Commentary

The details of this case are for gastroenterologists and psychiatrists. The learning points are of general application and although made by an expert in their first case, they reflect mistakes made by some more experienced experts who should know better.

Learning points:

• If it is your first case as an expert witness, be trained and be prepared.

• An assessment carried out in order to offer or provide expert evidence should be recorded.

• Beware criticising healthcare professionals or services especially without evidence.

• Inaccuracy undermines the expert’s credibility.

Case

An application by parents and aunt of "Patricia" now aged 25 who has lived with anorexia nervosa ("AN") since she was aged about 10. Patricia is very ill, she is malnourished, she has not been able to walk unaided for two years, she suffers bed sores and she has osteoporosis.

Patricia also has been diagnosed in the recent past with autism and with pathological demand avoidance ("PDA"). The combination of the PDA and AN means that although she has repeatedly said she wishes to live, she refuses to consume the calories that she requires.

Throughout these proceedings, Patricia has been an in-patient at Norfolk and Norwich University Hospitals NHS Foundation Trust ("the hospital"). Patricia had said she wanted to go to a specialist eating disorder unit (SEDU) but when this case started she was not medically fit enough to go to one because of her low BMI and her lack of medical stability.

The applicants initially relied on the evidence of Dr I, a consultant psychiatrist, who recommended that the court make an order that Patricia be fed under restraint by nasogastric ("NG") tube. His recommendation was that she be fed until her weight was fully restored, a weight of about 50 kilos, which she had never experienced.

As the case continued, no SEDU was prepared to commit to that sort of weight restoration and in the event, as of July 2025, there was only one SEDU available (SEDU 3) which might be able to treat Patricia if orders made in 2023 were lifted and Patricia assessed positively by the SEDU.

Patricia's situation was considered by the Court of Protection in 2023, when it ordered in accordance with Patricia's strongly expressed views that it was in her best interests not to receive NG tube feeding with restraint and not to receive any other medical treatment against her wishes and that Patricia should be given autonomy to make her own decisions about whether she put on weight or not.

Her parents and aunt contended that the order of 2023 should be lifted so that Patricia can have the treatment the clinicians consider she needs, otherwise she was likely to die soon.

Patricia vociferously opposed the applications made by her parents and aunt. She wants to live but what she does not want to do, or is unable to do, is to eat to a level which is sufficient for her to stay alive.

On 10^th March 2025 the matter was adjourned to 13^th March for the hospital and integrated care board (ICB) to put together a plan which would enable NG feeding with restraint to be provided by a specialist agency, if the court endorsed a lifting of the earlier orders made by the Court of Protection in 2023. The agency consulted said restraining Patricia would put her too much at risk and were not prepared to offer it.

On 13^th March 2025 the court heard evidence that day from three of her treating specialists, Dr PI, a consultant gastroenterologist based at the hospital, Dr W a psychiatrist based at SEDU 1 and Dr B, who is a clinical psychologist and the director of SEDU 1. Dr I gave evidence on 17^th March 2025.

By 18^th March 2025, the hospital was clear that it would not accommodate force feeding by NG tube, unless there was a SEDU committed to providing the follow-on care which had to involve force feeding if necessary.

On 19^th March 2025, counsel for the ICB said she had no agency that was able to restrain Patricia, so that it was not an available option for the Court to choose in her best interests. The ICB was going to make enquiries with another company which specialised in restraint of particularly vulnerable patients.

On 7^th April 2025, by which time Patricia’s weight had come up to 21.5kg, the court heard from Dr PI again and from Professor Paul Robinson, who had been the independent expert who gave evidence in the earlier proceedings in 2023. On 8^th April 2025 the court heard from Professor S who had treated Patricia in a SEDU in the North of the UK for a lengthy period of time. Finally the court heard from both of Patricia's parents.

The case was adjourned to 20^th May 2025 to obtain written evidence from another specialist in restraint. That expert was the second one to say it would be too risky to Patricia to try and restrain her to enable NG feeding to take place and they were not prepared to do it at her current weight.

By 20^th May 2025, SEDU 3, said they might admit Patricia for treatment when they had an available bed if the 2023 orders was lifted. Seven weeks on, no bed was available at SEDU 3 and it was going to be weeks or months before a bed might become available.

Throughout the proceedings, Patricia sent regular emails to the judge’s clerk setting out her wishes. She had a consistent position that she did not want to be force fed. She said she was terrified by the thought and said she would fight any attempt to do this. She had been force fed before which she described as torture. She is autistic and suffered from PTSD and PDA and the idea that there was a risk of her being force-fed was causing her to bang her head and to have panic attacks.

There was one SEDU which she did want to go to, SEDU 1 which was local. It is an independent SEDU which does not carry out NG feeding under restraint.

Issues

In the 20^th June 2025 submissions, the parties put forward three suggestions for the way forward. The applicant parents and aunt said that the court should make no decision about whether in principle it could re-visit the order and if so, whether the court should in fact lift it until Patricia had been assessed for and then been allocated a bed in SEDU 3. The hospital and CPFT said the court should make decisions about both forthwith. The Official Solicitor and ICB contended that the court should decide the first issue only (i.e. whether to revisit the order of 2023).

In the event, the court made a case management decision to deliver this judgment and not to await the availability of a bed at a SEDU.

The first issue was whether in principle the court could re-visit the 2023 order and secondly, if so, whether the court should discharge the declarations made in 2023. This would allow Patricia to receive whatever treatment the clinicians treating her consider she needs, whether that involves force feeding or not. The lifting of the order would bring her position into line with nearly every other anorexic patient in the country, as it would remove any perceived barrier to Patricia being detained and treated compulsorily under the Mental Health Act 1983 (MHA).

It was not disputed by the parties that there was reason to believe that Patricia does not have capacity to conduct the litigation herself and to make decisions as to her medical treatment for AN. The court heard unchallenged evidence that the brain shrinks as the AN takes hold. Patricia is at a very low weight indeed with a BMI of about nine: the court heard evidence that this is likely amongst the lowest in the country. Her cognition is greatly affected by this disease. The court found that she lacked capacity to conduct litigation or make decisions in relation to her treatment for AN.

A brief account of Patricia's treatment.

Over the years, Patricia had been admitted either voluntarily or compulsorily to numerous SEDUs, some when she had been detained under the MHA. By 2023 she had had 27 stays as an in-patient in SEDUs and she had also had NG feeding under restraint on six occasions and over a few days in May 2022 with her consent. She had been at home for only eight months since her diagnosis 13 years before.

Expert evidence

The applicants relied on evidence given by Dr I, a consultant psychiatrist, who had met Patricia informally three times. It is fair to say that without his evidence, the proceedings would probably not have continued past the first or second hearings. The court noted, however, that before his first statement he had not read Patricia's medical records nor spoken to those treating her yet in this statement he had criticised the hospital and other units for the way they had treated Patricia in the past. This was based on conversations with the parents and Patricia. The criticism in his first and indeed second statement was undeserved.

Dr I told the court he had never been an expert witness or given evidence before. He had not read the 2023 court judgments and the court considered he had not reflected sufficiently on the effect the 2023 orders had had on Patricia's treatment. He was correct, however, when he said that the 2023 orders allowed Patricia to decide what to accept or refuse when she was being treated.

The position initially taken by the applicants, relying on the evidence of Dr I, was that forced NG feeding should take place until Patricia was at full weight, first at the hospital and then at a SEDU. A point made by Dr I in his evidence was that no attempt had been made before to feed Patricia to full weight. This turned out to be inaccurate.

At various hearings the court heard evidence from witnesses who by contradistinction to Dr I had had been working with Patricia, in some cases, for many years. Dr PI gave evidence twice in these proceedings, she is Patricia's named consultant and is a consultant gastroenterologist at the hospital. She was a quietly impressive witness whose hospital and the treatment it had given Patricia had come under attack unfairly, in my judgment. Even before Professor Robinson described Dr PI as very skilled, caring and very knowledgeable, it was clear to the court that she was.

Dr W the psychiatrist at SEDU 1 gave evidence. He had worked with Patricia on and off for about ten years. Dr B is a psychologist and the clinical director of SEDU 1 who works with Patricia when she allows him to. The court also had written evidence from Dr PE, a consultant psychiatrist with CPFT.

Full weight restoration?

The applicants' original position based on Dr I's evidence was that they should be aiming at full weight restoration. In his unfortunate first statement, he criticised Patricia's care. One sentence in particular jarred. He said she had been "let down by the medical system through a catalogue of errors, omissions and outright failures". He said that her treatment was not adapted to meet her individualised needs. These and other sweeping statements were made without having seen any of her medical records, having not spoken to anyone treating Patricia, let alone reading the 2023 court judgments and having only heard from Patricia and her desperate parents. It was inevitable that he received a one-sided inaccurate view of her treatment over many years. A rather more questioning approach might have helped the applicants.

Although critical of Dr I's approach, the court accepted his evidence about what was influencing Patricia. He had met Patricia only three times and had not got any records of a formal assessment he had made but what he said was what others had said.

In Dr I's third statement, he had considered whether treatment in Patricia's case was "futile, overly burdensome to the patient or where there is no prospect of recovery" (Airedale NHS Trust v Bland [1993] AC 789. He questioned whether the anorexia was terminal. He said the effects of extreme malnutrition were reversible.

Dr I's evidence came down to the necessity for NG feeding as Patricia was not likely to increase her calorie intake voluntarily, to prevent her death. Her mental state and cognition were dependent on nutritional status and weight. There was a shift in mind set as nutritional values improved.

The ceilings of treatment he had suggested were explored by Ms Scott on behalf of the ICB. Dr I said that a symptom of Patricia's AN was that she could be expected to fight the force feeding and be distressed and traumatised by what was happening. The degree of her resistance would depend on the medication she was given, the nature of the psychotherapy which should be started as soon as possible to get her to accept treatment and the way the clinicians talked to her.

Dr I said restraint teams were capable of managing these situations. He said the risks to Patricia of force feeding were overstated when compared to the risk of not doing it, which was her death. He said that resistance to treatment could diminish very quickly but this was variable and would be as a result of cognitive changes to the brain. His evidence ran counter to that of those who had tried NG feeding to Patricia with restraint. They said that her resistance continued and in the end, they did not consider it was in her best interests to continue with the restraint.

Dr I recognised the treatment was burdensome in the sense that the eating disorder would compel Patricia to resist treatment but this would reduce if she were to be consistently offered treatment in the way recommended in the literature. He said the heaviest burden was on the team delivering the treatment and on Patricia's family.

Counsel for the ICB asked Dr I about the 2023 evidence given by Professor Robinson that there was more than a 50% chance that the emotional/psychological harm caused to Patricia by NG feeding under restraint would be high. Dr I accepted that forced treatment would be extremely distressing and traumatic and have a psychological impact on Patricia. He said that patients say later they were glad that he held the line when they had been fighting the treatment. They expressed their gratitude retrospectively. The psychological impact of this disease was reversible.

In response to further question about Professor Robinson's evidence in 2023, that force feeding would only give a less than 5% chance of a "significant and durable improvement in her health", Dr I said from research he had done, 70% of patients had had a good outcome. He explained, rather counter-intuitively in the court’s view, that the prospects of recovery did not depend on the severity or length of the illness.

In relation to NG feeding using restraint, Dr S said that SEDU 2 would only do this to save a life. His view was that you could not "opposition battle patients to recovery", whether they were admitted under the MHA or not. If Patricia was force fed, she would find it enormously distressing and she would fight back. Restraint would be very challenging. Staff would need a restraint team and psychiatric oversight.

Looking ahead, he could not see that Patricia would maintain a healthy weight in the medium to long term. What was more likely was her maintaining a BMI of 12 where she would need admission to hospital on a frequent basis and more force feeding. He anticipated a repeating pattern.

Dr S echoed the views of the other specialists who said that force feeding Patricia to a healthy weight was not in her best interests. If they did it to get her to a safer weight, it would save her life but that would leave her in the same position as she had been in before the Court's 2023 orders.

Professor S said that the chances of successfully achieving full weight restoration, were less than 50% but that if Patricia were his patient he would take that chance in consultation with his colleagues. He said the challenges posed by Patricia were not atypical of patients with AN but with her past admissions to many "splendid units", it was even more daunting.

Professor Robinson was called having been instructed as an expert for the Official Solicitor in these proceedings. He had been asked to consider whether relying on Patricia to voluntarily increase her calorie intake would lead to her death. He said that death from malnutrition was inevitable and "could occur at any time". She was now much more at risk of sudden death. He said that the inability to accept that weight gain is essential for improved health can be the basis for detention and treatment under the MHA. He said this approach was taken quite frequently. Significantly he said that it could be successful and patients quite often agree that it was the right thing to do with them. This echoed evidence given by Dr I.

Professor Robinson agreed with Dr I that the backstop of compulsion was needed but that it was very risky and that Patricia would bite and scream. He said he had seen changes in anorexics' thinking and the best chance for Patricia was to go step by step. At some point though, Patricia would need to be on board with recovery. Where he departed from Dr I's view was that he said short admissions and long admissions were equally effective.

Discussion and Decision

The first issue was whether to revisit the orders made by Moor J in 2023. Just over 18 months later, now in July 2025, despite all the efforts made to work consensually with Patricia, she was much more ill than she was in 2023. The hands-off approach, leaving it to Patricia to decide whether to increase her BMI, had not worked. Whereas in October 2023, there was still some hope that Patricia might voluntarily start gaining weight, there was no hope at all in March 2025. Despite this, the court noted Patricia's will to live remained strong.

In looking at whether there had been a change in circumstances, or other new evidence, what struck the court was how wrong it was that a potential life-saving option, open to every other anorexic in the country was not available to Patricia. 18 months on, the orders were preventing Patricia from going into a SEDU. The orders in 2023 had been shown to have failed. Without a change to the orders, there was no doubt that Patricia would die.

The most significant circumstance not covered by the earlier judgments in May and October 2023, was the burden on Patricia of the decisions made then. What the court could not anticipate was how Patricia would react to the decision of the court. As the many witnesses explained it, her thinking is dominated by the AN. Her anorexic cognition has prevented her from understanding the link between living or even just being able to walk and the need to take on calories to give her the strength she needs. It is a complete block in her understanding caused either by AN or by her autism and PDA. She is a highly intelligent young woman yet she fails to accept the link between eating and living. These were circumstances which amounted to factors which were not clearly covered by the orders made by Moor J in 2023.

Having determined that I have the power to revisit Moor J's decision in 2023, the next issue was whether Patricia's best interests required a continuation of the order made in 2023 or whether the evidence supported a change of approach set out in a new order.

The court’s view was that Patricia should have access to the treatment or lack of treatment that any other anorexic patient does. The court should not impose an order which would prevent her from having the treatment which may save her life when she wants to live. Any SEDU which can care for her, needs the flexibility which will be given by the removal of the orders.

The balance of harm versus benefit was nearly equal. On the one hand, if the court lifted the orders, Patricia might "down tools" and might become even more ill than she was already. However, in 2022 she agreed to NG feeding when she had no alternative to that and said it was not as bad as she had anticipated. She now denied ever saying that.

On the positive side, the court had in mind that if it lifted the orders, there was a chance a SEDU would take her, whether it was SEDU 3 or another, and although the past history of such admissions was not positive, she could turn a corner and put on weight. The clinicians were clear that this does happen, when a patient later thanks the clinician for forcing them to gain weight.

The court reminded itself it was not being asked to make an order that she be force fed, but to lift the orders which would then allow SEDUs to decide what is the appropriate treatment.

Having considered the balance of the imminent risk of death versus the harm which would be caused psychologically and emotionally by the lifting of the orders, the balance was in favour of trying to save her life. The removal of the orders would allow the clinicians to work out what is best for Patricia, without the restrictions that were currently preventing this.

The court lifted the 2023 orders in Patricia's best interests.