Leeds and York Partnership NHS Foundation Trust v FF & Anor

This ex-tempore judgment concerns the medical treatment and welfare of a highly vulnerable young woman, called FF. A transparency order has been made in these proceedings by Theis J, the Vice President of the Court of Protection, on 24 April 2025. That transparency order must be respected. It is an injunction backed up by a penal notice. I am dealing in open court with intimate aspects of the life of FF and those details requite to be protected. The transparency order made by Theis J has been subject to review by me during these proceedings, and I have been sent a draft order of the transparency order, and I will return to that issue at the end of this judgment. But I am clear that it appropriately balances FF, her father and her family's Article 8 ECHR rights with the rights of the press and the public, to permit them to understand what is taking place in these proceedings. There have been a number of observers, members of the public and indeed there was a representative of the Press Association in attendance at this hearing. I provided them the opportunity to make any observations on the appropriate balance between Articles 8 and 10 ECHR, and no such observations were requested or made by any of the parties.

This judgment is in six parts, (1) introduction, (2) background, (3) the evidence, (4) analysis: best interests under the Mental Capacity Act 2005, (5) analysis pursuant to section 63 of the Mental Health Act 1983, and (6) the duration and terms of the transparency order.

(1) Introduction

At the heart of this application is the nature of the medical treatment and ancillary treatment by way of restraint or force or sedation which should be provided by the Trust to FF to treat her anorexia. Her anorexia is long-term and pervasive and has had the most profoundly negative consequences on her health, her well-being and the quality of her life for very many years. Whilst I will survey briefly the evidence in respect of her capacity, I record at the outset that there is no dispute that FF lacks capacity to consent to receive the medical treatment to treat her anorexia and she lacks capacity specifically in relation to whether or not to consent to receive clinical artificial hydration and nutrition by force (whether that is by restraint or chemical sedation) or the threat of such force. That lack of capacity is agreed between the Trust, who filed detailed evidence in support, by her father, GG, and by the Official Solicitor as her litigation friend.

That therefore gives way to this court exercising a best interests jurisdiction pursuant to the Mental Capacity Act 2005. I will need to deal with an ancillary question, that being, whether under a full merits review, this court agrees with FF's responsible clinician’s decision not to impose treatment pursuant to the terms of section 63 of the Mental Health Act 1983 upon her. Those are the only two questions that this judgment is particularly concerned with. Issues of whether FF remains under section 3 of the Mental Health Act 1983 are not issues for me sitting as a Tier 3 Judge in the Court of Protection. I am not sitting as any form of First-Time Tribunal reviewing the conditions or nature of her detention under the 1983 Act. I am only concerned with those two in-effect interrelated issues of her medical treatment. It will be necessary later in this judgment to consider what is the correct legal and procedural route to deal with the second question, namely how a declaration should be made in respect of the question of section 63 of the 1983 Act.

I mean no discourtesy to the excellence of the submissions made by the parties in only briefly summarising in the introduction their respective positions. The position of the applicant is that at this stage it is no longer in FF's best interests to receive clinical artificial hydration and nutrition by force or restraint, or by the threat of the use of force. Their position is that they will continue to provide a full suite of treatment, care, assistance and a high level of professionalism, which they have provided throughout, but they have come to the conclusion that hydration and nutrition under section and in the light of the terms of section 63 of the Mental Health Act 1983 by the use of force or restraint is no longer clinically indicated, it being futile, burdensome and damaging to FF. Therefore they also submit that I should make the declaration that the responsible clinician's decision not to impose treatment pursuant to section 63 of the 1983 Act is lawful.

The position of GG is that he is in agreement. As I say, he is a litigant in person. He has been involved in FF's care for a long time. His position is a considered, thought-through and an informed one, and I have seen in the written evidence the extent of his involvement in FF's medical care. I also record from the outset that it is the position of the Official Solicitor as FF's litigation friend to support the relief sought by the Trust. The Official Solicitor through her counsel has tested the evidence by way of skilful cross-examination by Ms Scott. They have carefully scrutinised the evidence and the proposed relief sought, but at the end of the day, the Official Solicitor supports the Trust's case. Therefore this matter proceeds with the agreement of all parties but nonetheless, given the gravity of the relief sought, it is incumbent on the court to carefully scrutinise the evidence and provide some detailed reasons for granting the relief. It would not in my judgement be appropriate in a case like this simply to approve a consent order. It is the very role of the court to ensure that what the parties agree to is appropriate and in the best interests of the patient under the Mental Capacity Act 2005 and that the full merits review and scrutiny of the declaration sought pursuant to section 63 is also the appropriate relief.

(2) Background

FF has been known to mental health services for a long time. In 2009, when she was only aged 18, a diagnosis of anorexia nervosa was made during her first hospital admission. That diagnosis has been extended over the passage of time, so it is now considered to be a severe and enduring. In addition FF has a diagnosis of emotionally unstable personality disorder (EUPD). This was made in 2010 when she was 19 years old. FF has had a long and distressing history of multiple hospital admissions to try to treat her anorexia. Quite often, treatment has been enforced against her will for prolonged periods of time, and this has included not only nasogastric (NG) feeding but also Percutaneous Endoscopic Gastrostomy (PEG) feeding. At times, a significant level of sustained restrictive practices and restraint has been provided in an attempt to restore FF's weight to what would be considered a relatively healthy range. It is set out in the evidence that she has received a significant amount of mechanical restraint, with the use of soft-cut gloves, anti-psychotic chemical restraint and, more alarmingly but necessary, physical restraint which includes at times up to eight members of staff wearing spit shields and arm guards to prevent injury to FF and themselves.

FF has not consumed an oral diet for around three years. FF's view is that fluids and food and medication are poison. I have read some of her diary entries. She takes the view that her current circumstances are torturous, and she likens the forced feeding regime to something like rape. Given her anorexia, she is weighed regularly. Because I am concerned with her admission to hospital under section over a period of time going back to the beginning of 2024, it is useful to pause to see that when she was admitted at the beginning on 30 January 2024, her weight was five stone and two pounds and she had a BMI of 12.77. Her last recorded weight on 16 June 2025 was five stone and six pounds with a BMI of 13.64. A healthy BMI for most adults is in the range of 18.5 to 24.9. Sadly, FF's BMI is very low and it is a matter of concern to the applicant that notwithstanding the arduous regime she has faced and her response to that regime being one of torture and poison, that she has only been able to put on around half a stone in weight.

FF is prescribed an oral supplement of drinks and there is a plan in place to administer nutrition and hydration by an NG tube if she refuses to drink for a period of 48 hours. It is important to note this has not been necessary since February 2024, but it is clear that the threat of the force behind the section and the role of section 63 of the Mental Health Act 1983 has played a large part in ensuring the consumption of calories. She receives a number of medications as part of her psychiatric care including Olanzapine, Clonazepam, Lorazepam and Promethazine. These are to alleviate the high levels of anxiety she experiences. FF describes those as her poisonous sweeties.

Aside from this medical routine, FF lives in a self-contained flat with a living room and a bedroom. She is well supported in the community by her multidisciplinary team, but she is frail and unable to walk long distances. Unfortunately her self-care is very poor and she is unkempt. I am told she has only permitted her hair to be washed twice in the last two years. She has beliefs that washing clothes and washing her hair adds calories, and she has the belief that staff can transfer calories to her through their hands. She brushes her teeth every hour and that is reported, I am told, to be an attempt by her to brush away the calories from the feeding as opposed to concerns regarding oral hygiene. Thankfully FF is supported by staff with whom she has developed relationships and who are available 24 hours, seven days a week. Sometimes they are able to read to her and sometimes they can even provide her with the comfort of a hug, but given the high levels of anxiety and the overall psychiatric challenges she faces, she can at times be violent and can engage in self-harming behaviour, including banging her head.

This is the background to the application which was made by the Trust on 23 April 2024. The nub of the application brought by the Trust, as I have described, is that whilst treatments will all be offered, in particular food and hydration, the Trust takes the view that force or the threat of force, or restraint, whether that is chemical restraint or physical restraint, should now come to an end, and in effect, they are asking the court to approve a ceiling of care which is her point of refusal. They point out, for the avoidance of any doubt, that clinically assisted nutrition and hydration is a form of life-sustaining medical treatment, and they point to paragraph 116 in the judgment of Lady Black in the case of An NHS Trust & Ors v Y (by his litigation friend, the Official Solicitor) & Anor [2018] UKSC 46.

In support of their application (and I will turn to this in a moment) they have provided detailed evidence from her responsible clinician. They also took the trouble to seek the view of an independent expert psychiatrist, Dr Cahill. Dr Cahill has been instructed by this court on many occasions in similarly difficult cases involving anorexia. He became involved in 2024, and the overall thrust of his report is to agree with the proposal made by the Trust, recognising this is a difficult case. A best interests meeting took place in January 2025. There was no disagreement in respect of the proposed course of action, but rightly, given the nature of the application and the potential consequences, the Trust took the view that an application must be made to this court.

(3) The evidence

I need not go into the detail of her COP3 evidence on capacity, but it is helpful to set out the three options that she has identified, because those are the three options in respect of which FF's capacity was tested, and they are three potential options for this court to consider and they contextualise the nature of the difficult decision I have to make. The COP3 identifies the three options in this way:

As is apparent from those three options, option two is the option that is currently being provided to FF and option three is the option that this court is being asked to declare and order as being in FF's best interests. Those three options have been discussed with FF, and it is the view of the responsible clinician that FF lacks capacity to make that decision. She is simply unable to weigh up and use the information behind those three options. I have considered the evidence and I have considered sections 2 and 3 of the Mental Capacity Act 2005, supported by section 1 of the same Act. All three parties, as I say, agree FF lacks capacity and I agree with them.

In her witness statement, LB deals with the background information. She sets out the background of the various admissions in her witness statement. I need not set out all the history, but I pick it up when FF was re-referred to the specialist eating disorder service in 2021 in the summer. She was then about 30 years old. She did not meet the criteria at the time for the specialist eating disorder service and her referral was rejected. This led to a trajectory of increased dietary restrictions by FF and weight loss, and it led to her admission for treatment in February of 2022 under the Mental Health Act 1983. Even back then at a professionals meeting in March 2022, when section 17 home leave was granted, there was a trial of trying to maintain stability in the community and the use of supplement drinks. This was because it was acknowledged, three years ago, that there was little benefit to further lengthy SEDU admissions. However, FF was not able to tolerate this and was really unable to consume more than around 200 millilitres of fluid a day. She was not taking nutritional supplements and as a result her section 17 leave was revoked by her responsible clinician and she came back to the ward in April of 2022. There were then attempts to facilitate a transition to an oral diet, attempts to stabilise her supplementary drinks, but it is right to acknowledge that LB describes this period as one of very significant, high levels of distress and (it is very sad to read) with consistent screaming and self-harming behaviour.

She was discharged from section 3 of the Mental Health Act 1983 in May 2022 and transferred back to the community eating disorder team. This once again led to an immediate and rapid relapses FF did not take any nutrition at all whilst at home. She was detained once more under section 3 of the Mental Health Act 1983 for treatment because of the physical risks to her health and was admitted back to the same ward only six days after she had left. She had to be refed by nasogastric tube. She remained an inpatient for 13 months and was discharged in July 2023. This was again a lengthy, traumatic admission requiring force-feeding and significant levels of restraint, and I am again saddened to read of considerable violence from her to both herself and the staff. Significant restrictive practices had to be employed. When she was discharged her body mass index was 15.2 and she was solely reliant on oral supplement drinks. She moved into her supported living placement in the north of England, but again deteriorated and began to lose weight. There were further medical admissions. This led to the admission which I referenced on 30 January 2024, as I say, when she had a BMI of only 12.65. That is where she currently remains. The regime I have effectively explained is that she is detained for treatment under section 3 of the Mental Health Act 1983 goes home to her supportive placement, but because of the terms of section 63, FF and the clinical team are aware that they have the availability to use force and restraint and mechanical and chemical sedation, and the threat of force, if FF ceases to drink for the 48-hour period I have indicated.

LB sets out a wealth of helpful information regarding how to treat young adults with severe and enduring anorexia. She says this at paragraphs 32 to 34 of her witness statement:

She goes on to say this:

She then sets out GG's views and the fact that he has remained involved in her care throughout all of these difficulties, although he lives some distance away, and GG has attended the majority of the multidisciplinary team reviews remotely, and he maintains contact with FF via phone. He has discussed matters with the responsible clinician and attended recent best interests meetings. He is supportive of the Trust's position, although I have no doubt that it burdens and saddens him considerably to read and hear and see his daughter in this most difficult condition.

LB then summarises the best interests meeting which took place in January 2025 which led to this application and sets out the details of the care plan. She summarises matters saying this:

As I say, LB gave evidence and was cross-examined. I found her an impressive, helpful witness. She said that the re-traumatising is very significant to FF because, as she has summarised in her evidence, FF does not consider herself to be deserving of care. There are difficulties, she said, with FF's collusion in the restraint and FF's feelings that she is deserving of punishment bound up with uncomfortable sexual references. The psychological distress, she said, can last for hours. She was clear with me that FF does not want to die but she wants the fear and the torture to end, and that FF simply does not know how to do that. She was very sceptical that allowing FF to choose whether or not to have restraint and force would be helpful, saying she would struggle if she had to face or make those decisions herself. She said it would be unfair to continue as we are, and, as her written evidence sets out, she questions the very poor quality of life that FF experiences. She also dwelt on some of the positives, I am glad to say, and talked of FF's incredible intelligence, her fun, dry sense of humour, her interest in her pet rabbit and driving. She also talked about how frightened FF is of dying.

Whilst there have been very small signs of improvement, (for example FF choosing to drink a Pepsi Max over flavoured waters and choosing to watch a programme on Netflix), it was LB’s evidence that these small improvements were not coming about because of FF’s detention under section 3, and the section 63 regime with its use of, or threat of force. LB’s view was that these items of progress come about, instead, because of the treating team and because of the care and the relationship they have built up with FF. LB was at pains to emphasise that the treating team will remain around FF and will look after her no matter what the decision of this court is. Unusually and highly commendably, if I grant the application and the section is discharged, LB told me that she would remain involved in FF's care, albeit that she would not be FF’s responsible clinician at that point.

I thank LB for her careful care of FF and her helpful evidence. She has also produced a second witness statement, which I have read and considered. It is a helpful part of these proceedings that there is also an expert report. I say expert; it was not an instruction by this court. It took place on the initiative of the applicant Trust that Dr Matthew Cahill (consultant psychiatrist) came to become involved, effectively as a second opinion doctor. His report is dated 17 October 2024. It is a thorough, detailed piece of work, and there is also an addendum report, which I have seen and considered.

On 15 October 2024 Dr Cahill met FF at her home. He describes this as a very challenging assessment. I am not going to add detail to this judgment by setting out further his observation of FF and the harrowing condition that she presented to him in, but even for those who are experienced in dealing with complex and challenging cases, reading his assessment of her condition and her responses to him is difficult. Dr Cahill agreed that FF lacks capacity to make relevant decisions to receive the medical treatment. He answered a series of questions as set out in a letter of request to him, and some of his key responses are as follows:

As can be seen from the paragraphs I have just quoted from his report, Dr Cahill, who is experienced in this area, supports option three which I described at the beginning of this section of the judgment.

Also in the evidence is a plan from a teaching hospital in the north of England and a consultant liaison psychiatrist/medical psychotherapist, who sets out what should take place if (i) FF presents in hospital or in any form of acute setting with physical health symptoms which are a consequence of her anorexia nervosa and (ii) if she presents with physical health conditions which are not a consequence of her anorexia nervosa. It is clear that any declarations in this court in respect of lack of capacity or orders in respect of best interests do not relate to the second scenario and FF will be treated like any other patient, albeit with some significant psychiatric difficulties brought about by her anorexia nervosa. There is no suggestion that the declarations regarding capacity and orders in respect of best interests that I will consider in this judgment extend to wider, routine physical care.

In her usual way, the Official Solicitor has done her best to elicit information regarding FF, and I am materially assisted by witness statements from Ms Collette Ward, who is a lawyer in the Official Solicitor's office who has conduct of this matter, and I am grateful to her for the efforts that she has made. She has included written extracts which FF puts together. That has been helpful to me to try to form a view of FF's wishes and feelings, and as I approach that evidence, whilst I remind myself that all parties agree FF lacks capacity to make the relevant decision, I do not lose sight of the fact that FF is a university graduate with a 2:1 degree, who at many stages in her life hoped to live a life full of the normal ambitions of a young person. I read only one extract from her diary of 22 June 2025:

“I'm scared I can’t face another day I'm really struggling with night staff I give up what do I do about sitting down four years since I ate my last meal thunder and lightning in my head my head is rushing about I need to stay on my section I'm so scared I don't want control I’ve not been able to write properly this week I just want to lose weight AAAAAHHHHHHHH AAAAAHHHHHHHH AAAAAHHHHHHHH get it fucking out of me AAAAAHHHHHHHH AAAAAHHHHHHHH anxiety is flooding my body black evilness splashing against the walls of my mouth tingling cold sensory overload I know I've gained weight this week is too much I don’t want to be taken off my section I can’t deal with my head getting louder and guilt soaking the body I want to runaway from this body do I just stand up all day AAAAAHHHHHHHH I have no one to talk to people wont get how much harder the poisons all of them will be I want to die I'm a GREEDY fucker I'm so DISGUSTING everyone hates me I just want to be empty my head is like a black box with candles or some sort of lighting with black smoke coming off them it's like a Halloween scene screaming screeching squealing ear piercing chattering boom boom BANG BANG BANG I don't belong in this body I don’t want to be took off my section I don’t want anything inside me but I don't want to get resection and end up in St James I might scream more this week I might be quieter but either way I need people to know and take in to consideration how hard this week is going to be I need more support and patience guilt and the haunting cackle of my master is going to be uncontrollable I don’t want to have the choice to have the evilness I know everyone has given up on me that's why this is happening I just want skinny legs”

That is the evidence filed in these proceedings.

(4) Best interests under the Metal Capacity Act

The decision of Lady Hale in Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67, [2014] AC 591 is now well known. In particular: :

As is explained in Aintree, when the court is considering whether the treatment in issue is futile, it is in the sense of being ineffective or being of no benefit to the patient. The treatment does not have to be likely to cure or palliate any underlying condition or return the patient to full or reasonable health. Rather, it should be capable of allowing the resumption of a quality of life which the patient would regard as worthwhile. Ms Sutton KC submitted that whilst CANH was not futile in the sense that it kept FF alive, that was too basic an analysis. She submitted that CANH was futile in the key sense of being a significant negative factor in FF’s life, tantamount (as she sees it) to torture, and not improving her quality of life. As in all cases, the court must weigh the burdens of the treatment against the benefits. I am also helpfully reminded in her detailed position statement from Ms Sutton KC of the importance of beginning any assessment of best interests to start with the presumption of the continuation of life. That of course is picked up, as I have just quoted, in paragraph 35 of Aintree. It is also helpful to remind myself of what was said by Baker J (as he then was) in W v M [2011] EWHC 2443 (Fam) that the principle of life can be "simply stated but of the most profound importance". It needs no further elucidation. It carries great weight in any balancing exercise.

I also remind myself specifically of the terms of section 4(5) of the Mental Capacity Act:

It is important to record in this case that whilst the responsible clinician's evidence is that if the relief sought is granted, death may well be a consequence, that there is at all stages going to be the provision of care and treatment, hydration and nutrition, psychiatric support, medication, expert nursing to assist and look after FF. However it is important to confront the evidence, which is that without the threat of force and force itself, there is a real risk, and I must embrace that real risk, that FF may well not consume hydration and nutrition and she may well die. I have spent some time rehearsing the evidence of previous inpatient admissions, sections, compulsory treatment and releases back into the community from section, because they demonstrate quite often very quickly that FF does not eat or drink, and it seems to me from reading that evidence that her death may quite often have been imminent, and that the necessity of force to hydrate and provide her with nutrition was what sustained her life.

I approach this case with the utmost gravity in those circumstances. But having said all of that, it is clear from what I have recounted of the evidence that FF's quality of life is sadly at an extremely low level. She considers the nutrition that she receives torturous; she describes it as poison. It is difficult to read how she likens it to sexual abuse and rape. Her profound opposition to that is laid bare by the requirement for seven or eight people to use force and restraint at times. The physical and psychological impact on her is profound. I have no doubt in concluding that the treatment regime is extremely burdensome. I have discussed with counsel the extent to which the treatment regime is futile. The provision of hydration and nutrition is not futile in as much as it sustains life, but the combination of artificial hydration and nutrition and the threat of force is futile in treating the anorexia nervosa. It is also highly burdensome.

It is important that I am led by the evidence, and the evidence of an experienced responsible clinician and the evidence of a distinguished consultant psychiatrist in this area, Dr Cahill, is that they are supportive of ending the threat of force to bring about hydration and nutrition to sustain FF's life. I am comforted that the responsible clinician supported by Dr Cahill have given this matter considerable thought, and there is a treatment pathway which empowers FF to be supported in such a way that there is some reasonable optimism she will continue to take hydration and nutrition.

In as much as FF is interested in the views of a judge, I send a message to her that I know LB will convey to her, because that is how she said she would convey any decision of this court, which is that FF's life has great value. Her hard work and studies, her relationship with her father, the bonds she has with the staff who support her, her increasing interest in the world around her and her use of Netflix, all give her glimmers of hope, and I hope she will choose for herself to continue the hydration and nutrition, being strongly supported as she is.

So the views of her treating team are supportive of the application. The views of GG, her father, are supportive of the application, and as I say from what I have read, he does so from an informed view. The views of her litigation friend, the Official Solicitor, are to support the application, again having probed and tested it and considered it.

FF's wishes and feelings, which I must have regard to, and it would be entirely wrong not to, notwithstanding the profound disordered thinking brought about by her anorexia, are difficult to ascertain. But I am clear that it is her wish to remain alive and it is her wish to stop the poison and stop the torture. The pathway that has been set out by the Trust is, in their judgment, with the agreement of those involved in FF's care, the best possible way forward to sustain her life and unburden her from the physical and psychological demands of the regime that she has been subject to. I have considered carefully the fact that physical restraint has not been used for a significant period of time, but it seems to me there is no easy answer to that because FF is fully aware that if she does not have calories for 48 hours, that the threat of force can become a reality, and that is what has encouraged her to return to accept nutrition. Therefore it would be false for me to take any comfort in the lack of force being used for some time.

I have considered carefully, as I must as a public authority, her Article 2 right to life, her Article 3 right not to be subject to any inhumane or degrading treatment and her right to psychological and physical integrity and her Article 8 rights. As is clear from the case law, the best interests analysis includes consideration of all these fundamental human rights. When I consider the terms of section 4 of the Mental Capacity Act 2005 and the evidence I have read, taking into account those fundamental human rights, as the parties all agree, the best interests declaration that the Trust seek is the appropriate one. The continuation of futile and burdensome treatment which causes significant psychological damage with no proper way out has gone as far as it can, and the treating team are right to craft an alternative treating plan which is not reliant on force. To continue to do so, in the harrowing circumstances which I have read and sought to describe in this judgment, would be wrong. Therefore I conclude that the section 16 order the Trust seek should be made.

I turn then to the related but distinct issue of the application for a declaration in respect of section 63 of the Mental Health Act 1983. Section 63 of the Mental Health Act 1983 says as follows:

Section 63 must be read alongside section 145 of the same Act, which says as follows:

That is a powerful tool in the arsenal of treating clinicians and psychiatrists in respect of patients who are detained under the Mental Health Act 1983. It is really at the heart of how FF has been treated for a very long time. There is case law on it, and it is useful that I summarise some of it briefly. The first case I look at is R (Wilkinson) v Broadmoor Special Hospital Authority [2002] 1 WLR 419, which, at paragraph 31 provides that:

“31: Accordingly, were there to be a fresh decision to subject this claimant to forcible treatment which is then challenged, I would order the attendance of all three specialists for cross-examination at the review hearing. I recognise, of course, that this would substantially complicate and lengthen the course of proceedings. I recognise too the great inconvenience it would occasion the defendants and the potentially inhibiting effect it could have in future on the choice of treatment for uncooperative mental patients. I would, however, express the confident hope that challenges of this nature, so far from becoming commonplace, will be rare indeed and will arise only in the most exceptional circumstances. Dr Grounds and others like him will surely hesitate long before being prepared to join issue both with those who have the express statutory responsibility for treating the patient (RMOs) and also, in section 58 cases like the present, those specifically appointed to safeguard the patient's interests (SOADs). SOADs, I should note, are experienced and entirely independent specialists drawn from a panel appointed by the Mental Health Act Commission ("MHAC") which was directed by the Secretary of State to discharge on his behalf that function under Part IV of the Act. Courts, after all, are likely to pay very particular regard to the views held by those specifically charged with the patient's care A and well-being. I do not go so far as to say that a Bolam/Bolitho approach will be taken to their evidence—ie that the treatment which they propose will be sanctioned by the court provided only that a respected body of medical opinion would approve it. Certainly, however, courts will not be astute to overrule a treatment plan decided upon by the RMO and certified by a SOAD following consultation with two other persons.”

The next case I look at is R (JB) v Dr Haddock [2006] EWCA Civ 961, the key paragraphs is as follows:

As can be seen, these two cases have nothing to do with the Court of Protection. They dealt with applications for judicial review in respect of compulsory treatment, either under section 63 or section 63 and a combination of section 58 and second opinion doctors. But they establish the need for a full merits review of a decision to treat.

More relevantly, for the purposes of today, I then turn to the case of Nottinghamshire Health Care NHS Trust v RC [2014] EWCOP 1317. This case has far more similarities with the matter regarding FF with which I am concerned:

Mostyn J took the view that a full merits review was required by precedent when a decision to treat was made, but asked what would take place if a decision was made not to treat, which could lead to a patient's death? He concluded that in those circumstances, plainly, human rights requirements led to there being a need for a full merits review.

Moor J followed that approach in the case of A Midlands NHS Trust v RD [2021] EWCOP 35 as follows

Again, the facts of that case are similar to this one.

Lastly, I look at the helpful review carried out by Lieven J in the case of JK v A Local Health Board [2019] EWHC 67 (Fam). There is no need to quote from this case, but I note this case began as a Part 8, Civil Procedure Rule claim. The case did not relate to a Court of Protection patient, but a man who was alleged to have carried out serious criminal offending and had gone on a hunger strike. I note the helpful summary carried out by Lieven J at paragraphs 43 to 49.

There is not any dispute between counsel as to the fact that in a case like this, a full merits review is required. There is no dispute between the three parties that I should make a declaration that the responsible clinician is correct to conclude that treatment should not be forced upon FF under the auspices provided to the responsible clinician of section 63 of the Mental Health Act 1983. I agree with that view, and my reasons for agreeing with that view are essentially the same as those which have led me to make the section 16 order pursuant to the Mental Capacity Act 2005, namely that the continuation of restraint and force or the threat of such to provide artificial hydration and nutrition to FF is not in her best interests. Having concluded it is not in her best interests, I cannot see a proper case for this court to refuse the declaration sought in respect to section 63 of the Mental Health Act 1983, in circumstances where there are no wider public issues.

An issue does arise, however, as to how that declaration should be made. Should that declaration be made under the powers available to this court, as set out in the Mental Capacity Act, in particular section 15? Should the declaration be made under the court's inherent jurisdiction? I am providing this judgment ex tempore and therefore there is a limit to the analysis I can provide, but counsel have raised the issue, and they are right to do so. Different judges have taken different positions in respect of this, and so counsel have suggested it would be helpful to have some guidance. I am not in a position to provide guidance, but my own view in these cases, where there are issues of capacity and best interests but there are also issues between the detained patient and the Mental Health Trust, is that it is helpful for these latter proceedings to be issued pursuant to Part 8 of the Civil Procedure Rules seeking the application of the Civil Procedure Rules, and in particular CPR Rule 40.20, granting a declaration but doing so in reliance on the statutory powers available to a judge of the High Court pursuant to section 19(2)(a) of the Senior Courts Act 1981.

Tempting as it is to make the declaration under the Mental Capacity Act 2005, it does not seem to me that that is the correct approach, and whilst section 15 is drafted in broad terms, it must be read and understood in the context of the Mental Capacity Act 2005. There are many patients who receive treatment compulsorily pursuant to section 63 of the 1983 Act who have capacity. Part of the reason for that are issues of public safety and wider public policy. These issues may well involve other somewhat different interests, and it is easy to imagine there might be parties who wish to intervene in such cases. It seems to me it is always helpful for there to be a procedural code which leads to the declaration being granted. It is clear from this case it is not the Family Procedure Rules, and it does not seem to me appropriate to apply the Court of Protection Rules for the reasons I have just stated. Therefore it seems to me that the Civil Procedure Rules should apply.

As has been said by many judges, there should only be resort to the inherent jurisdiction if there is a gap in the statutory scheme. There is no gap in the statutory scheme, because the High Court's power to grant a declaration has been codified for a long time, going back to the 19th century, and the current statutory emanation of that power is section 19(2)(a) of the Senior Courts Act 1981. I am fortified in reaching that view by reference to two cases which counsel have helpfully referred me to in their updating notes this morning. The first is the analysis set out by Aikens LJ at paragraph 120 of Rolls-Royce plc v Unite the Union [2009] EWCA Civ 387:

And also, the typically erudite analysis of MacDonald J in the case of Salford County Council v W & Ors [2021] EWHC 61 (Fam):

There is no need, as we are told by the Court of Appeal in the case of DL v A Local Authority[2012] EWCA Civ 253, to resort to the inherent jurisdiction when Parliament has codified in statute the court's jurisdiction to make declarations. There is an issue between the Trust and FF regarding the treatment, and it is right that a declaration be made as between FF and the Trust which is binding, and that sits ancillary to the section 16 order that I have made under the Mental Capacity Act 2005. It also seems to me that in these cases it is going to be of benefit that whilst the Court of Protection application is issued to deal with capacity or best interest issues, a Part 8 claim form is also issued to deal with the declaration separately in respect of section 63 of the Mental Health Act 1983. There is no need for anything further to be done other than that claim form to be served, and for that Part 8 claim form to note the evidence and background set out in the Court of Protection. But given these applications for declarations in respect of section 63 may deal with wider issues of the safety of the public and other issues, the role of the CPR in providing for experts, open justice, and of course costs, is of benefit to any judge hearing these dual applications. That is not intended in any way to drive up costs or make matters more cumbersome, but adherence to the procedural rules is of course important.

For those reasons, therefore, I grant a declaration in respect of questions of capacity pursuant to section 15 of the Mental Capacity Act 2005; I make the order sought by the Trust in respect of best interests under section 16 of the Mental Capacity Act 2005; and I will make a declaration in respect of section 63 of the Mental Health Act 1983 pursuant to section 19 of the Senior Courts Act 1981. Those are my reasons for granting the substantive relief in these difficult proceedings.

I have set out as an annexe to this judgment, the terms of the final order in the event that this is of assistance in future cases.

Section (6) of this judgment is the question of the transparency order. I have not heard any argument in respect of questions of transparency orders being made in the Court of Protection combined with issues of open justice in respect of a Part 8, Civil Procedure Rules claim. That is because no Part 8 claim form was issued, as I understand it, in this case, but that relief being granted in respect of the section 63 issue was dealt with by way of appropriate case management decisions by other judges earlier, so I need not say more about that. The current transparency order, however, prohibits the naming of FF, her location, the identity of her father and other family members. I see no reason why that should not endure for the lifetime of FF. It should also endure for a period of six months after she passes with any application to vary or discharge that injunction being made on the papers in the first place to my clerk.

I also have to consider the extent to which the treating clinicians should remain subject to the protection of a transparency order so they cannot be identified. In my judgment, the ongoing care of FF is the court's priority. I am told and I accept that if treating clinicians were to be identified, that would distract them from the care they must provide to FF at this difficult time. I accept everything the Supreme Court says in the case of Abbasi [2025] UKSC 15, and so it seems to me at this stage, whilst I am not making an indefinite order prohibiting the naming of the treating clinicians, they cannot be named whilst they continue to treat FF. Because that may be a relatively large number of different professionals, I am simply going to, as Ms Scott invites me to do, describe a category of professionals and others, that cannot be named. Any application to vary or discharge that injunction can again be made on notice to the parties and provided to my clerk. Those are my reasons for making and continuing a transparency order to protect FF and her family and the treating clinicians, having a proper regard to the balance between Article 8 and Article 10 and giving due regard to the requirements for justice in cases involving difficult, private medical issues, but also recognising that issues may have some interest to a wider public.

(7) Conclusion

That concludes the judgment in this matter.

FF lacks capacity to:

It is lawful for FF’s treating clinicians not to take steps towards providing FF with nutrition and hydration or consequential treatment of the medical complications which may arise from her diagnosis of anorexia nervosa by force or threat of force (whether by use of restraint or sedation), even if such treatment is necessary to preserve FF’s life.

Having undertaken a full merits review, it is lawful for FF’s treating clinicians not to take steps towards providing FF with nutrition and hydration or consequential treatment of the medical complications which may arise from her diagnosis of anorexia nervosa by forceor threat of force under the MHA (whether by use of restraint or sedation). For the avoidance of doubt:

It is in FF’s best interests to receive treatment for her anorexia nervosa, including nutrition and hydration and consequential treatment of the medical complications which may arise from her diagnosis of anorexia nervosa, as set out in the care plan dated 21 May 2025 and the amended “Admission advice for Hospital B” dated 23 June 2025, and which, for the avoidance of doubt, will be given in accordance with her wishes.

If at any time FF expressly accepts or requests an escalation of treatment to provide nutrition and hydration or consequential treatment of the medical complications which may arise from her diagnosis of anorexia nervosa, such treatment will be provided if her treating clinicians consider it clinically indicated and in her best interests at the relevant time.