More cases of longstanding severe eating disorders (LSED) are coming before the Court of Protection (CoP) in England and Wales than ever before. There were very few before 2012, 5 judgments from 2012 to 2017 Reference Cave and Tan1 and 17 relevant cases from 2020 to date (see Table 1).
Table 1 Brief description of published CoP cases post 2020 concerning people with LSED a
CoP, Court of Protection; MCA, Mental Capacity Act 2005; MHA, Mental Health Act 1983; ICU, intensive care unit.
a. Longstanding severe eating disorders (LSED) are also referred to in the literature as severe and enduring eating disorders or severe and enduring anorexia nervosa; terminology varies across sources.
b. Case 4 does not involve a ‘longstanding’ eating disorder and was heard in the Family Division of the High Court rather than the CoP.
c. In a subsequent unpublished case, Hayden J approved the use of esketamine for CC.
A modified version of this table appears in a related article: Cave E, Tan J. Evolving judicial approaches to longstanding anorexia nervosa. Clin Ethics 2025; 20: 222–32.
Cases often reach the CoP when prolonged, burdensome and non-consensual treatment under the Mental Health Act 1983 (MHA) has failed to produce meaningful improvement, or treating clinicians experience clinical unease about the justification and appropriateness of continued intervention. Although clinicians and NHS trusts are not required to do so, some are choosing instead to address the dilemma that arises by reference to the patient’s capacity and best interests, and placing the issue before the CoP, governed by the Mental Capacity Act 2005 (MCA).
The rise in CoP oversight coincides with the international increase in incidence and severity of eating disorders since 2020. Reference Reas, Rø and Rø2 Increasing recourse to the CoP also reflects intense clinical and ethical controversy over how to treat LSED. Reference Robison, Udupa, Abber, Duffy, Riddle and Manwaring3,Reference Bryson, Douglas and Schmidt4 When should treatment be escalated? When, in the absence of a wide range of evidence-based treatment options, should unproven treatments be attempted as a last resort? When might treatment be considered futile and what implication should that have? And how should the patient’s and carers’ views be considered? Where clinicians are uncertain about the patient’s capacity and best interests, or if these are disputed, reliance falls on the CoP.
The resulting decisions impact a range of clinicians, beyond psychiatrists and specialists. Where a CoP judge, based on the evidence put before them, considers that it is not in the patient’s best interests to continue psychiatric in-patient treatment, there is a consequent de-escalation of treatment. This may mean the withdrawal of recovery-focused treatment, with supportive or palliative care becoming the central focus. The patient may no longer be subject to compulsory treatment and may be discharged to eating disorder or general community services or primary care, with acceptance of a high risk of death. If eating disorder specialists step back from active treatment or withdraw intensive support, patients and carers may feel abandoned and clinicians unsupported. Exploring alternatives can spark disagreement among clinicians, families, patients and wider society, reflecting the complexity, emotional burden, common dynamics and childhood narratives in eating disorders. All of these options require the agreement of, and collaboration with, other services.
By contrast, when continuing recovery-focused treatment or refeeding is judged to be in the patient’s best interests, treatment may be escalated – for example, through more intensive community support, admission to a specialist in-patient unit, nasogastric or nasojejunal feeding with or without restraint or, in research or specialist settings, neuromodulation or deep brain stimulation or other novel treatments (Esketamine is considered in Table 1, case 12). Reference Himmerich, Keeler, Tchanturia and Treasure5 In rare instances, escalation may extend to intensive care for refeeding under general anaesthesia (Table 1, cases 4 and 13). Escalation can heighten conflict not only among patients, families and clinicians, but also among clinicians both within and across specialties, particularly among those requesting and facilitating restrictive practice. Despite debate about how far such escalation should go, in practice interventions are often repeated regardless of poor response. There are implications for scarce healthcare resources, with transfers out of eating disorder units shifting the burden to intensivists or other specialists less familiar with these conditions and the psychopathology underpinning their presentation. 6
Severe eating disorders, in particular anorexia nervosa, have a distinctive characteristic of being ‘ego-syntonic’, meaning that patients may identify with or value their own disorder or feel it is part of themselves, and resist attempts to treat them. There is limited consensus among clinicians and within research regarding the effectiveness and appropriate use of compulsion and coercion in treating LSED. Reference Touyz, Aouad, Carney, Ong, Yager and Newton7 Budgetary constraints and staffing shortages also contribute to increasing strain within the NHS. Patricia’s case (Table 1, cases 8–10, 16–17) illustrates how legal decisions on compulsion can deeply impact clinical care and may need revisiting as patient autonomy and illness realities evolve. Benefits from compulsion probably depend on multiple, interacting, poorly understood factors. Reference Touyz, Aouad, Carney, Ong, Yager and Newton7 Coercion and restrictive practices – sometimes, it seems, due to lack of early intervention, timely psychological interventions or viable alternatives – can lock patients and clinicians in escalating conflict and coercion. Highly publicised failures of care and critical reports 6 may also have increased risk aversion among clinicians who treat eating disorders. Clinicians’ fear of coroner investigations following a patient’s death may further encourage defensive use of the MHA and restrictions on leave, constraining positive risk-taking and collaborative care.
Although CoP judgments are fact-specific and must be read as such, some very broad principles can be derived from them.
Incapacity should not be assumed in anorexia nervosa. The MCA operates an assumption of capacity, and the burden of proof is on the clinicians seeking to establish incapacity, having taken all reasonable steps to help the person to make a decision. That said, neither should a decision be found to be capacitous simply because family members, clinicians and judges can understand and empathise with it given the distress involved and articulate expression. To date there has been no judgment in which a patient with LSED (anorexia nervosa) has been found to have capacity to refuse nutrition. However, in the case of Q (Table 1, case 5), a patient with LSED (bulimia nervosa) was found to have capacity to refuse treatment for hypokalaemia, notwithstanding that the decision was considered ‘unwise’ (a term used in the MCA) and likely to hasten her death.
The decision whether to continue life-sustaining but highly restrictive, distressing and burdensome treatment for a person who lacks capacity has to be taken by reference to the individual patient, not assumptions based on age, length of treatment or the severity or duration of illness.
There is lack of consensus and heated debate in the field of eating disorder on concepts of ‘terminal anorexia’ and whether and when treatment is ever ‘futile’. This is playing out against the backdrop of a societal and legislative debate about assisted dying, which muddies the waters still further in terms of whether any such patients might come under any new legislation enabling them to request death. Reference Malhi8 Even if future legislation does not extend such a right to people with severe mental disorders, it raises the ethical question of whether the compassionate response to a sense of a futility might be to allow patients to die. Malhi has argued that, in mental illness, diagnostic clarity is harder to achieve than with many physical diseases, and conditions can overlap with and impair decision-making, making prognosis and treatment response uncertain. This uncertainty often leads to suspicion that a wish to die is merely a symptom of the illness, rather than a well-considered decision. Reference Malhi8 While on the one hand mental illness can cast doubt on the validity of the patient’s perception of futility, on the other hand their views require careful examination and should not automatically be dismissed. Reference Cave and Tan1
The CoP rulings discussed do not resolve the question of whether LSED can be terminal, nor what futility means in this context, but they do make clear that treatment that is contrary to an incapacitated person’s best interests is not justified. In some cases, where prolonged compulsory treatment has been both ineffective and burdensome and the patient remains at significant risk of death, there is hope that removing the threat of compulsion and restoring control to the patient may lead to improvement. If that hope proves unfounded following de-escalation of treatment, and no viable alternatives exist, the likely outcome is the patient’s death. Patricia’s case shows the flexibility then needed when matters take an unanticipated turn.
Ethical issues arising from the cases
Two ethical conundrums arise.
The first is that, even when the patients in question are found to lack capacity to refuse treatment, their wishes are discussed, including by some judges, in terms of their autonomy. What is striking in these cases, which echo the experiences of family members and clinicians treating eating disorders, is that even when extremely unwell and malnourished, people with LSED can clearly and consistently articulate objections. Therefore, unlike other best interests’ scenarios where a patient is unconscious or otherwise unable to express a clear view, it feels morally more difficult to decide to override these clearly expressed objections and resistance. This is especially challenging when the illness began in early adolescence or is longstanding, shaping identity so that any sense of themselves as distinct from the eating disorder is unclear or distorted. Reference Tan, Hope and Stewart9 In such cases, neither the person nor those around them may recall a past self prior to the eating disorder with settled values and wishes – a common reference point when incapacity arises. Judges, families and clinicians are then left with the question of whether these wishes are authentic, ‘the anorexia talking’ or some mixture of both. Reference Tan, Hope and Stewart9
So where can the autonomy of the person be found? The difficulties surrounding conflicting authenticity and autonomy are hinted at in Patricia’s case (Table 1, case 17). She described that she did not wish to die and how she longed for a life free from the constraints of her eating disorder, yet she refused treatment, aware that she might die, although at times seeming not to believe it. This ambivalence is familiar to clinicians who treat eating disorders, and it may be more helpful to describe Patricia’s ‘wishes, values and desires’ rather than assuming they reflect autonomous and authentic wishes. De-escalation can still at times be hoped to promote autonomy by reducing conflict and the ‘anorexic self’s’ need to battle clinicians, a hope stated by the judge considering Patricia’s 2023 case (Table 1, case 8). However, as Patricia’s case demonstrates in 2025 (Table 1, case 17), placing such a weight of decision-making can be an ‘impossible burden’ upon the person.
The second is a tension between judgments removing the threat of compulsion in hope of re-engagement with voluntary treatment and the reality of clinical practice and scarce resources. Such cases raise procedural questions about the interface between the MCA and MHA regimes, as well as substantive concerns about how decisions, often initiated by clinical teams, to cease use of the MHA may subsequently restrict available options and limit the clinical delivery of effective treatment for the patient (Table 1, case 15). In the case of Patricia, who lacked capacity to make decisions about nutrition and hydration, a desire to uphold her autonomy meant that only treatment to which she assented could be provided (Table 1, case 10). This, in turn, meant that Patricia could not engage with bespoke, high-intensity treatment plans – notwithstanding her very clear desire not to die. This inadvertently resulted in her being unable to access effective care because no specialist eating disorder units were willing to accept Patricia until a new treatment option was proposed, and the order apparently preventing compulsory treatment was lifted (Table 1, case 17).
Taken together, the increasing body of case law provides a set of questions for clinicians to ask, a set of tools for discussions to situate questions within the broader mental health landscape, but also a clear set of triggers for when recourse to the court is, or may be, necessary to resolve some of the most difficult dilemmas that are experienced in practice. These complex decisions highlight challenges not only in the realm of LSED, but across all severe mental illnesses, considering ongoing ethical debates around autonomy, futility, assisted dying and the need for nuanced collaborative care approaches to navigate evolving treatment boundaries.
Summary: take-home messages
Author contributions
J.O.A.T., E.C., A.R.K., N.K., A.B., J.G., R.J. and P.R. contributed to the conceptualisation and focus of the article. J.O.A.T. prepared the initial draft, and E.C. developed the second draft. All remaining authors provided substantive comments and revisions throughout the drafting process. All authors have seen and approved the final submitted version of the Editorial.
Funding
This study received no specific grant from any funding agency, commercial or not-for-profit sectors.
Declaration of interest
R.J. is an Economic and Social Research Council-funded PhD Candidate at Durham University Law School; no declaration of interest from the other authors.
What does your proposed article add to previous BJPsych coverage?
This Editorial is the result of joint working among legal experts, clinicians and an expert-by-experience. It builds on previous coverage by providing an updated, in-depth analysis of recent legal decisions on longstanding severe eating disorders such as anorexia nervosa, focusing on evolving judicial reasoning and its implications for clinical practice. It considers potential interaction between relevant principles and potential legislation on assisted dying, and adds original insight into how courts interpret capacity, autonomy and best interests, offering guidance for future psychiatric approaches.
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