I have been working in the field of eating disorders psychiatry for over 15 years.   

More recently, there has been a greater crossover with my medicolegal work.  It is widely accepted that eating disorders are becoming a more prevalent, complex and challenging area of health, due to the likely increase in psychiatric comorbidity, as well as an increase in cultural and societal factors.  These all contribute to the maintenance and severity of these debilitating conditions.  

It is not surprising that the interface between eating disorders and the law is increasing.  

There is a variety of eating disorders seen in clinical practice, the most common being anorexia nervosa, bulimia nervosa, binge eating disorder, and avoidant restrictive food intake disorder.  Typically, the majority of medicolegal cases relating to eating disorders involve anorexia nervosa. 

Anorexia nervosa is an extremely complicated illness, whereby the patient (or Claimant) is typically significantly underweight and malnourished, is engaging in behaviours which promote weight loss such as restriction of calories, purging, excessive exercise or abuse of non-prescribed medications.   

The disorder is driven by ‘anorexic cognitions’, such as a fear of weight gain, a drive for thinness, and a body image distortion, where the individual believes they are overweight despite evidence to the contrary. The reason why these disorders are often so challenging to treat is that the low weight often provides a function for the individual, such as control, a sense of achievement, safety, security, a way of managing difficult emotions, eliciting of care or an identity. Often there is also a history of trauma. The patient can therefore be ambivalent to treatment or can, in severe cases, even sabotage their own treatment in order to remain ‘anorexic’. This in turn leads to considerations around capacity, best interest decisions, appropriateness of coercive management, ethical dilemmas and differences of opinion about management. The central themes of ‘first do no harm’, appropriateness, proportionality, best interests, human rights and legal precedents often weave their way through cases.

In other severe psychiatric presentations, similar difficulties can arise at the interface between the Mental Capacity Act and Mental Health Act, particularly where capacity, compulsory treatment and the appropriate legal framework are disputed.

For solicitors, these cases can present difficult, evidential questions from the outset. The presence of anorexia nervosa does not, of itself, determine capacity, causation, breach of duty or prognosis. A careful expert analysis is usually required to distinguish between capacious refusal of treatment, illness-driven decision-making, ambivalence, entrenched compulsive behaviours and the impact of starvation on cognition. In practice, the most important questions are often not whether the patient can repeat information about the risks of malnutrition, but whether they can genuinely use and weigh that information in the context of their own illness, prognosis and treatment options.  

Requests for my eating disorder expertise arrive from different avenues, including second opinions for intractable cases, First Tier Mental Health Review Tribunals, The Coroner’s Court, Clinical Negligence and the Court of Protection, with the latter being the most challenging, yet fascinating area.  

From a clinical negligence perspective, eating disorder cases may require close scrutiny of risk assessment, escalation, physical monitoring, safeguarding, liaison between mental health and acute medical services, and the timing of specialist referral. Issues may arise around delayed diagnosis, inadequate management of medical instability, failures in care planning, inappropriate discharge, insufficient family involvement, or poor coordination between community, inpatient and acute settings. Causation can be particularly complex because anorexia nervosa is often chronic, relapsing and associated with comorbid psychiatric conditions. A medico-legal opinion therefore needs to address not only what should have happened, but whether earlier or different interventions would probably have altered the outcome.  

These issues are not unique to eating disorders; psychiatric negligence claims involving risk assessment, discharge and causation can similarly depend on early identification of the precise expert evidence required.

There have been many cases of eating disorders heard at the Court of Protection. The first, and seminal case, was Re E (Medical Treatment: Anorexia) in 2012.  Although there has been a variety of issues wrestled within this court over the years, including hunger strikes and requests for novel treatments such as Ketamine, the typical cases involve patients with severe and longstanding anorexia nervosa with significant medical risk who have endured years of treatment, often under the Mental Health Act, with repeated coercive treatments including nasogastric feeding under restraint.   

The treating team, sometimes with the agreement of the patient and their family, reaches the conclusion that the coercive treatment is not in the patient’s best interest, with more risk than benefit and is, in fact, causing harm.   These cases are often riddled with complexity, given that if treatment under the mental health act is removed, and due to the patient’s enduring illness, longstanding function of their eating disorder and often poor prognosis, this could lead to further deterioration and death.   

Complicating this, is the fact that anorexia nervosa is seen as a treatable illness, unlike for example, terminal cancer or dementia, where treatment at the latter stages of the illness, is often seen as futile.  Therefore, lack of consensus can often arise, with parties disagreeing over whether the patient has the capacity to make decisions about their treatment and what would be in the patient’s best interest.  As previously mentioned, human rights, ethical complexity, and legal precedents can all increase the challenge. 

In Court of Protection cases, the expert’s role is often to assist the Court with the clinical reality behind the legal tests. This includes the nature and severity of the eating disorder, the patient’s previous treatment history, the likely benefits and burdens of further treatment, the risks associated with compulsory feeding, and the realistic prognosis with and without intervention. These cases can be emotionally charged, particularly where families, treating teams and patients hold different views about what continued treatment represents: hope, harm, protection, coercion, or a loss of dignity. A robust expert report must therefore be clinically detailed, legally relevant, and clear about the limits of what psychiatry can predict.      

In almost all cases, the Court has agreed with the request of the treating team to not treat under the Mental Health Act.  There are some who disagree with this direction of travel.  However, this illustrates the huge complexity in this area of psychiatry and the complicated collision of law, ethics, and medicine.