Two anorexia judgments demonstrate scope of family cases

Family|April 11th 2016

Family court judges deal not only with extremely difficult cases, but also with a huge range of different circumstances, reflecting all of the varied aspects of family life, both good and bad. Last week, for example, there were two reported cases which concerned the awful condition anorexia nervosa.

Now, I don’t pretend to have any expertise on anorexia and, thankfully, it is not something that I have come across personally. However, I do think that it is a condition that is misunderstood by many, who believe that it is trivial: the sufferer is simply making a life choice, and could resume normal eating habits if they chose to do so. That, unfortunately, is not true. As Mr Justice Peter Jackson explained at the beginning of his judgment in Re W (Medical Treatment: Anorexia), anorexia is a pernicious condition which, in its severe form, is life-governing and potentially fatal.

Re W is one of the most worrying cases that I have ever read. It concerned a 28 year old woman, ‘W’, who has suffered from anorexia for twenty years. Mr Justice Jackson starkly explains her circumstances thus:

“Since the age of 11, she has had six admissions for inpatient treatment, spread between five units around the country and amounting to about 10 years in total. Her current admission has lasted for 2½ years and yet, despite the most intensive support, she is barely eating and is losing weight at the rate of 500 g – 1 kg per week. She now weighs less than 30 kg and her BMI is 12.6. If she continues to lose weight at this rate, she will die.”

Now, one might expect that in such circumstances the last thing that W needs is to be discharged from hospital, where she can surely receive the most intensive treatment possible. However, that was precisely what the local health board proposed, when they brought their application to the Court of Protection. It was a plan of which Mr Justice Jackson approved:

“W should now be discharged into the community with a closely thought-out package of support for her and her family. Given W’s fragile condition, it is a plan that has only been arrived at after the most anxious consideration by her care team. It will at first seem counterintuitive that someone so ill should be discharged from hospital. The conventional assumption is that hospital treatment is likely to bring benefits, but the evidence has persuaded me that in this case that is not so.”

He explained his reasons for the decision as follows:

“After all that has happened, it now has to be accepted that it is beyond the power of doctors or family members, and certainly beyond the power of the court, to bring about an improvement in W’s circumstances or an extension of her life. The possibility that the withdrawal of inpatient mental health services will bring about a change for the better may not be very great, but in my judgment it is the least worst option from W’s point of view.”

He concluded his judgment with the following:

“I know that W understandably considers that she has in some way failed. I certainly do not see it that way. To be faced with such a severe illness from such a young age is not a failure but a misfortune. W and her family now face a daunting future. They know that it will be a huge task for W to live in the community and that the chances of real change are unlikely, but they will be the last to lose hope. Unlikely things happen all the time and if any family deserves some good fortune it is this one. I earnestly hope that things go as well as they can for W, who has so many good qualities if her illness will only let her be.”

I’m sure everyone will agree with that.

The other case, Re Z (Recognition of Foreign Order), was quite different, in that the decision as to treatment of the anorexia sufferer had already been made by a court in Ireland. Here, as the case name suggests, the problem was one of jurisdiction. Now, I don’t think the jurisdictional issue delayed matters at all in this particular case, but the last thing an urgent matter like medical treatment requires is to be side-tracked by such legal niceties. Hopefully, this judgment will clarify the jurisdictional position concerning foreign orders relating to medical treatment, and help to reduce the chances of such things occurring in future.

Re Z concerned a girl, ‘Z’, who lives in the Republic of Ireland She is in her early teens and suffers from anorexia. Mr Justice Baker explained her situation:

“She received treatment at a number of hospitals in Ireland but by early 2016 it became clear that she required special treatment, incorporating nutrition, hydration and psychiatric treatment, which would include, if necessary, the use of restraint, and which could not be provided in her home country. Her doctors therefore made arrangements for her to be admitted and treated in a specialist unit in an English hospital which is able to provide the treatment required.”

Accordingly, the Health Service Executive for Ireland filed an application in the Irish High Court seeking an order authorising the treatment in the English hospital. That order was made and an application was then made for the order to be recognised and enforced by the English court.

The question was then raised whether the English court had jurisdiction to recognise and enforce orders concerning the medical treatment of children made by courts of another member state of the European Union. Jurisdiction in relation to children orders made by other EU countries is generally governed by the Brussels IIA regulation, which essentially says that orders made by the state where the child is habitually resident should be recognised by other EU states. However, the regulation does not specifically mention medical treatment orders.

The regulation does however refer to measures made for the protection of the child, and Mr Justice Baker considered that an order concerning the medical treatment of the child plainly amounted to a measure for the protection of the child. Accordingly, the order did come within the scope of the regulation. Mr Justice Baker therefore made an order declaring that the order made by the High Court of Ireland should stand as an order of the English court, thereby permitting Z’s emergency admission for treatment in a hospital in this country.

Following that order, Z was transferred to the English hospital and remains there at present, where she is making good progress. Let us hope it continues.

The full report of Re W (Medical Treatment: Anorexia) can be read here and the report of Re Z (Recognition of Foreign Order) is here.

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