By Celia Kitzinger, 12th May 2026
At the centre of this “tragic” case is a woman (“P”) who has suffered from “severe treatment-resistant anorexia for over 20 years”. She’s now “profoundly malnourished” and “at significant risk of death from malnutrition”. The case comes to court because she is refusing naso-gastric (NG) feeding.
That’s how counsel for the Trust, Nageena Khalique KC introduced the case at the hearing before Mrs Justice Judd on 11th May 2026, sitting in the Royal Courts of Justice (COP 20033278).
Ms Khalique also made clear that “no party is seeking to invite the court to compel NG feeding”: not the Trust, not the Official Solicitor, not P’s mother, and not P’s partner/friend (all of whom have been joined as parties). Naso-gastric feeding (and other treatments) are available to P if she chooses to accept them, but nobody is arguing that they should be forced upon her. As the judge observed, “there is no dispute”.
It turned out, however, that there was a dispute – but not about P’s best interests.
The dispute is about whether or not the Court of Protection has the jurisdiction to make the second of the two declarations sought by Birmingham and Solihull Mental Health NHS Foundation Trust. The first (clearly within the COP’s jurisdiction) is a declaration that P lacks capacity to decide about treatment for her eating disorder. The second (about which jurisdiction is disputed) is a declaration that it’s lawful and in P’s best interests not to detain her under the Mental Health Act and not to impose feeding upon her, under restraint, under s.63 of the Mental Health Act.
The Trust is asking for that second declaration (as have other Trusts in other cases I’ve observed, who have been granted it) on the basis that the COP does have jurisdiction. But according to the Official Solicitor, the Court does not (or perhaps may not) have jurisdiction to make that second declaration because the lawfulness or otherwise of decisions pursuant to the Mental Health Act are public law decisions instead to be determined in the High Court.
Unfortunately, despite my best endeavours, I do not understand the basis for the argument of either the Trust or the Official Solicitor and it was very hard to follow what was said in court.
The Trust’s position that the Court of Protection does have jurisdiction seems to hinge on some argument related to the Court of Appeal judgment in the Townsend case (Townsend v Epsom and St Helier University Hospitals NHS Trust [2026] EWCA Civ 195) – which is a case I know very well, having watched all the hearings and attended webinars about it. It’s easy to distinguish Townsend from this case (and the judge seemed to be doing so at various points) – though whether or not the points of distinction are pertinent to the arguments made was not clear to me. In Townsend, the family strongly disagreed with the (“clinical”) decision not to provide life-sustaining treatment to P, and the court ruled that under those circumstances, cases should come to court, irrespective of whether or not the doctors are making what they call purely “clinical”, as opposed to “best interests”, decisions. In the case in court here, though, the family agree that treatment should not be provided (at least, not by force, which is the only way it can be provided, it seems) and also the Trust is specifically seeking a “best interests” (not a ‘clinical’) decision. I think the Trust’s argument might rest on the idea that what might seem to be a “clinical” decision (not to provide treatment) is also inevitably a “best interests” decision and hence falls within the remit of the Court of Protection.
A major impediment to my understanding is that I’m writing this without access to position statements from the hearing. This is because although I was initially sent position statements from the Trust (there were two, and I had time to read them before the hearing), I was subsequently asked to destroy them, and have not yet received the replacement redacted versions I’ve been promised. As usual, the Official Solicitor refused to disclose her position statement, and the judge did not direct disclosure. My understanding was also not helped by the fact that it also felt, sometimes, as though counsel and the judge were talking past each other (but perhaps that was because I didn’t sufficiently grasp what was going on myself).
In trying to make sense of what happened in court in this case, I searched out some earlier cases concerned with forced treatment for anorexia. Several such cases were helpfully cited in the position statements, but since I’d lost access to those and can’t remember the citations, I’ve had to search out cases myself, and I’ve no idea whether or not these are cases either party might be relying on in making their arguments. I remember some concern about jurisdictional issues being raised in an previous hearing I observed before Mr Justice McKendrick, also involving an anorexic woman (Leeds and York Partnership NHS Foundation Trust v FF & Anor [2025] EWCOP 26 (T3)). This was of course chronologically before the Townsend decision from the Court of Appeal. Nonetheless, I’ve revisited that case. I find that I recorded (in a blog post back in July 2025) that there had been in the course of that hearing “a detailed exchange about s.19 of the Senior Courts Act (in relation to the MCA and inherent jurisdiction) and its importance in progressing consistency in anorexia cases moving forward.” Sadly, I continued: “This legal discussion was technically too sophisticated for us observers to follow, especially as we do not have access to the “legal framework” document cited as an Appendix to the Trust’s position statement…” (see: “No more force (or threat of force) to compel feeding of woman with severe and enduring anorexia”). It’s dispiriting to be reminded that in that case, too, I was not given access to a “legal framework” document and also failed to understand the legal discussion in court on that occasion.
I also tried the (excellent) Mental Capacity Law and Policy blog produced by 39 Essex Chambers, which regularly assists with my understanding of legal matters. It says:
“… what McKendrick J was doing was (despite his cautious approach to doing so) making a generalised pronouncement about how procedurally to approach the situation of a patient detained under the MHA 1983 where the clinicians have – for whatever reason – decided that they do not feel that the tools of the MHA 1983 provide the answer to the ethical dilemmas that have arisen and have, instead, sought to answer that dilemma by reference to capacity and best interests” (“Anorexia, the Mental Health Act and the Court of Protection: A clear route map for cases”)
The subtitle of the blog post from which that quotation promises more than it delivers in relation to the present case. It’s not “clear” to me how McKendrick’s “route map” applies, or indeed how Townsend offers (or compels) a different route, or detour. In any event, given the widespread criticism of Townsend and the likelihood of an upcoming Supreme Court hearing, it may be that Townsend provides a very slender thread on which to base the Trust’s argument – or indeed, on which to delay determination of P’s best interests by first detouring down what might turn out to be a jurisdictional cul-de-sac over the next six weeks.
Despite their disagreements, the parties had agreed a draft order, which I think was essentially a directions order to move towards a hearing to determine which of them is right on the jurisdictional matter. They were, said Ms Khalique, “in agreement that the jurisdiction issue and the applicability of Townsend and whether this court can deal with these declarations – we agree it requires further analysis and further written submissions”. They want that to happen first before the Official Solicitor begins to investigate P’s best interests. If the outcome of the next hearing is that the court does not have jurisdiction, then the Official Solicitor won’t need – or be able – to investigate P’s best interests. If it does have jurisdiction, best interests will come next (if P is still alive).
The judge seemed quite concerned about all this.
I have captured as best I can some of the exchanges in court that might shed light on what was happening, and why. (They’re unlikely to be verbatim: they come from my touch-typed contemporaneous notes).
Khalique: (defending the idea that the court DOES have jurisdiction to make the order the Trust is seeking) What we are dealing with here is another Act [the Mental Health Act] which might make the non-treatment proposal ineligible because of s.63. But we say that because of Townsend there can be carve-out.
Judge: But this is a ‘best interests’ decision. I don’t quite understand, I’ll be honest with you, what is the difference between a “clinical” and a ‘best interests’ decision. You’re not offering treatment against a patient’s best interests, are you.
Khalique: There are two stages.. [explains first the clinicians select clinically appropriate treatments and then the capacitous patient chooses which they want to consent to. or the incapacitous patient has a ‘clinically appropriate’ treatment selected for them in their best interests)
Judge: But, do you offer treatment that isn’t in a patient’s best interests?
Khalique: There might be more than one treatment…..
Later, Ms Khalique tried again:
Khalique: We say what’s happened since Townsend makes it more clear than before that decisions under the Mental Health Act come into the jurisdiction of the Court of Protection. Townsend says that “Any decision about the care and treatment of a mentally incapacitated adult, including the withdrawal of life‑sustaining treatment, must be taken in the patient’s best interests. There is no carve‑out for ‘clinical decisions’”. What I’m saying is that also applies to decisions taken under Mental Health Act – and I think the distinction the Official Solicitor is making is that decisions made under the Mental Health Act are carved out by virtue of the operation of that Act. This is an argument that’s not been ventilated before… and all the cases before have not grappled with it either …. The question is whether, in the light of Townsend – whether the point that there’s no carve-out of clinical decisions includes decisions under the Mental Health Act. And it’s for that reason we say this court may have jurisdiction. I may have been over-simplistic. I may have got it wrong….
Here’s the view of the Official Solicitor, as represented by Katie Scott.
Scott: It may be that the Official Solicitor comes to the view that this is all a matter for clinicians acting under the Mental Health Act – not something the Court of Protection should be involved in in any event… What is the role of the Official Solicitor – or rather the litigation friend – in these kinds of cases….
Judge: If the Official Solicitor was of the view that what was proposed by the Trust was the right view of what is in P’s best interests, then there wouldn’t be a role for the Court either – because when all parties are agreed as to proposed course of conduct…
Scott: That’s right. That was Re Y. The reason the Official Solicitor has any role at all is because it’s being brought to court. The Trust could proceed without a court hearing and say they complied with medical guidance and so on. But because they want the reassurance of the declarations, that leads to the issues the Official Solicitor wishes to ventilate. What is the obligation on the Trust when there is no disagreement?
Judge: But we don’t know whether the Official Solicitor disagrees or not. It might be, I don’t know, that the Official Solicitor agrees with the proposed course of action, and then there is no need for the court to determine the jurisdictional issue. It would be academic.
Scott: Yes, other than the fact that the Trust wants a declaration – presumably because they want protection for their clinicians when there is a high risk of death.
(later)
Scott: It may well be that after meeting P that the Official Solicitor takes the same view [as the Trust] on her best interests.
Judge: Isn’t a case like this better litigated when there is dispute rather than when there isn’t?
Scott: But we are now before the court. The Official Solicitor needs to arrive at a view, to investigate the medical records, carry out investigations of her own, bring clinicians to court to probe the evidence… We’re now before the court, so the court has to make a decision about what it can and can’t do.
Judge: I am pushing back on the idea that no investigation (of best interests) takes place between now and the next hearing (concerned with the jurisdictional issues), so we don’t have a hearing in say two months’ time, and then have to wait again to decide best interests.
[later]
Scott: The Official Solicitor can’t get wishes and feelings from her until we know what the court is going to be doing.
Judge: What do you mean?
Scott: If it’s being said that this court has the power to make a decision about whether or not she receives NG feeding under restraint.
Judge: Her wishes and feelings are not going to relate to the jurisdictional issue but to whether or not those things happen (i.e. to whether or not she is given treatment under restraint)
Scott: We have not yet met with P, but I am aware from other cases that some young ladies with anorexia are keenly aware of what powers the court does and doesn’t have – and, having been in the mental health system and dealt with tribunals – might take a very keen interest in what the powers of the court are. […] What won’t be able to be explained to her at the moment is what the court can and cannot do.
Judge: The reasons I am pressing this is not idly, but because it’s much harder for courts to decide cases when there isn’t actually a dispute. The fact of a dispute focuses the court on the reasons for the need to make decisions about jurisdiction. Without that, it can become woolly and academic. And that’s a danger in this case.
Scott: There have been other cases like this. Trusts are still bringing these cases where there is no dispute and asking for relief and that’s one of the- I don’t say concerns – it’s one of the issues that we need to grapple with. Do Trusts need to do this? And if the answer is “no” then it would be helpful to know that.
My thoughts at this point are, well, yes, it would be helpful to know whether Trusts need (or are able) to apply for declaratory relief. But at what cost to P and her family in this case if (to put it at its worst) they are caught up in protracted proceedings as a test case to determine a jurisdictional issue?
But of course, it really matters, to all of us, how the “ethical dilemmas” associated with force-feeding anorexics against their will, are decided in the courts. The principle is not purely “academic” and there’s been heated – and often not very well informed or (in my view) deliberately misleading – media coverage of the way in which the Court of Protection handles these cases.
It’s self-evident that how judges decide to make (or not to make) declarations that forced-feeding is contrary to someone’s best interests, and the jurisdictional basis on which they do so, is a matter of legitimate public interest. So, it’s hard to see that any rational purpose is served by admitting members of the public to a hearing with a complex jurisdictional issue at the heart of it and denying us access to the written arguments that would enable us make sense of it. Instead of achieving ‘transparency’ or ‘open justice’ (to which the court purportedly aspires), it simply engenders a sense of frustrated alienation.
I’ve been told I will be sent a redacted Trust position statement from today’s hearing. But I’ve been refused the Official Solicitor’s position statement, redacted or otherwise – though It cannot possibly be contrary to P’s best interests for members of the public to be granted access to the jurisdictional arguments underpinning her case. The judge asked the parties to provide me with their legal arguments twenty-four hours in advance of the next hearing, so it’s not that she is deliberately trying to obfuscate the case or deliberately to exclude me from understanding what’s going on. I think it’s simply that transparency is way down the list of priorities, and it frequently seems to take parties by surprise that observers are in court and asking for position statements which they’ve not thought to anonymise or redact in advance – plus the Official Solicitor has adopted a standard refusal policy which is unhelpful and frankly hostile to transparency.
I don’t know when the next hearing will be. There was talk of the second half of June (and it seems possible that it may be before a different judge). For anyone who wants to understand the arguments about what the Court of Protection can and cannot do (which is pretty basic, really, to understanding the justice system!) the first challenge for transparency will be finding out when it is happening. Then observers will have to navigate access to the hearing and access to court documents. I don’t know whether the judge’s direction to provide legal arguments to me in advance extends also to other observers. But without those documents, observers will surely be lost.
Open justice should mean more than getting into the courtroom (though that is often challenge enough). It should also mean public disclosure of documents essential to understanding the case. That didn’t happen today.
Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She is on LinkedIn (here), and also on X (@KitzingerCelia) and Bluesky (@kitzingercelia.bsky.social)
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