Treatment Refusal in Anorexia Nervosa: The Hardest of Cases

If hard cases make bad law, then those interested in reforming mental health law so as to place it on a sure human rights footing ought steer well clear of treatment refusal in anorexia nervosa. In her paper in this volume, Sacha Kendall uses a perspective informed by the work of Foucault and Bauman to map out much of the treacherous terrain that these cases cover (Kendall 2014). In the recent Re E (Medical Treatment: Anorexia) [2012] EWHC 1639 (COP), a 32-year-old woman with a 20-year history of eating disorder was ordered to undergo further treatment despite her family’s objections, her treating team’s objections, and her own objections made both contemporaneously and via advance directive. Cases like this one leave many commentators wondering how decision-making capacity and best interests can be judged in these circumstances (Hayes 2012; Allen 2012; Coggon 2013), and some are even moved to question our whole approach (Richardson 2012). There are cases where a patient who is severely affected by anorexia nervosa is, as a result, unable to make a competent decision about treatment. This will either be because she is unable to understand the information relevant to a refusal of treatment—although a patient who is fully conscious and not delirious will likely be able to manage at least this—or she will be unable to weigh information about whether or not to have treatment. In these cases it is not clear how the emerging paradigm of “supported decision-making” can be utilised to assist the person to come to a decision that can properly be considered autonomous orwhether it will be useful in all cases. In at least some of these cases where a person lacks capacity, a substituted decision will still be necessary—but how should the substituted decision be made? We have argued elsewhere that any substituted decision, made in the context of mental illness, should respect and give effect to the will and preferences of the person to the greatest extent possible and, in any case, be shown to be manifestly necessary to “promote the person’s Bioethical Inquiry DOI 10.1007/s11673-013-9498-8