Disordered eating and the gaps between services – the consequences for the Court of Protection

In Cwm Taf Morgannwg Health Board v AB & Anor [2025] EWCOP 24 (T3), as CD, the mother of AB,  put it:

She is beautiful (inside and out), she is highly intelligent and extremely articulate, with her whole future ahead of her. She is brilliant at art, studies hard at school, and dreams of one day being a paediatric nurse. She is a 17 year old CHILD currently fighting the most horrendous battle of her life that no child should have to face.

The judgment is of note for two reasons. The first is the intense concern of the judge, McKendrick J, to get to the bottom of whether or not AB had capacity to make the decisions in question. As he noted (in a footnote to the first paragraph of his judgment):

The application was issued within the Court of Protection’s jurisdiction. Given AB is a child, I have been alive to the possibility of providing clinicians with consent to treat under the High Court’s Inherent Jurisdiction in the absence of consent from AB herself. See the succinct expression of the court’s protective power at paragraph 2 of Sir James Munby’s magisterial judgment in A NHS Trust v X [2021] EWHC 65 (Fam); [2021] WLR 4 WLR 11: “It is conventional wisdom that no child (that is, someone who has not reached the age of 18) has such an absolute right, and that even if the child is Gillick competent (see Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112) or, having reached the age of 16, comes within the ambit of section 8 of the Family Law Reform Act 1969, the court, in the exercise of its inherent parens patriae or wardship jurisdiction, can in an appropriate case – typically thought of as being a case where the consequence of the child’s decision is likely to be serious risk to health or death – overrule the child’s decision, either, as the case may be, vetoing some procedure to which the child has consented or directing that the child should undergo some procedure to which the child is objecting.” The fact that this powerful, residual, protective power is available to me, has added to the anxiety that has clouded these proceedings.

The second was the judge’s intense concern as to the gaps that AB appeared to be falling through – and the court was being confronted with – given the intersecting powers, obligations and stances of the multiple public bodies involved, leading to these observations:

33.  This application was issued urgently on 27 June 2025. It was heard by the court within hours, out of hours. Orders were made. Further orders were made by Henke J over the weekend. It took up considerable court time in the urgent applications list on 30 June 2025. Further orders were made. It required two further hearing on 9 July 2025. All this judicial time recognised the gravity of AB’s condition and the need to have in place a lawful framework to treat her.

34.  One can understand the reasoning behind each public bodies’ position, to some extent. Wye Valley’s role largely ended when AB was discharged from its acute ward. Herefordshire and Worcestershire Health and Care NHS Trust made a good faith attempt to file a witness statement of events rather than a capacity assessment. One can understand there may be a limited role for a community psychiatric team if AB is sectioned and therefore Powys may have a limited role. I accept Powys County Council’s limited role until discharge from section. I can also understand the logic of Cwm Taf’s position that whilst under 1983 Act detention, the role of this court may be limited.

35.  However there are a number of concerning features of this litigation which are individually and collectively caused by the public bodies (although I recognise the very limited role played by Powys County Council). These are:

a.     A failure to appreciate these proceedings began as an urgent out of hours application and the hearings and orders made without hearings have all had to be fitted into already very busy court lists. It is especially disappointing to note that orders made have been routinely ignored. Nor have the Court of Protection rules been followed.

b.     Whilst AB is currently detained under section 2 of the1983 Act, she requires an urgent capacity assessment. The chronology seems clear: her capacity appears to have fluctuated and there have been questions over capacity and liability to be detained. There is repeated reference to voluntary admission. She has a complex presentation. Thought needs to be given now, as to whether she lacks capacity in circumstances where her section 2 1983 Act liability to be detained and treated is discharged. Will there be the framework to keep her safe or will there be a further urgent out of hours application?

c.      It is surprising that two orders from this court to two different public bodies which were made to ascertain this court’s jurisdiction, have not been followed. It is concerning that Powys felt the appropriate response was to email the parties letting them know the order would not be complied with, without considering a formal COP 9 to vary the order, as the original section 49 order provided for.

d.     It is a matter of concern that Cwm Taf are detaining and treating AB and knew of this hearing and had sufficient understanding of the issues involved, yet they did not write to the court to update it or instruct representatives to attend. Nor does it appear to me they adopted a constructive approach to Wye Valley’s legitimate attempt to be discharged as applicant and replaced by another public body.

e.     All in all, the failure of these public bodies to work together is perplexing. They each appear to operate in silos having only regard to their own duties, without any common sense approach to the life of a child, who requires them to work together to protect her.

f.      Overall, the approach taken by the public bodies has failed to properly respect Mrs CD and AB herself. The lack of common sense thinking appears to have permitted a disregard for the humanity of those involved. Mrs CD’s powerful, maternal plea (above) should be re-read by those treating AB and those advising and representing the public bodies.

36.  The court had anticipated that the Court of Protection proceedings might end. This is clear from orders set out above. However, I unhesitatingly agree with the submissions of the Official Solicitor that AB’s capacity is complex. It needs to be assessed. It may provide a life sustaining framework to enable her treatment, should she lack capacity. Aside from post 1983 Act detention issues, it seems to me that whether AB has capacity to consent or not to forced treatment is a fundamental issue which should be properly taken into account when considering her regime under detention and any treatment without her consent pursuant to section 63 of the 1983 Act. Likewise it is also relevant should the court exercise its parens patriae jurisdiction.

37.  The communication between the relevant public bodies has been sufficiently poor that in the exercise of my quasi-inquisitorial jurisdiction, I cannot accede to Cwm Taf’s submission that I stay or conclude these proceedings at the hearing. I do not have the necessary confidence to do so. Furthermore, such an approach would be unfair to Mrs CD. I shall adjourn the matter for the limited evidence as set out above. I add that experience suggests Court of Protection practitioners generally adopt a collaborative approach and the missteps in this matter may have been caused by the urgent nature of the application for variety of very busy professionals.

The problem of silos is one that causes impossible problems and heartache outside the courtroom (one of reasons why the interface between health and social care has troubled the Law Commission greatly in its disabled children’s social care project, and also why the work of the SPROCKET project is potentially so important). It is deeply depressing that resolution – even if only partial resolution so far in this case – sometimes then has to involve the time and resources of a judge being deployed not to resolve questions of capacity and best interests, but rather to act, in effect, as an armed care coordinator.

Alex Ruck Keene KC (Hon) is a barrister at 39 Essex Chambers. This article first appeared on his Mental Capacity Law and Policy blog.