hospital. Once again the possibility of AB being treated as an informal or voluntary patient was again raised. This caused me concern. They stated:

Multiple emails appear to have gone backwards and forwards between the parties, all copied in to Mrs CD who spent most of yesterday by her daughter’s bedside. She wrote to the court in the following terms:

At the hearing at 10 am on 9 July 2025, Mr Lewis appeared for Wye Valley. Ms Davies appeared on behalf of AB through the Official Solicitor. Mrs CD appeared in person. The Official Solicitor had, as stated above, filed a position statement. The court had no updating bundle or position statements from any public body (Footnote: ²).

I immediately sought an update from a public body as to AB’s current health and whether she had consumed any hydration or nutrition, given the alarming update from the Official Solicitor. No health body was able to update me. No public body, either in writing, or through counsel at the hearing, could tell me if it remained the case that AB had taken no hydration since 3 July 2025. Wye Valley’s role, I accept, largely ended on 2 July 2025. No other public body attended the hearing or wrote to update the court in respect of AB’s health and welfare. It would appear none of these public bodies thought it necessary or appropriate to update the court on the life sustaining treatment of a child. The Official Solicitor had no update beyond her knowledge that AB had not taken nutrition since 3 July 2025 and had not taken hydration since 5 July 2025. Understandably the Official Solicitor would require to seek updates from public bodies, given the parlous state of her client’s health.

The court had to look to Mrs CD to be updated in respect of AB’s health. Holding back tears, she told me that AB had been taken between the Unit and a very nearby acute hospital several times over the weekend. Yesterday AB was given IV fluids with the use of restraint to insert a canula. She remains under section 2 1983 Act detention.

Despite the involvement of five public bodies, despite two court orders and notwithstanding the fact this application was urgently issued on 27 June 2025 seeking out of hours best interest orders, the court had no updated evidence on AB’s capacity twelve days after the issue of these urgent proceedings.

At the hearing at 10 am on 9 July 2025, I made the following directions and orders:

At the hearing at 15.30, Cwm Taf sought for the proceedings to be dismissed on the basis there was no role for the Court of Protection and they sought no orders. This was opposed by Mrs CD and the Official Solicitor. I rejected that application. I discharged the section 49 MCA order against Powys and made it against Cwm Taf. I directed there be a discharge plan with an outline legal framework and that a round table meeting take place. I directed I be updated through my clerk in sufficient time to permit a hearing before the end of term, if that is required. I directed Cwm Taf to pay 50 % of the Official Solicitor costs from today. All public bodies present agreed they would cooperate and participate in the round table meeting.

This application was issued urgently on 27 June 2025. It was heard by the court within hours, out of hours. Orders were made. Further orders were made by Henke J over the weekend. It took up considerable court time in the urgent applications list on 30 June 2025. Further orders were made. It required two further hearing on 9 July 2025. All this judicial time recognised the gravity of AB’s condition and the need to have in place a lawful framework to treat her.

One can understand the reasoning behind each public bodies’ position, to some extent. Wye Valley’s role largely ended when AB was discharged from its acute ward. Herefordshire and Worcestershire Health and Care NHS Trust made a good faith attempt to file a witness statement of events rather than a capacity assessment. One can understand there may be a limited role for a community psychiatric team if AB is sectioned and therefore Powys may have a limited role. I accept Powys County Council’s limited role until discharge from section. I can also understand the logic of Cwm Taf’s position that whilst under 1983 Act detention, the role of this court may be limited.

However there are a number of concerning features of this litigation which are individually and collectively caused by the public bodies (although I recognise the very limited role played by Powys County Council). These are:

The court had anticipated that the Court of Protection proceedings might end. This is clear from orders set out above. However, I unhesitatingly agree with the submissions of the Official Solicitor that AB’s capacity is complex. It needs to be assessed. It may provide a life sustaining framework to enable her treatment, should she lack capacity. Aside from post 1983 Act detention issues, it seems to me that whether AB has capacity to consent or not to forced treatment is a fundamental issue which should be properly taken into account when considering her regime under detention and any treatment without her consent pursuant to section 63 of the 1983 Act. Likewise it is also relevant should the court exercise its parens patriae jurisdiction.

The communication between the relevant public bodies has been sufficiently poor that in the exercise of my quasi-inquisitorial jurisdiction, I cannot accede to Cwm Taf’s submission that I stay or conclude these proceedings at the hearing. I do not have the necessary confidence to do so. Furthermore, such an approach would be unfair to Mrs CD. I shall adjourn the matter for the limited evidence as set out above. I add that experience suggests Court of Protection practitioners generally adopt a collaborative approach and the missteps in this matter may have been caused by the urgent nature of the application for variety of very busy professionals.

I thank the Official Solicitor for her adroit assistance. I end by wishing Mrs CD and AB well in respect of the treatment in the coming days and weeks.