How should the determination of wishes and feelings be approached in circumstances where an impairment of the mind inhibits the protected party from expressing what they truly want?
Such a dilemma was faced by the judge in St Georges University Hospitals Foundation Trust v LV (2025) EWCOP 9.
LV is an intelligent and academically ambitious woman in her early 20s who has been diagnosed with anorexia nervosa as well as severe depression and anxiety.
At the point the application was made, LV had become extremely unwell and in the absence of the intervention sought, was likely to die within a matter of days or weeks.
The application first sought a declaration of incapacity to conduct the proceedings and make decisions about treatment which was granted on the basis, whilst LV was able to understand and retain the relevant information regarding treatment, she was unable to weigh the merits of such because there were simply no circumstances under which she would agree to take nutrition.
This was due to an impairment of the mind caused by anorexic cognition and the effects of starvation on her brain.
Having found she lacked capacity, the next question was whether it was in LV’s best interests to receive a period of feeding under sedation, despite the very significant risks from both a physical as well as a psychological perspective of going against her wishes.
Here, the judge noted LV had asked on a number of previous occasions if anyone could help her and she had also taken an interest in crafts and seedlings which it was thought were consistent with someone who is thinking about next week, next month and next year.
This suggested her expressions of a wish to die in the moment were not indicative of her actual feelings and if she was unencumbered by anorexic cognition, it was determined LV’s wish would be to get better and to live.
As such, the application was granted.
Gemma Quinn is a Legal Director in the catastrophic and large loss injury team based in Manchester and lead of the Court of Protection subject matter group
"Setting as I have those expression of her wishes in the context of all the other evidence, including her own other words and behaviour, I have concluded that the wider picture informs me that her wishes or feelings, forming as they do a part of my decision making, are more nuanced and less consistent than might appear the case at first glance and before detailed consideration."
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