Judge authorises deprivation of liberty of woman with anorexia at new placement but only while she resides there willingly

A woman who suffers from anorexia cannot be forced to stay in accommodation which she has consented to occupy if she changes her mind, a Deputy High Court judge has ruled on authorising her deprivation of liberty at the new placement.

Victoria Butler-Cole KC, sitting as a deputy High Court judge, heard the case concerning HC, her father RC and an Integrated Care Board.

HC is 27, suffers mental health problems and has been diagnosed with anorexia for which she has had a number of admissions to hospital.

The council and the ICB sought declarations that HC lacks capacity to decide where she should live and receive care, and that it was in her best interests to move to a new placement – known as D House – immediately, using physical restraint if necessary.

Her present placement - known as K House - has given notice that it can no longer accommodate her.

HC's father, RC, though wanted her to live with him but the NHS Trust said in the past that he had not engaged with professionals and had been obstructive.

“There was, very evidently, a breakdown of trust, with RC critical of earlier decisions about care provision for HC,” the judge said.

“That lack of trust persists on both the part of RC and the statutory bodies. For example, RC and HC continue to hold the view that they would not accept any treatment from the eating disorder service in [the county].”

Ms Butler-Cole concluded there was “reason to believe that HC lacks capacity to decide where to live and receive care such that s.48(a) MCA 2005 is satisfied”.

This was amongst other things because HC has diagnosed mental disorders capable of satisfying the requirements of s.2 MCA 2005 and there was evidence that HC is not able to understand, retain and use or weigh information.

The matter had become urgent as K House would no longer accommodate HC and a decision had to be made on where she would go.

The Deputy High Court judgesaid: “There are a number of good reasons against HC returning to return to live with her father even temporarily.”

These included that this would reinforce HC's belief that she is dependent on him and do nothing to enhance her independence and that if HC requires specialist input for anorexia while she lives with RC both were likely refuse services from the trust.

The judge said though it was not in HC's best interests to require her to move to D House against her will because “HC is presently very distressed and is self-harming frequently and [a therapist said] forcing her to do something with which her father disagrees is likely to cause HC significant distress.

“It follows that if HC and RC do not support the move but it is imposed on HC regardless, HC's mental health is likely to worsen, with serious consequences for her, including potentially readmission to hospital under the MHA 1983.”

The judge added: “The prospect of HC settling in at D House and benefiting from the services it provides is remote, if she has been forced to go there and believes that it is not a suitable placement.  It has been difficult enough for HC to benefit from the services at K House, which is a placement that both she and RC supported.”

Ms Butler-Cole continued: “The use of physical restraint to move HC, even on the basis that is a last resort, is not justified.”

She explained: “I consider it inconsistent with my determination that it is in HC's best interests to move to D House only if she agrees to go there, to order that once at D House, if she changes her mind, she should be prevented from leaving. 

“If the only reason for not imposing a forced move was the use of restraint during the journey, the two propositions would sit together more easily. But that was not the only reason - there are serious concerns about the impact on HC's mental health and self-harming behaviour of imposing a decision on her to which she objects.”

HC’s living arrangements at D House would be an objective deprivation of her liberty, and “since I have found that there is reason to believe she lacks capacity to make decisions about her care and residence, substitute consent to her objective deprivation of liberty is required while she resides there willingly”.

The judge concluded she would authorise HC's deprivation of liberty at D House “in the event she has agreed to move there, but that authorisation will end if HC changes her mind about staying there and says that she wishes to return to the family home”.

Were that to happen, the case would have to be returned to court immediately for further directions.

Mark Smulian