Leeds and York Partnership NHS Foundation Trust v FF & Anor [2025] EWCOP 26 (T3)

[2025] EWCOP 26 (T3)

Case No 20014975

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

AND IN THE COURT OF PROTECTION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 24/06/2025

Before

THE HONOURABLE MR JUSTICE MCKENDRICK

Between

LEEDS AND YORK PARTNERSHIP NHS FOUNDATION TRUSTApplicant

FF (by her Litigation Friend, the Official Solicitor)Respondent

GGRespondent

Ms Sutton KC (instructed by Capsticks Solicitors) for Applicant

Ms Scott (instructed by the Official Solicitor) for First Respondent

GG appeared in person for in person

Hearing Hearing dates: 23, 24 June 2025

Approved Judgment

.............................

THE HONOURABLE MR JUSTICE MCKENDRICK

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

McKendrick J :

[1]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.

[2]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.

[3](1) Introduction The applicant in these proceedings, which are primarily before the Court of Protection, is the Leeds and York Partnership NHS Foundation Trust. They have been represented through leading counsel, Ms Emma Sutton KC. The first respondent to the application is FF. She is the person at the centre of these proceedings. There is no dispute that she lacks capacity to conduct these proceedings. The Official Solicitor has accepted an invitation to act as her litigation friend and has done so. She is represented through counsel, Ms Katie Scott. The second respondent is FF's father, GG. GG is a litigant in person. He has attended throughout the two days of this hearing and he has made helpful observations. He is a devoted father who has been involved in his daughter's life and has supported and assisted her and worked with the medics in a collaborative fashion to deal with the difficult circumstances to which I will turn.

[4]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.

[5]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.

[6]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.

[7]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.

[8](2) Background With that introduction, I turn to section (2) and the background. FF has been subject to detention pursuant to section 3 of the Mental Health Act 1983 since 30 January 2024 at a specialist adult eating disorder unit (SEDU) in a hospital in the north of England. She has extended section 17 leave and is able to leave the hospital, and return to a supported living placement for up to 28 nights at a time. She then returns to hospital and the cycle is repeated. That is her current situation.

[9]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.

[10]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.

[11]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.

[12]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.

[13]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

[14]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.

[15](3) The evidence At the heart of the treating clinical team is FF's responsible clinician. Having read her evidence and heard her give evidence, it seems to me she is a clinician of the very first rate. FF and her family are fortunate that FF has received dedicated and continuous care since 2010 from LB. She is a consultant nurse and, as I say, the responsible clinician. She has the great benefit of having known FF and having been involved in treating her for over the last 15 years. For the purposes of this application, she has produced a COP3 form regarding FF’s capacity to make the relevant decisions, and two witness statements, and has also contributed to a number of important care plans. She gave evidence yesterday by video link and was questioned by both counsel.

[16]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: 1. Enforced feeding against her wishes via nasogastric administration to a healthy BMI with the understanding that this would be traumatising to her. This would require 7 person restraint up to 3xa day with significant levels of both verbal and physical violence from the patient, with need for additional equipment from staff in the form of restraint POD, arm guards and spit shields. Once a healthy BMI is achieved, attempts would then be made to transition onto an oral diet. This would take approximately 12 months, and would cause ongoing re-traumatisation and iatrogenic harm. 2 Remain on a Section 3 and continue the current treatment and cycles of admissions. Current treatment plan requires the patient to consume oral supplement drinks to maintain current BMI of around 13.5, which remains significantly underweight. If the patient does not follow this plan for a period of 48 hours, forced feeding commences as per option 1., The patient describes this current plan as torturous and is only concordant with such due to the ‘threat’ of enforced feeding. Psychological harm continues, with no perceived benefit other than maintaining the current status quo and will continue cyclical lengthy admissions requiring restrictive interventions which are said to be in breach of Article 3 of her human rights. 3 Apply to the court to withdraw enforced treatment under the Mental Health Act and therefore any treatment given would be with the consent of the patient. Language is of the utmost importance with this option in that withdrawal applies to enforced treatment under the MHA, not treatment altogether. An extensive package of care would remain available to the patient with the hope it would empower her to make some positive changes of her own volition. However, it must be acknowledged that without the use of MHA legislation, it is likely the patient will deteriorate and this may lead to her death. As such, an application is sought to declare whether it is in her best interests and lawful to do so.

[17]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.

[18]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.

[19]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.

[20]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:

"32. It has become more difficult over time to justify ethically repeated, lengthy, involuntary treatment to prolong life when we cannot have any certainty that doing so will alleviate her suffering and offer the possibility of recovery or quality of life that is meaningful to her, in fact, it is our belief that the interventions required to administer appropriate treatment are causing further harm. Her significant and prolonged history of trauma and abuse are revisited on a daily basis when feeding occurs with the distress caused by periods of distress synonymous to her with the rape she has experienced during her life. Her significant levels of violence both to herself and others serve as a function to push others away, feeling her negative perception of self and belief that she is a bad person undeserving of care, or love. 33. The dynamics involved in the compulsory treatment of [FF's] eating disorder are complex, with the “anorexic control paradox” and a “coercion paradox” constantly competing with each other. In this sense, the former is the paradox that drives beliefs and values of her anorexia driving a wish to be in control yet leading to a loss of control. The latter is where [FF] appears to coerce others through her behaviours into having to coerce her. [FF] actively seeks coercion and restrictive practice yet fiercely resists it. This renders the dilemma that we now find ourselves in, questioning whether further enforced care against her wishes continues to be in her best interests. 34. Any weight restoration achieved has not improved psychological distress or presentation of trauma/EUPD. Indeed, lengthy admission required to achieve healthy BMI back in 2017 caused significant enough iatrogenic harm that has exacerbated violence further during her more recent episode of care. Despite significant enforced feeling during the 13-month admission to [Hospital A] inpatients 2022-2023, any weight restoration achieved has proven ephemeral. Consideration has been given to exploration of an alternative unit, a different treatment team, however I believe it would cause further disability. As for FF, it would further endorse her belief that she is unwanted, unloved and rejected by all around her."

[21]She goes on to say this:

"Withdrawal of enforced treatment would not mean that she does not receive any but that what is given is on her terms and is of benefit to her in a healthy, therapeutic way. She has maintained throughout the entirety of the duration of working with her an absolute refusal on her part to want to engage in recovery focused in any way. What would be required to facilitate weight restoration would be extremely restrictive and would require her to be subjected to further periods of regular restraint and iatrogenic harm for little perceived benefit and no volition on her part to continue progress. If she were to change her mind at any point, such treatment would be available to her on an informal basis with all efforts made for collaboration and participation on her part. The application is not motivated in any way to bring about her death, but seeking a declaration that it is not in her best interests to enforce treatment against her wishes may in all likelihood result in such. Contrastingly, to continue as we are currently is achieving little else other than enforcing further suffering."

[22]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.

[23]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:

"It is my opinion as RC that discharge from the MHA framework and any future treatment being on a voluntary basis is the available method of treatment that acknowledges and attempts to empower [FF] and maintain her dignity and autonomy. Such treatment, however, i.e. the removal of the MHA framework, is likely to lead to her death. It is appreciated wholeheartedly that the declaration sought is of the utmost gravity. However, the prolonged re-traumatisation and psychological harm caused by such intervention is not serving any sustained or meaningful improvement, further fuelling a cycle of resistance to treatment, disability and psychological distress. [FF's] ferocious resistance to enforced treatment for EUPD and lack of insight are all negative prognostic factors."

[24]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.

[25]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.

[26]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.

[27]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: [7.1] “This is a very difficult case, certainly one of the most complex and severe I have seen in my career. My sympathies go out to [FF] herself, family and all the professionals involved in the case. Cases such as these are always challenging to manage, and there is inevitably a delicate balance between sustaining life, through to the desire for collaborative care versus coercive treatment. Human rights and ethical dilemmas are always woven throughout a case like this, which can often lead to a difference of opinion and difficult emotive challenges. [7.7] In my opinion, there have been gallant attempts to treat over a long period of time. This includes a 17 month admission in A Centre, a four month admission in B , episodes of treatment in acute medical hospitals, a six month admission to C, a four month admission to D Hospital, a four year admission to E Ward, two years under community affective services and community eating disorder services, 2.5 years within a community CMHT, a further three month admission at C, three months within a supported accommodation, and another ten months at C . This treatment spans over 15 years, both inpatient and community settings, under different clinical teams for many months at a time, with plenty of scope to build a therapeutic relationship. The staff will have had different skill mixes and a range of experiences. In my opinion, it would be very difficult to argue that this condition has not been applied. [7.8] In my opinion, given the close timing of the last admission to a SEDU, I am unable to see how another inpatient admission to a SEDU would be any different. I do not believe there will be any change of treatment if admitted. There is no change to context or circumstance, nor a change in perspective of the clinical team, the patient herself, or family. Regarding outcome of previous treatment, if anything, her last admission from May 2011 to August 2015, prior to getting unwell again, was in some way successful, given that after two years of relative stability at low weight (BMI 13), the treating team were able to restore weight to normal weight band. So the questions should be asked, why can’t this be repeated? And was there any particular treatment at that point which helped the turnaround? This leads to the next consideration: [7.13] I am not convinced there are any other options in the community. Given her range of symptoms and challenges, in my opinion the current staff team …. are doing an incredible job to support her and remain positive and dedicated to the task. Looking after such challenging patients can cause burnout amongst staff (I understand this happened on the inpatient ward), so it is commendable that the leadership team ….. are supporting the staff so well. Given her eating difficulties, psychiatric comorbidity, and level of self-harm, in my clinical experience, there are not many supported housing agencies that would be able to meet her needs and this needs to be recognised [7.22] Therefore, taking all this into account, in my opinion, I agree with the treating team that it is justifiable, appropriate and proportionate to remove enforced treatment at this stage. As stated previously, I am unable to weigh the likelihood of the potential consequences for this action. Of course there is a risk of deterioration and this would need to be considered alongside a clear and robust contingency plan. The decision making DILEMA checklist (Text Box 6 Appendix 3) may be helpful for the treating team. [7.23] In my opinion, she currently lacks capacity to make decisions about her treatment for her eating disorder and wider mental health difficulties. I did not examine her capacity for other decisions surrounding her care. Whilst I was not able to adequately assess her capacity specifically, I am confident that she falls down on all facets of the capacity assessment. I am not even convinced she was able to understand the decisions surrounding her treatment, let alone use and weigh up the information to reach a decision. She was not able to communicate her decision to me. Given the strength of her anorexic cognitions, the belief that she is overweight when clearly emaciated, the reluctance to take in nutrition despite being very underweight, and the belief that there is nothing wrong with her despite her level of morbidity, leads to my confidence that she is unable to weigh up the information to arrive at her decision. I do not believe there is any disagreement from the treating team that she lacks capacity to make decisions about her treatment. [7.24] So in my opinion, I agree with the treating teams’ consideration to remove enforced treatment and given she lacks capacity, the next stage of consideration is what is in her best interest in terms of management and treatment? This will require further deliberation involving [FF] herself (if able) and her family (if appropriate) as well as all those involved in her care. Honest discussions about overall prognosis, potential need for palliation and other contingencies must be arranged. Equally, if she does make improvements, next stages of treatment need to be considered.”

[28]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.

[29]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.

[30]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”

[31]That is the evidence filed in these proceedings.

[32](4) Best interests under the Metal Capacity Act Turning then to section (4) of this judgment, I must consider issues of best interests under the Mental Capacity Act 2005. I need only set out the law in respect of best interests. As I have said, questions of capacity are not in dispute. I have very firmly in mind section 1 and section 4 of the 2005 Act. I also remind myself of the MCA Code of Practice:

"5.31 All reasonable steps which are in the person’s best interests should be taken to prolong their life. There will be a limited number of cases where treatment is futile, overly burdensome to the patient or where there is no prospect of recovery. In circumstances such as these, it may be that an assessment of best interests leads to the conclusion that it would be in the best interests of the patient to withdraw or withhold life-sustaining treatment, even if this may result in the person’s death. The decision-maker must make a decision based on the best interests of the person who lacks capacity. They must not be motivated by a desire to bring about the person’s death for whatever reason, even if this is from a sense of compassion. Healthcare and social care staff should also refer to relevant professional guidance when making decisions regarding life-sustaining treatment. 5.32 As with all decisions, before deciding to withdraw or withhold life-sustaining treatment, the decision-maker must consider the range of treatment options available to work out what would be in the person’s best interests. All the factors in the best interests checklist should be considered, and in particular, the decision-maker should consider any statements that the person has previously made about their wishes and feelings about life-sustaining treatment. 5.33 Importantly, section 4(5) cannot be interpreted to mean that doctors are under an obligation to provide, or to continue to provide, life-sustaining treatment where that treatment is not in the best interests of the person, even where the person’s death is foreseen. Doctors must apply the best interests’ checklist and use their professional skills to decide whether life-sustaining treatment is in the person’s best interests. If the doctor’s assessment is disputed, and there is no other way of resolving the dispute, ultimately the Court of Protection may be asked to decide what is in the person’s best interests."

[33]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: :

"35. The authorities are all agreed that the starting point is a strong presumption that it is in a person's best interests to stay alive. As Sir Thomas Bingham MR said in the Court of Appeal in Bland, at p 808, 'A profound respect for the sanctity of human life is embedded in our law and our moral philosophy'. Nevertheless, they are also all agreed that this is not an absolute. There are cases where it will not be in a patient's best interests to receive life-sustaining treatment." "39. The most that can be said, therefore, is that in considering the best interests of this particular patient at this particular time, decision-makers must look at his welfare in the widest sense, not just medical but social and psychological; they must consider the nature of the medical treatment in question, what it involves and its prospects of success; they must consider what the outcome of that treatment for the patient is likely to be; they must try and put themselves in the place of the individual patient and ask what his attitude to the treatment is or would be likely to be; and they must consult others who are looking after him or interested in his welfare, in particular for their view of what his attitude would be."

[34]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.

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

"Where the determination relates to life-sustaining treatment he must not, in considering whether the treatment is in the best interests of the person concerned, be motivated by a desire to bring about his death."

[36]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.

[37]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.

[38]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.

[39]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.

[40]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.

[41]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.

[42]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. (5) Section 63, Mental Health Act1983

[43]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:

"The consent of a patient shall not be required for any medical treatment given to him for the mental disorder from which he is suffering, not being a form of treatment to which section 57, 58 or 58A above applies, if the treatment is given by or under the direction of the approved clinician in charge of the treatment."

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

"145(1) 'medical treatment' includes nursing, psychological intervention and specialist mental health habilitation, rehabilitation and care (but see also subsection (4) below); [...] (4) Any reference in this Act to medical treatment, in relation to mental disorder, shall be construed as a reference to medical treatment the purpose of which is to alleviate, or prevent a worsening of, the disorder or one or more of its symptoms or manifestations."

[45]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.”

[46]The next case I look at is R (JB) v Dr Haddock

[2006] EWCA Civ 961

, the key paragraphs is as follows:

"13. This Court, in R (Wilkinson) v Broadmoor, held in judicial review of an RMO's decision to treat a detained mentally ill hospital patient without his consent pursuant to section 58(3)(b), that the court should conduct a 'full merits review' as to whether the proposed treatment infringed his human rights, and that, to that end, he is entitled to require the attendance of witnesses to give evidence and to be cross-examined. As appears later in this judgment, the rigour of that ruling may be qualified to the extent that resolution of challenges to section 58(3)b) decisions may not always or even mostly require oral evidence. However, it is authority for the proposition that a court, albeit exercising a judicial review function, does so, not on a Wednesbury basis, but by deciding the matter for itself on the merits after a full consideration of the evidence whether oral or in writing. The importance of this is the further safeguard it provides to vulnerable, detained mental patients in addition to that of the independently appointed SOAD for scrutiny of medical decisions with a potential to violate their human rights. 14. Nevertheless, courts, in determining whether forcible treatment of a patient has been "convincingly shown" to be medically necessary, should, as the Court said in R (B) v Dr SS (RMO) & Ors [2005] EWHC 86 (Admin), pay particular regard to the views of those charged with his care and well-being. And, as Simon Brown LJ, as he then was, observed in R (Wilkinson) v Broadmoor, at paragraph 31, courts should not be astute to overrule a treatment plan decided upon by the RMO and certified by a SOAD following the required consultation with two others concerned with the patient's care; see also Herczegfalvy, at para 86."

[47]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.

[48]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:

"18. A positive decision to impose non-consensual medical treatment pursuant to section 63 of the MHA is a public law decision susceptible to judicial review: see R (on the application of B) v Haddock (Responsible Medical Officer) [2006] MHLR 306. Paras 13 and 14 of that decision make clear that convention rights will be in play and therefore a "full merits review" must be undertaken on the evidence, with the court making the decision de novo, but placing considerable weight on the initial decision made under section 63 by the approved clinician in charge of the treatment. 19. But a decision made by the approved clinician in charge of the treatment in respect of a patient detained under the MHA not to impose any treatment on him or her is not accompanied by any procedure for judicial scrutiny of it. This is surprising, especially as Article 2 of the European Convention on Human Rights is (as here) likely to be engaged. As is well-known this protects the right to life. It is the most fundamental of the convention rights. Countless authorities have emphasised the imperative duty on public authorities to give effect to this right where detained persons are concerned. So if the approved clinician in charge of the treatment decides not to impose potentially life-saving treatment one can see the important need for judicial scrutiny to determine whether the patient has with a full awareness of the implications elected to opt-out of the right to life granted to him by Article 2. And one would expect, as has happened here, that a second medical opinion would be commissioned concerning the approved clinician's decision. […] 21. In my judgment where the approved clinician makes a decision not to impose treatment under section 63, and where the consequences of that decision may prove to be life-threatening, then the NHS trust in question would be well advised, as it has here, to apply to the High Court for declaratory relief. The hearing will necessarily involve a 'full merits review' of the initial decision. It would be truly bizarre if such a full merits review were held where a positive decision was made under section 63, but not where there was a negative one, especially where one considers that the negative decision may have far more momentous consequences (i.e. death) than the positive one."

[49]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.

[50]Moor J followed that approach in the case of A Midlands NHS Trust v RD

[2021] EWCOP 35

as follows"29. There is one further matter that I should mention and that relates to the question of the interaction between the Mental Capacity Act and the Mental Health Act. I am quite satisfied that I should apply Paragraph [21] of the judgment of Mostyn J in Nottinghamshire Healthcare NHS Trust v RC

[2014] EWCOP 1317

where he said: 'In my judgment where the approved clinician makes a decision not to impose treatment under section 63, and where the consequences of that decision may prove to be life-threatening, then the NHS trust in question would be well advised, as it has here, to apply to the High Court for declaratory relief. The hearing will necessarily involve a 'full merits review' of the initial decision. It would be truly bizarre if such a full merits review were held where a positive decision was made under section 63, but not where there was a negative one, especially where one considers that the negative decision may have far more momentous consequences (i.e. death) than the positive one.'

30. In fact, there was going to be a full merits review in this case in any event, pursuant to the Mental Capacity Act, but I take the point that questions involving the Mental Health Act engage public law matters. In particular, the safety of the public is one factor that doctors have to take into account. I do therefore take the view that I should make the declarations that I am invited to make, pursuant both to the Mental Capacity Act and the inherent jurisdiction of the High Court for the avoidance of any doubt."

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

[52]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.

[53]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.

[54]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.

[55]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.

[56]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

"For the purposes of the present case, I think that the principles in the cases can be summarised as follows: (1) the power of the court to grant declaratory relief is discretionary. (2) There must, in general, be a real and present dispute between the parties before the court as to the existence or extent of a legal right between them. However, the claimant does not need to have a present cause of action against the defendant. (3) Each party must, in general, be affected by the court's determination of the issues concerning the legal right in question. (4) The fact that the claimant is not a party to the relevant contract in respect of which a declaration is sought is not fatal to an application for a declaration, provided that it is directly affected by the issue. (5) The court will be prepared to give declaratory relief in respect of a 'friendly action' or where there is an 'academic question' if all parties so wish, even on 'private law' issues. This may particularly be so if it is a 'test case', or it may affect a significant number of other cases, and it is in the public interest to decide the issue concerned. (6) However, the court must be satisfied that all sides of the argument will be fully and properly put. It must therefore ensure that all those affected are either before it or will have their arguments put before the court. (7) In all cases, assuming that the other tests are satisfied, the court must ask: is this the most effective way of resolving the issues raised. In answering that question it must consider the other options of resolving this issue."

[57]And also, the typically erudite analysis of MacDonald J in the case of Salford County Council v W & Ors

[2021] EWHC 61 (Fam)

:"61. Beginning with general principles, by s.16 of the Judicature Act 1873, the High Court of Justice was created as a superior court of record. At the commencement of that Act the jurisdiction that was vested in or capable of being exercised by certain courts of common law and equity and certain other courts was transferred to and vested in the High Court. Section 19 of the Senior Courts Act 1981 stipulates that the High Court shall be a superior court of record, which court can, subject to the provisions of the 1981 Act, exercise all such jurisdiction conferred on it by the 1981 Act or any other Act and all such other jurisdiction as was exercisable by it immediately before the commencement of the 1981 Act. Within this context, s. 19(2)(b) of the Senior Courts Act 1981 subsumes and incorporates the inherent jurisdiction of the High Court previously exercisable by the superior courts under common law. The general jurisdiction of the High Court as defined in s.19 of the 1981 Act is vested in all the Judges of the High Court, irrespective of the Division to which they are assigned.

62. With respect to the specific question of declaratory relief under the inherent jurisdiction, the court has a discretionary power under its inherent jurisdiction (as subsumed and incorporated into s. 19(2)(b) of the Senior Courts Act 1981) to grant declaratory relief. As between the parties to proceedings, the court may grant a declaration as to the rights of the parties, as to the existence or facts or as to a principle of law (see Financial Services Authority v Rourke [2002] CPRep 14 and L v M (Application by Non-Biological Mother)

[2015] 1 FLR 674

). When considering whether to grant a declaration or not, the court should take into account justice to the claimant, justice to the defendant, whether the declaration would serve a useful purpose, and whether there are any other special reasons why or why not the court should grant the declaration (Financial Services Authority v Rourke [2002] CPRep 14). A declaration may be refused if it would prejudice the fairness of future proceedings (see Amstrad Consumer Electronics Plc v The British Phonographic Industry Ltd

[1986] FSR 159

). "86. Having regard to the authorities set out above, I am satisfied that the court does have jurisdiction under its inherent jurisdiction (as subsumed and incorporated into s.19 of the Senior Courts Act 1981) to grant a declaration as to the children's legal status. As between the parties to proceedings, the court may grant a declaration as to the rights of the parties, as to the existence or facts or as to a principle of law (Financial Services Authority v Rourke [2002] CP Rep 14 and L v M (Application by Non-Biological Mother)

[2015] 1 FLR 674

[58]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.

[59]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.

[60]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. (6) The transparency order

[61]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.

[62]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.

[63](7) Conclusion I pay tribute to the Trust and its clinical team for the care and dedication and how they have sought to look after FF for a period of over 15 years. They were right to bring this application to court in difficult circumstances. I pay tribute to GG for the dedication and care he has provided to her and his no-doubt difficult, but brave decision to support the relief sought in very difficult circumstances. I am grateful to the Official Solicitor and her team for her assistance.64. It seems to me in a case like this that the early involvement of an eminent expert psychiatrist is helpful. This case has been conducted with collaboration from the outset. That has made the role of an expert psychiatrist in some ways even more helpful to the court, because it has had the support of the parties. It may well be in cases where a family are opposed to the declaration sought by a trust that the early involvement of a psychiatrist may or may not be helpful, because ultimately, when the matter gets to court, an application may be made for a different psychiatrist and they may take a different view. It is hard to say. But the early involvement of Dr Cahill seems to me to have been of great assistance in this difficult case. I am grateful to all solicitors and counsel for their very helpful assistance.

65. I wish FF well as she confronts, as she must, a change in her treatment and care regime which places greater autonomy on her. I know she wants the torture to stop, and I hope that some of the decisions made today will help her and that she continues to understand the support that the clinical team around her will offer her in the days and weeks and, I very much hope, months and years to follow.

[66]That concludes the judgment in this matter. ANNEXE

IT IS DECLARED PURSUANT TO SECTION 15 OF THE MENTAL CAPACITY ACT 2005 THAT:

[1]FF lacks capacity to:(1) Conduct these proceedings, and

(2) Make decisions about treatment for anorexia nervosa, including decisions regarding her nutrition and hydration and consequential treatment of the medical complications which may arise from her diagnosis of anorexia nervosa.

[2]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.

IT IS DECLARED PURSUANT SECTION 19(2)(b) OF THE SENIOR COURTS ACT 1981 THAT:

(b) OF THE SENIOR COURTS ACT 1981 THAT:

[3]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:(1) This declaration shall be of effect notwithstanding that in the opinion of FF’s treating clinicians, it would be necessary to administer such treatment by restraint or sedation to preserve FF’s life;

(2) This declaration applies to all future hospital admissions unless professionals undertaking assessments (for the purposes of MHA detention) form the reasonable and bona fide opinion that they have information not known to this court, and which puts a significantly different complexion on the case.

IT IS ORDERED PURSUANT TO SECTION 16 OF THE MENTAL CAPACITY ACT 2005 THAT:

[4]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.

[5]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. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 46 Chancery Lane, London WC2A 1JE Email: civil@epiqglobal.co.uk