“Steadying the ship”: Vice President’s judgment will list factors to consider before making applications for declaratory relief in life-sustaining treatment cases under the Mental Health Act

By Sydney White, 24th June 2026

The grave facts of this case (COP 20033278, before Mrs Justice Theis on 23^rd June 2026) are discussed in a previous blog (Anorexia, declaratory protection and the Mental Health Act: Ventilating a jurisdictional question following Townsend). In summary it concerns a woman (“P”) who suffers from anorexia nervosa and is refusing nasogastric tube feeding.

The Trust brought an application to the Court of Protection for a declaration that it was lawful and in P’s best interests not to detain her under the Mental Health Act and not to impose feeding upon her.

As emphasised throughout the hearing, this is a case of “unanimity”: P’s mother, the Official Solicitor, P’s treatment team—and, now, an independent medical expert (whose report was not available at the time the application was made)—are all in agreement that it is not in P’s best interests to treat her under compulsion.

In light of this independent medical opinion, the Trust (represented by James Berry KC) no longer believes it requires declaratory relief from the Court of Protection. Their submission today (initially before the court on Friday 19^th June 2026 in advance of what was otherwise to have been a two-day substantive hearing about declarative relief on 22^nd and 23^rd June 2026) was to withdraw their former application pursuant to CoP rule 13.2. That was not opposed by the other parties (P represented through her litigation friend the Official Solicitor by Katie Scott and P’s mother, represented by Victoria Butler-Cole KC).

The importance of this case is that, in response to the Trust’s application to withdraw, the OS invited the Court to give a full reasoned judgment, addressing:

(1) The circumstances in which a Trust should make an application to the Court where it proposes not to detain a patient under the MHA 1983, and not to provide potentially life-saving treatment to the patient (e.g. by way of NG feeding under restraint); and

(2) Which Court has jurisdiction to determine such an application (it being the position of the OS that, to the extent that the Trust requires any relief on the facts of this case, that relief should be granted by the High Court in the exercise of its inherent jurisdiction.^[1]

Counsel for the Trust said they were “agnostic” on the first issue.  Regarding the second issue, the Trust’s position was that no such guidance should be given because “there are plenty of authorities that say the court should not be used as a general advice centre, and this is a contentious issue on which there is no clear authority”. The Trust also submitted that if the Court of Protection were to tackle such an issue it should do so in a case where there is a contested substantive issue. These submissions were successful. Mrs Justice Theis accepted that the jurisdiction question was ill-suited to the facts of this case, because the application had been issued (and was being withdrawn) without dispute from any party. I found myself wondering if this was persuasive: why would it be more appropriate to deal with the jurisdiction question in a case where there is disagreement, given that it is fundamentally a question of legal principle? Nevertheless, it became clear early in the hearing that this issue would not be tackled in this case.

The first issue led to a much longer discussion. Mrs Justice Theis was keen to “steady the ship” by creating a list of factors to be considered when deciding whether to issue an application for declaratory relief in these circumstances. That list is likely to include:

• Whether an independent, external second medical opinion has been obtained
• Whether there is any dispute (a) as to P’s capacity, and (b) as to the treatment plan, between the treating team, the treating team and the expert second opinion, and between them and P or those with an interest in P’s welfare (including an IMCA if there is no-one else, s.37 MCA)
• The impact on P of bringing these kinds of applications (it was reported that P was very upset on learning of these proceedings)
• The relevance of the framework used for withdrawal applications relating to patients in prolonged disorders of consciousness
• What other steps can be taken to, for example, shorten proceedings

Some of these factors are quite vague, but will no doubt be refined in the published judgment.

The point, concerning “the impact on P of bringing these kinds of applications” was expanded upon by Ms Katie Scott, for the OS, in a manner tailored specifically to the experiences of patients with anorexia nervosa. She listed three ‘impacts’ to be considered. First, the fact that court proceedings are inherently stressful for Ps. Second, the need to avoid confusing P when applications are “legally complex and difficult to understand” and are often procedurally complex as well. Third, the need for clarity as to the scope of the application: what the court is being asked to do and what the powers of the court actually are. Ms Scott drove home the point that this is particularly important for patients with anorexia nervosa, who are, in her words “invariably intelligent, extremely engaged in their treatment and decisions being made about them…have been in the system for decades, [and are] very familiar with the powers of the MHA”.

Ms Scott demonstrated great respect for patients with anorexia nervosa with these submissions. The need for control is a core feature of anorexia, and proceedings in the Court of Protection are often both legally and procedurally confusing in a way that epitomises lack of control. It is to be hoped that Ms Scott’s insights are reflected in the list of factors that results from these proceedings.

The Trust was granted permission to withdraw its application, Although Mrs Justice Theis did not go as far as she might have in response to the OS’s submissions, she did indicate that she would take this opportunity to consider how, in her published judgment, she could support decision-making about court applications in this contentious and complex area of law.

I await with great anticipation the published judgment, which will no doubt serve as a useful tool for clinicians, legal practitioners, patients with anorexia nervosa, and those with an interest in their welfare.

Sydney White recently completed her MPhil (Master of Philosophy) in Medical Law at the University of Oxford. Her dissertation focused on the Court of Protection’s approach to best interests assessments for patients with anorexia nervosa under the Mental Capacity Act 2005. Her fascination with Medical Law brought her to the Open Justice Court of Protection Project.  She has previously published these blog posts: An in-person hearing on anorexia (Re CC): Observer’s rollercoaster and the role of “hope”,  Respecting autonomy in treating Anorexia Nervosa, and Cross-jurisdictional challenges and Schedule 3 in a case of anorexia: Health Service Executive of Ireland v SM [2024] EWCOP 60. She can be found on LinkedIn at www.linkedin.com/in/sydney-e-white, on Twitter/X @sydwhiteCOP and on Bluesky@sydneywhite

[1] _{I was not granted access to the skeleton arguments (or any other documents) relating to this hearing.  I am grateful to Celia Kitzinger, who was granted access to, and received,  written versions of the legal arguments from the Trust and the Official Solicitor via an order from Judd J at an earlier hearing: she drew on them to help me to elucidate the issues as presented by counsel orally in this hearing.}