In this insight our experts review Nottingham University Hospitals NHS Trust & Anor v RL & Ors [2023] EWCOP 22, where the High Court authorised the use of a nasogastric (NG) tube to facilitate treatment of a malnourished prisoner with a severe psychiatric disorder.

The facts

The patient (P) in this case is a prisoner detained within the prison estate. Since early 2021, there had been concerns regarding P’s mental health particularly in relation to him responding to unseen stimuli, his food refusal and lack of verbal communication. Over the subsequent years, P deteriorated, becoming withdrawn, selectively mute and severely malnourished. Attempts by mental health services to engage P were unsuccessful.

P refused to accept the insertion of a NG tube to enable him to receive treatment for his mental and physical health. It was agreed by the treating team that, whilst without such treatment P’s life would not immediately be jeopardised, the longer the situation continued, the greater the risks to P in the immediate and long term.

The treating NHS trusts made an application to the Court of Protection for declarations that it would be in P’s best interests to have a NG tube inserted and to receive medication, hydration and nutrition via this. Further that the administration of such treatment (including the use of restraint) would be lawful to the extent that it amounted to a deprivation of P’s liberty.

The application came before the High Court on 17 February 2023. P was represented by the Official Solicitor.

The Court’s findings

Having been assisted by a Consultant Psychiatrist who had met with P on 10 occasions since 2020, four of which had been recent, the Court accepted that P was suffering from a severe psychotic disorder (albeit without a precise diagnosis) and lacked capacity to make decisions in respect of the specific matters before the court. In particular, it was noted P had not given “any indication of understanding the link between receiving food and treatment and life and death”.

In turning to the question of what was in P’s best interest, the Court acknowledged the strong presumption of the preservation of life. The Court noted its duty to take into account P’s wishes and feelings but accepted these were very difficult to assess due to P’s lack of engagement with others. P had not been willing to communicate his views to the Consultant Psychiatrist, had hidden under the bedsheets and refused to engage when he was visited by the Official Solicitor’s representative, and had not engaged with his family. P had expressed on one occasion in January 2023 that he wanted to end his life, however, this was a single occasion and not consistently supported by his actions, for example his inconsistent approach to his oral intake. P’s mother expressed her view that, as the person who knows P best, P would want treatment had he not been suffering from a mental illness.

Taking all the information before it into account, the Court made declarations under s.15 of the Mental Capacity Act 2005 that P lacked capacity regarding the decision to eat and drink and take medication, and that it was lawful and in P’s best interests to receive nutrition, hydration and medication via a NG tube. It was acknowledged that P had already accepted the insertion of a NG tube by the treating team without resistance that morning, albeit this was reported to have been a passive acceptance rather than a demonstration of any insight into his condition. In anticipation that the NG tube may become displaced, the Court held that it would be lawful and in P’s best interests for the NG tube to be reinserted under restraint if required.

The judgment can be found here. The matter was to return before the Court within five to seven days to review the progress. However, at the time of writing, subsequent judgements are yet to be reported.

What this means for healthcare organisations operating across the prison estate

Cases of food refusal commonly occur within the prison estate. This case does not present us with anything new from a legal perspective, but reminds healthcare providers of the following:

• to engage a psychiatrist to enable specialist consideration of capacity when presented with a case of food refusal
• to keep capacity under review
• to assess the long term risks of immediate behaviours
• to seek legal input.

A multi-disciplinary approach and detailed record keeping, will be of significant assistance to all those involved and key for making any prompt application to the court if and when required.

How Capsticks can help

Capsticks have a dedicated Health and Justice Sector working with various private and NHS healthcare providers operating within the prison estate. The team includes specialists who can advise on consent, capacity and medical treatment.

For further information on the services we can provide, please see here.

If you have any queries around what's discussed in this article, or the impact on your organisation, please speak to Naomi McMaster, Adam Hartrick or Lucy Houston to find out more about how Capsticks can help.