Birmingham and Solihull Mental Health NHS Foundation Trust v CG (by their litigation friend, the Official Solicitor) & Anor [2026] EWCOP 37 (T3)

[2026] EWCOP 37 (T3)Case No COP20033278
IN THE COURT OF PROTECTION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 7 August 2026
Before
MRS JUSTICE THEISVICE PRESIDENT OF THE COURT OF PROTECTION
Between
Birmingham and Solihull Mental Health NHS Foundation TrustApplicantCG (by their litigation friend, the Official Solicitor)RespondentsCLGRespondent
Mr James Berry KC (instructed by Weightmans LLP) for ApplicantMs Katie Scott (instructed by the Official Solicitor) for First RespondentMs Victoria Butler-Cole KC (acting pro bono) for Second RespondentHearing Hearing date: 23 June 2026Judgment: 7 August 2026
Approved Judgment.............................This judgment was delivered in public but a transparency order dated 06 May 2026 is in force. 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 CG must be strictly preserved. All persons, including representatives of the media and legal bloggers, must ensure that this condition is strictly complied with. Failure to do so may be a contempt of court.

Introduction

[1]CG is a 36 year old woman with a chronic severe psychiatric illness. This is principally anorexia nervosa, complicated by emotionally unstable personality disorder and features consistent with complex trauma. Sadly, CG’s illness has persisted over very many years despite extensive treatment.[2]CG is now profoundly malnourished with her last recorded BMI being about 8.7. On any clinical assessment she is at real and imminent risk of death in the short to medium term.[3]The applicant, Birmingham and Solihull Mental Health NHS Foundation Trust (the Trust), reached the decision in March 2026 following extensive multi-disciplinary meetings that it would not seek orders to compel treatment as the Trust concluded it would not only fail to provide meaningful or durable benefit to CG, but it would expose her to a substantial risk of serious harm and risk accelerating her death.[4]The Trust applied to the Court of Protection seeking declarations confirming both CG’s lack of capacity and the lawfulness of the proposed course.[5]In their skeleton argument for the final hearing the Trust sought the following declarations:(1) A declaration pursuant to section 15(1)(a) of the Mental Capacity Act 2005 (MCA) that CG lacks capacity to make decisions regarding treatment for her eating disorder;(2) A declaration pursuant to section 15(1) ( c) MCA that it is lawful and in CG’s best interests (i) not to detain her under the Mental Health Act 1983 (MHA); and (ii) not to impose nasogastric feeding under restraint under s63 MHA. The Trust skeleton continued ‘In the alternative, and to the extent necessary, the Trust seeks equivalent declaratory relief pursuant to the inherent jurisdiction of the High Court’.[6]In her skeleton argument the Official Solicitor did not dispute the Trust’s position regarding what they proposed relating to CG but did take issue with the need for an application to the Court of Protection.[7]CG’s mother, CLG, was without legal representation until a few days prior to this hearing when Ms Butler-Cole K.C. stepped in to represent her Pro Bono. CLG supports the Trust’s conclusions regarding CG and the application to withdraw.[8]The case was listed for a two day hearing on 22 and 23 June 2026.[9]On 18 June 2026 the Trust issued an application seeking leave to withdraw their application pursuant to rule 13.2 Court of Protection Rules 2017.[10]At a directions hearing on 19 June 2026 it was established that there was no dispute about the application to withdraw but the Official Solicitor invited the court to hear legal argument and give a judgment with any guidance about the need to bring proceedings the court considered appropriate. In addition, CG had been told that she would have the opportunity to speak to me if she wished on the first day of the hearing. Directions were made that enabled CG to have the opportunity to speak to me on 22 June 2026 and for the court to hear submissions on 23 June 2026. This also enabled CLG to have the benefit of legal representation. The court is extremely grateful to Ms Butler-Cole for acting Pro Bono at such short notice.[11]On the day CG decided she did not wish to speak to me. I heard submissions on 23 June 2026 and reserved judgment until today.[12]I am extremely grateful to all the legal teams for the very high standard of written and oral submissions in this case.

Background summary and medical evidence

[13]CG has undergone repeated inpatient treatment since a young age, including 11 admissions to specialist eating disorder units over the last ten years with prolonged periods of detention under the MHA. Those admissions have included long periods during which nasogastric (NG) feeding was administered under physical restraint.[14]There has been a consistent pattern where attempts to restore weight have been accompanied by a marked escalation in severe self-harming behaviour, including ingestion of foreign objects requiring emergency surgery, repeated ligature attempts and other conduct placing CG at real risk of death. Notwithstanding significant support there has been no period of durable recovery or stabilisation.[15]CG currently lives in a supported living placement. Her last recorded BMI was about 8.7. On any clinical assessment she is at real and imminent risk of death in the short to medium term. The care that the Trust currently provides for CG is weekly visits from the eating disorder team to monitor bloods, weight, physical observations and to continue to offer informal admission to an eating disorder unit.[16]Dr S, Consultant Psychiatrist in Eating Disorders, is CG’s treating clinician and has known CG since 2019. Dr S has had sustained involvement in her care since August 2023 and confirms the pattern regarding CG’s treatment outlined above. Dr S concludes that NG feeding under restraint repeatedly triggers severe deterioration rather than recovery. In Dr S’s opinion psychiatrically CG demonstrates entrenched anorexic beliefs (denial of low weight, desire to reduce weight further), paranoid psychotic-like features (beliefs about poisoning, surveillance), persistent suicidal ideation and self-harm behaviour.[17]Dr S concludes that CG does not have capacity to make the relevant decisions regarding her treatment as she is unable to use or weigh the relevant information because of a severe anorexic cognitive distortion, fixed belief that she is overweight, an inability to appreciate risk of death and mistrust and paranoid beliefs about treatment. There is no challenge to the conclusions regarding CG’s lack of capacity to make decisions about her medical treatment, including admission and feeding.[18]Dr S’s risk analysis regarding further nasogastric (NG) feeding by restraint identifies the physical risks as being cardiac arrest due to CG’s low BMI, fractures due to osteoporosis and complications from restraint and refeeding. The behaviour and psychological risks include severe escalation in self-harm, ingestion of foreign bodies, potentially fatal self-injury, extreme distress and increased suicidality. In Dr S’s view there is a risk that CG may die more quickly as a result of imposing treatment than non-treatment and concludes that in the light of the history of NG feeding treatment under restraint would be futile and harmful.[19]At a multi-disciplinary best interests meeting in March 2026 that included the clinicians and CG’s family the unanimous conclusion was reached that NG feeding under restraint was no longer in CG’s best interests. There has been extensive exploration of alternative options which have included informal admission supported by psychological therapies and medication strategies, but these have all either been refused by CG or are not viable, with the result that no alternative exists that can effectively address the immediate cause of malnutrition.[20]Following this meeting and the decision reached Dr S concludes that a non-coercive, supportive approach including continued community engagement and monitoring, ongoing offers of voluntary treatment, medical support where accepted and escalation to palliative care where necessary is the most appropriate treatment plan for CG. Dr S also considers that a DNACPR is clinically appropriate bearing in mind the context and prognosis.[21]In Dr S’s final statement and proposed treatment management plan he sets out the treatment options for CG, summarised as follows:
“[90] If [CG] ever changed her mind in future and decided that she would like to work with the inpatient eating disorder service, we would admit her to ... unit (a specialist eating disorder unit at the ... hospital). However, this would only be to support her eating orally, and would still not NG feed her under restraint. If she chose to be NG fed passively, i.e., accepting it by co-operating and walking to the clinic room in order to have it, this would also be feasible. However, if she pulled out her NG tube, this would be seen as non-cooperation with the treatment plan, and again it would not be re-inserted under restraints. [91] As such, the plan which would be available is as follows and annexed to this statement: a. Weekly visits from the eating disorder service to monitor bloods, measure weight, monitor physical observations and encourage snack support. b. Continue to offer informal admission on an eating disorder unit subject to bed availability and full active co-operation from [CG]. As per her previous informal admission, [CG] would be expected to adhere to a strict contract and a copy of this is annexed to the management plan.” a. Weekly visits from the eating disorder service to monitor bloods, measure weight, monitor physical observations and encourage snack support. b. Continue to offer informal admission on an eating disorder unit subject to bed availability and full active co-operation from [CG]. As per her previous informal admission, [CG] would be expected to adhere to a strict contract and a copy of this is annexed to the management plan.”
[22]Following the best interest meeting an independent second opinion was sought from Dr Paul Robinson. On 3 June 2026 he confirmed that having reviewed Dr S’s statements he supports the conclusions reached by the clinical team, both in relation to CG’s capacity and the risk analysis undertaken regarding any proposed treatment. Dr Robinson concludes that inpatient treatment aimed at weight restoration is unlikely to be successful and that based on the history weight gain has led to an increase in significant self-harm. He agrees that further coercive treatment would be clinically inadvisable and unlikely to benefit CG. Professor Robinson also looked at potential alternatives and concludes that there is no identifiable alternative treatment capable of reversing CG’s clinical course.[23]Dr Robinson provided a limited qualification to his overall conclusion that short-term time-limited intervention may be justified if CG becomes acutely medically unstable, as such treatment would be lifesaving. It would be with the aim of restoring medical stability.[24]The Trust issued these proceedings in April 2026 and directions were given on 6 May 2026 listing the matter for a hearing before Judd J on 11 May 2026. At that hearing further directions were given for the Trust to file updating evidence, for there to be evidence of CG’s updated wishes and feelings and for further questions to be put to Dr Robinson. The matter was listed for two days before me on 22 and 23 June 2026.[25]The Official Solicitor filed a skeleton argument on 15 June 2026 in which she raised the issue as to whether proceedings needed to be brought at all, and if so, the Court of Protection or the High Court has jurisdiction to make the declarations sought.[26]On 18 June 2026 the Trust filed an application to withdraw these proceedings in the light of the independent report of Dr Robinson and the skeleton argument filed on behalf of the Official Solicitor stating in the application ‘[10] The Trust made the application because it wanted independent scrutiny of the lawfulness of its grave decision not to impose life-sustaining treatment (naso-gastric feedings under restraint, for which CG would be admitted under s3 of the Mental Health Act 1983)’. [11]The Trust’s position is that CG lacks capacity to make decisions regarding treatment for her eating disorder and that the treatment described is not in her best interests. [12] Dr Robinson, the independent expert witness, is in agreement with the Trust’s position on capacity and best interests. [13] In terms of the OS’s position, the OS accepts that:a. The available evidence (which does not include any contact between CG and the OS) establishes that it is more likely than not that CG lacks capacity to make decision about treatment for her eating disorder: Skeleton Argument at [12];b. As matters stand at present and to the extent that the decision is properly framed as a best interests decision, it is not in CG’s best interests to be NGT fed (presumably under restraint) in order to treat her underlying anorexia: Skeleton Argument at [36]. [14] Moreover, the OS doubts the need for the Trust to have brought (or pursued) the application at all, stating in her Skeleton Argument at [46]:
“While the Official Solicitor can well understand why the Trust may want to bring an application for declaratory relief to provide reassurance and protection to their clinicians who are making treatment decisions in what is a difficult and finely balanced area, the Court should be slow to build in an expectation (as Mostyn J did), that Trusts should be doing so in circumstances (such as the present case) where: a. There is unanimity among the treating team that treatment under the MHA is not appropriate. b. There is agreement with the clinical plan from the patient and the those concerned with the patient’s welfare. c. The Trust has obtained an independent external second opinion from an appropriately qualified and experienced clinician, as to whether the clinical plan is appropriate and protective of the patient’s human rights. It may be advisable for the second opinion doctor to have read the medical records and met with the patient, the clinical team (and where appropriate the patients’ family).” [15] In the particular circumstances of this case, where there is now: a. no dispute as to capacity; b. no dispute as to best interests; and c. an independent external second opinion supports that undisputed position the Trust has decided that it is no longer necessary to pursue its application, and has not identified any other reason why the proceedings should continue.”
[27]Initially the Trust sought determination of that application on the papers. That was opposed by the Official Solicitor. I directed an urgent directions hearing on 19 June 2026. I made directions that enabled CG to speak to me if she wished to on the first day of the hearing and on the second day the court would hear submissions on the Trust’s application.[28]In the event CG did not want to speak to me on 22 June 2026. I heard submissions from all the parties on 23 June 2026.[29]Following the hearing the parties were able to liaise and agree a list of factors that a Trust should take into account when considering whether an application is required, or not. Those factors are set out at paragraphs [67] to [68] below.

Legal framework

[30]The power to detain a patient under the MHA is contained (in the main) in sections 2 and 3. Section 3 provides:(1) A patient may be admitted to a hospital and detained there for the period allowed by the following provisions of this Act in pursuance of an application (in this Act referred to as “an application for admission for treatment”) made in accordance with this section.(2) An application for admission for treatment may be made in respect of a patient on the grounds that— (a)he is suffering from mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital; and …………… (c)it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment and it cannot be provided unless he is detained under this section; and (d)appropriate medical treatment is available for him.(3) An application for admission for treatment shall be founded on the written recommendations in the prescribed form of two registered medical practitioners, including in each case a statement that in the opinion of the practitioner the conditions set out in subsection (2) above are complied with; and each such recommendation shall include— (a) such particulars as may be prescribed of the grounds for that opinion so far as it relates to the conditions set out in paragraphs (a) and (d) of that subsection; and (b) a statement of the reasons for that opinion so far as it relates to the conditions set out in paragraph (c) of that subsection, specifying whether other methods of dealing with the patient are available and, if so, why they are not appropriate.[31]The application for admission of the patient is made by an approved mental health professional (AMHP). They are employed by the relevant local authority and are independent from the Trust’s detaining the patient. The AMHP’s powers and obligations are set out in ss 11 and 13 MHA.[32]Section 63 MHA governs an approved clinician’s power to treat a detained patient without their consent. It states 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.” direction of the approved clinician in charge of the treatment.”
[33]This provision needs to be read alongside s 145 MHA which states 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.” specialist mental health habilitation, rehabilitation and care (but see also subsection or prevent a worsening of, the disorder or one or more of its symptoms or manifestations.”

or prevent a worsening of, the disorder or one or more of its symptoms or

[34]The extent to whether and when the Court of Protection can and/or should exercise its jurisdiction has been the subject of a number of cases.[35]In Nottinghamshire Healthcare NHS Trust v RC [2014] EWCOP 1317 Mostyn J was considering a situation where RC was a patient who was detained under the MHA and was deemed to have capacity. The Trust in that case sought a declaration in the Court of Protection with respect to the advance decision made by RC. A further declaration was sought ‘Pursuant to the inherent jurisdiction of the High Court a declaration that a decision already taken (at least in principle) by the clinician in charge of RC’s treatment (Dr S) not to impose a blood transfusions on him (should one be needed is lawful’.[36]In his judgment Mostyn J stated at [16] “If a self-destructive course is being pursued by an incapacitated person (who has not made a valid advance decision) then pursuant to Court of Protection Practice Direction 9E life saving measures will likely amount to "serious medical treatment" requiring the issue to be determined by the Court of Protection. Plainly, in any case where the protected party contests a decision to impose treatment on him he is entitled to a hearing in the Court of Protection to determine the issue. The reports of cases in the Court of Protection are full of examples where life-saving treatment has been ordered in the face of trenchant opposition from the incapacitated person. A striking example is Re E (Medical treatment: Anorexia)[2012] EWHC 1639 (COP)where a 32-year-old woman suffering from extremely severe anorexia nervosa saw her life as pointless and wished to be allowed to make her own choices, realising that refusal to eat must lead to her death. All of the parties supported with different degrees of strength the view that it would not be in her interests to force-feed her. Nonetheless Jackson J held that the woman did not have the mental capacity to make the decision about treatment by forcible feeding and that the court must take the decision that was in her best interests. He ordered that it was in her best interests to be fed and to live.”[37]Later in the judgment stating:
“[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.”
[38]He continued at [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.”[39]NHS Trust v X [2014] EWCOP 35 concerned a young woman who suffered from anorexia. She was not detained under the MHA, but had been previously: [1]; [13]; [20]. The Trust made an application in the Court of Protections and contended that X lacked capacity to make a decision as to whether it would be in her best interests to receive treatment for her anorexia: [6]. It made an application for declarations (recorded at [5]) that:
“(i) It is not in Ms X's best interests to be subject to further compulsory detention and treatment of her anorexia nervosa, whether under the Mental Health Act 1983 or otherwise, notwithstanding that such treatment may prolong her life. (ii) It is in her best interests, and shall be lawful, for her treating clinicians not to provide Ms X with nutrition and hydration with which she does not comply.”
Cobb J (as he then was) granted the relief sought by the Trust in the Court of Protection [60].[40]Cheshire & Wirral Partnership NHSFT v Z [2016] EWCOP 56 concerned a 46 year old woman who suffered from anorexia. She was detained under s.3 of the MHA. The Trust made an application in the Court of Protection and contended that she lacked relevant capacity. It contemplated three options for her care:(i) to continue treatment under s.3 of the MHA, which would involve detention in hospital and NG feeding under restraint [6];(ii) to continue feeding under s.3 of the MHA, involving detention in hospital and NG feeding under chemical sedation; and(iii) that Z should be discharged from the framework of the MHA and treated only on a voluntary basis [10]. Hayden J said at [20]:
“[20] By way of completeness I should say that Ms Roper, on behalf of the Official Solicitor, raised a point in closing submissions as to the jurisdictional reach of the Court of Protection in proceedings under the MCA 2005. She reminded me that s.28 MCA provides as follows: ... [21] This section effectively prohibits the making of a declaration concerning coercive treatment where it falls within Part IV of the Mental Health Act 1983. In the way that this order has now been drafted I do not need to determine the point because in approving the third option, I recognise Dr Cahill will now discharge Z from detention under the Mental Health Act to her parents home. Accordingly, the declarations and orders I make are pursuant to the Mental Capacity Act 2005.That said, I consider that given this application is heard in the Court of Protection, sitting in the High Court, I would have had the scope to make the declarations under the ... Inherent Jurisdiction and so the debate seems to me to be arid.”
[41]Leeds & York Partnership NHSFT v FF [2025] EWCOP 26 (T3) concerned a young woman who suffered from anorexia. She was detained under s.3 of the MHA. The Trust contended that she lacked relevant capacity: [17]. It contemplated three options for her care:(i) enforced NG feeding against her will;(ii) remain on a s.3 and continue the current treatment and cycles of admissions; (ii) apply to the court to withdraw enforced treatment under the MHA: [16]. FF was being provided with (ii), and the Trust was submitting that(iii) was in FF’s best interests: [17]. The application was made in the Court of Protection.[42]McKendrick J made the following declarations:a. Pursuant to s.15 of the MCA, that “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.”b. Pursuant to s.19(2)(b) of the Senior Courts Act 1981Having 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 force or threat of force under the MHA (whether by use of restraint or sedation)....”.[43]In terms of the jurisdictional issue with respect to the second declaration, McKendrick J stated:
“[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. 47. [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.”
[44]Since the hearing in this case there have been two further reported decisions. In both of these cases the patient was detained under s3 MHA.[45]In Cumbria, Northumberland, Tyne and Wear NHS Foundation Trust & Anor v QF [2026] EWHC 1621 (Fam) P (who had a diagnosis of Complex Post Traumatic Stress Disorder) was detained under s3 of the MHA. The relevant NHS Trusts sought declarations in respect of blood transfusions which were agreed between all parties. There was no dispute that the treatment fell within the s63 MHA definition. It was common ground that no application could be made to the Court of Protection. I stated at [67]:
“The effect of s28 MCA 2005 prevents an application in the circumstances of this case being made to the Court of Protection, as it is a medical treatment decision under Part IV MHA.”
[46]The most recent reported decision related to this issue is Re Patricia [2026] EWCOP 29 where Peel J considered the issue of the jurisdiction of the Court of Protection in circumstances where Patricia, who suffered from anorexia, had made an application seeking declarations from the Court of Protection. She was detained under s3 MHA. Patricia made an application in the Court of Protection in which she sought:
“a. An order that Patricia has capacity to decide whether to accept calories by way of forcible feeding or orally. b. It is not in her best interests, and is contrary to Article 3 ECHR for her to be subject to further forcible feeding. c. It is a breach of her Article 3 and Article 8 rights for Cygnet Hospital….to have refused to obtain an independent second opinion in respect of the use of forced feeding”
[47]The application was listed before Peel J to determine whether the Court of Protection had jurisdiction to make the orders sought. By the stage of that hearing it was agreed Patricia did not to have capacity to conduct the proceedings.[48]Peel J determined that the Court of Protection lacked jurisdiction concluding the situation was covered by s28 MCA stating at [39 (viii)] “Nowhere in the MHA 1983, nor the MCA 2005, is it stated in terms that the Court of Protection retains jurisdiction to make best interest decisions which take precedence over Part 4 of the MCA 1983’.[49]Patricia’s current position was summarised by Peel J as follows at [10]:
“In September 2025, Patricia was admitted to the Specialist Eating Disorder Unit at the Cygnet Hospital under s.3 of the MHA 1983, and she remains a patient there on the same basis. The basis of the detention is that her anorexia nervosa is of a nature and degree that makes it appropriate for her to receive medical treatment in hospital, it is necessary for her health and safety that she should receive that treatment, and it cannot be provided unless she is detained. She sought discharge from detention under the MHA 1983 through the First Tier Tribunal but this was refused on 18 March 2026. Until recently, her treatment included a meal plan mainly consisting of nutrition supplement drinks four to five times a day, and in the event she could not comply with the full required calorie intake, forced NGT feeds were administered. She has round the clock supervision and under s17of the MHA 1983, leave is only permitted within the hospital grounds. The frequency of forcible feeding has increased over time, culminating in the decision to move from 1 July 2026 to feeding entirely by NGT, with no oral intake.”
As Peel J summarised the core dispute was between Cygnet, which sought to continue forcible feeding, and Patricia, who wished not to be subject to forced feeding.[50]Peel J summarised the issues as follows at [15]:
“ i) Does Patricia have capacity to make feeding treatment decisions? If so, the Court of Protection proceedings fall away. ii) If not, does the Court of Protection have jurisdiction to make best interests decisions about the medical treatment currently being provided, given the combined provisions of (i) s28 of the MCA 2005 and (ii) s63 and s145(4) of the MHA 1983. I think in fact this is perhaps better framed as whether the Court of Protection has power to make such decisions rather than jurisdiction, although it comes to the same thing in practice. Counsel tell me that, as far as they are aware, this point has not been fully considered in a reported authority and is therefore a novel one.”
Court of Protection proceedings fall away. ii) If not, does the Court of Protection have jurisdiction to make best interests decisions about the medical treatment currently being provided, given the combined provisions of (i) s28 of the MCA 2005 and (ii) s63 and s145(4) of the MHA 1983. I think in fact this is perhaps better framed as whether the Court of Protection has power to make such decisions rather than jurisdiction, although it comes to the same thing in practice. Counsel tell me that, as far as they are aware, this point has not been fully considered in a reported authority and is therefore a novel one.”[51]Peel J concluded the answer to i) was that he was satisfied under s48 MCA that there was reason to believe she lacked capacity. In relation to ii) he concluded the Court of Protection lacked jurisdiction in the circumstances of that case, setting out his detailed rationale at [39].

Submissions

[52]On behalf of the Trust, Mr Berry K.C. emphasises that in this difficult case no party has criticised the Trust in bringing this application or making the application to withdraw. He submits RC can be distinguished from the present case as it concerned a patient who was detained under the MHA. Mr Berry observes that the fact that a patient is detained under the MHA is a factor that is likely to weigh in favour of an application being made R(JB) v Haddock [2006] EWCA Civ 961 per Auld LJ at [13] where he refers to the need for a full merits review where a person detained under the MHA challenges a decision to impose medical treatment on them without their consent.[53]Mr Berry submits that the Court of Protection has jurisdiction in respect of this application as the Trust made a best interest decision about a person who lacks capacity (see Townsend v Epsom and St Helier University Hospitals NHSFT [2025] EWCA Civ 1003 at [69]). The Court of Protection has the power pursuant to s15(1)(c) MCA to make declarations as to the lawfulness of any act done or proposed to be done in relation to a person lacking capacity. He submits the fact that the treatment in question would (if it was considered to be in her best interests) be given following an admission under s3 MHA does not oust this court’s jurisdiction.[54]As Mr Berry outlines in his submissions that where the patient is MHA detained and has capacity there is no role for the Court of Protection. Where the patient is not MHA detained and lacks capacity any application should be made in the Court of Protection. With respect to detention under the MHA Parliament has provided for a statutory code in respect of the detention, with decisions being challengeable in the Mental Health Tribunal (and potentially by way of judicial review), but not in the Court of Protection[55]On behalf of the Official Solicitor Ms Scott submits that by making this application the Trust sought review of its (public law) decision not to provide treatment under the MHA, not a review of its best interest decision. As a result the application should have been made for a declaration under the Inherent Jurisdiction.[56]Ms Scott submits this follows the Supreme Court decision in N v ACCG [2017] UKSC 22 at [27] where it stated the Court of Protection’s powers are limited to decisions CG could make for herself and that does not include the decision whether to be detained under s3 MHA or receive medical treatment under s63 MHA. In addition, Ms Scott submits that if an application is brought by a Trust in the Court of Protection to essentially review its own decision not to detain or treat a patient under the MHA the Court of Protection cannot give relief to any party seeking a declaration that treatment should be given, only to the party saying it should not. Ms Scott distinguishes Epsom on the basis that meeting the criteria for detention under the MHA was not an issue in that case. Ms Scott submits that in the particular circumstances of this case to the extent that any application is required in this case it should have been brought in the High Court, following FF.[57]On behalf of CLG Ms Butler Cole KC agrees CG lacks capacity and with the decision that further forced-feeding is not in CG’s best interests. Ms Butler-Cole makes the following points. First, whilst the decision in this case is a serious one, it is not a finely balanced decision. The clinicians, the independent second opinion doctor and CG’s family all agree.[58]Ms Butler-Cole submits that if an application to the court is required it should be made to the Court of Protection in a case where P lacks capacity to make the relevant medical treatment decision or capacity is disputed. She submits s15 MCA permits the Court of Protection to make a declaration of lawfulness and there is no gap requiring the inherent jurisdiction to be deployed. This, she submits, is supported by Epsom at [68] and she distinguishes RC as in that case the patient did not lack capacity. She submits “A different route for cases involving patients without capacity and those whose capacity is not doubted in respect of s63 MHA decisions or non-treatment best interests decision is no different to the present reality, where the care arrangements of those who may or do lack capacity are subject to scrutiny by the CoP but people with no issues as to their capacity have to rely on other remedies such as an application for judicial review’. As regards the Part 8 claim route outlined by McKendrick J in FF she observes that under Civil Procedure Rule 8(2) such a claim is appropriate to decide ‘a question which is unlikely to involve a substantial dispute of fact’. Ms Butler-Cole submits that may not be an appropriate procedure in circumstances where there are disputes of fact that need determining and those facts are a central focus of the application. Finally, she submits the Court of Protection has a well established process regarding the role of the Official Solicitor, provision of her costs and access to representation for family members.

Discussion and decision

[59]There is no issue between the parties that the application by the Trust to withdraw this application should be granted. In considering that application I need to consider whether granting the application is in CG’s best interests. I am satisfied it is. There is no justiciable issue between the parties and no other reason for the proceedings to continue.[60]I fully recognise the court has not had the benefit of full legal argument in the context of contested legal argument due to the agreed position of the parties regarding the withdrawal application.[61]Mr Berry observes this has been a particularly difficult case for the Trust to manage bearing in mind the gravity of the decisions and CG’s circumstances. No party criticises the Trust for bringing the application, or for making the subsequent application to withdraw however no party has sought to suggest that this was a finely balanced decision.[62]The decisions in Cumbria and Patricia were handed down after the oral hearing in this case and the parties were given the opportunity to make any further submissions. Both those cases concerned patients who were detained under the MHA and the issue as to which court proceedings should be issued in. The oral submissions in this case have been focussed on whether proceedings need to be issued at all. In Cumbriaat [70 (3)] and [73] I outlined matters a Trust may wish to consider before deciding whether to make an application and in Patricia Peel J set out matters relating to that at [42]-[43].[63]I agree with Peel J in Patricia at [23] that it is right to repeat what Lieven J said in Re JK [2019] EWHC 67 (Fam) at [66] “The MHA gives the power to decide whether to compulsorily treat a patient to the responsible clinician and not to the Court. This is a fundamentally different scheme to that in the MCA where many decisions are given by statute to the court. The difference makes sense because the MHA is a statutory scheme for, inter alia, detention and compulsory treatment in the public interest, where the responsible clinician has a specific role in the statutory scheme. There is no statutory process in the MHA to question the decision of the clinician. However, if the clinician decides to impose treatment, then the individual can judicially review that decision.”[64]I also agree with the observations of Ms Scott on behalf of the Official Solicitor that it would have been of benefit to CG and her legal representatives to have been able to explain to her from the start of the proceedings details of the relief being sought, the powers of the court to grant that relief and the potential consequences for CG and the course the litigation was going to take. The precise declarations being sought should, in my judgment, always be set out in the application.[65]In Patricia the issue of the court’s jurisdiction was raised at an early stage and determined within a week after proceedings had been commenced on 30 June 2026. In that case the other parties raised the issue of jurisdiction at the first hearing before me on 3 July 2026 and the hearing before Peel J took place on 8 July 2026. Where possible, any issue as to jurisdiction should be raised with the other parties and the court at the earliest opportunity so that directions can be made for an early determination of that issue to avoid the disadvantages to P of continuing uncertainty caused by ongoing proceedings.[66]In the joint document submitted by the parties after the conclusion of this hearing they set out the following list of factors that NHS Trusts should consider before deciding whether to make an application to the Court in respect of the proposed treatment plan for a patient with anorexia who is considered to lack capacity to make decisions about their medical treatment, where the decision not to provide treatment (including by way of forcible feeding) may be life threatening.[67]In relation to patients who are not detained under the MHA (irrespective of whether the patient meets or would probably meet the criteria for detention under that Act) they suggest the relevant factors in such cases should include the following: (1). Is there any dispute that the patient lacks relevant capacity? (2). Is there any material dispute among the clinicians as to the treatment plan and what treatment is in the patient’s best interests? (3). Does the patient object to the treatment plan? (4). Is there a dispute as to the treatment plan and what treatment is in the patient’s best interests, or as to the need to obtain further medical opinions before a decision is reached:(a) from those with an interest in the patient’s welfare; and or(b) from any Independent Mental Capacity Advocate appointed in respect of the patient? (5). Is there any identified medical professional who proposes to offer alternative treatment to that which is in the treatment plan? (6). Has the NHS Trust obtained an independent external second opinion from an appropriately qualified and experienced clinician (where practicable)? (7). Is there any material dispute from the author of the second opinion as to the treatment plan and what treatment is in the patient’s best interests? (8). Has the NHS taken all reasonable and practicable steps short of making an application to the Court to resolve any material dispute? (9). Is the way forward finely balanced? (10). What impact would the NHS Trust bringing / the patient participating in legal proceedings have on the patient’s welfare?[68]The parties agree that, if the answer to any of (1) – (5) or (7) – (9) is “yes”, that would suggest that the NHS Trust would be ‘well advised’ to make an application to the Court, but if the answer to all of (1) – (8) is “no” then the NHS Trust should consider very carefully whether there is any need to make an application.[69]In considering the matters listed above it is important to remember that each case is fact specific and any action will need to be considered in the light of the particular facts of that case. However, I do consider the non-exhaustive list of factors set out above provides a helpful framework to inform decision making as to whether an application needs to be made to the court, or not.[70]In addition to the decision whether an application needs to be made, or not, there must be careful consideration given as to whether any application should be made in the Court of Protection or the High Court, involving the Inherent Jurisdiction, or both.[71]Any application issued in these circumstances needs to very clearly set out why that particular procedural route has been taken, what declarations are being sought and, if required, address the applicability, or not, of ss16A, 28 and Schedule 1A MCA.[72]In their document submitted after the hearing the parties invited me to give guidance on ‘what ‘finely balanced’ means where there is unanimity as to the treatment plan’. As this issue was not addressed in the written or oral submissions of the parties I do not consider it would be appropriate to accept this invitation. If required, it can be considered in a case where that is an issue between the parties.[73]All I can do is set out what is stated in Epsom at [61] - [62] and [65] - [69] and draw attention to the reference in that judgment to the Royal College of Physicians and British Medical Association guidance regarding clinically assisted nutrition and hydration (CANH) for adults who lack capacity to consent. This guidance suggests that a decision may be considered finely balanced if there remains ‘on going uncertainty’. Baker LJ recognised in [67] that such guidance could have wider application to other life-sustaining treatment other than CANH. As Ms Butler-Cole astutely observed in her written submissions ‘Sensitive decisions with serious implications for P are not necessarily finely balanced and Trusts making applications such as the present need to focus on whether the decision is truly arguable either way, or whether they are in reality seeking a court declaration for defensive purposes”.[74]Permission has been given to both parties in Epsom toappeal to the Supreme Court.