Anorexia nervosa and the law: Legal mechanisms for involuntary treatment in Ireland

Introduction to the Mental Health Act 2001

The Mental Health Act 2001 (hereinafter the 2001 Act or MHA 2001) is the primary legislation dealing with involuntary treatment of mental disorders in Ireland. The 2001 Act regulates the detention and treatment of patients with mental disorders who do not consent to voluntary admission. There are two possible categories of patients in approved centres, voluntary and involuntary. The MHA 2001 is primarily concerned with involuntary patients; admission of voluntary patients is therefore primarily governed by normal common law rules on consent. ¹

Involuntary admission to an approved centre is tightly regulated by the MHA 2001 and must satisfy a number of conditions to be lawful. Firstly, the person must suffer from a mental disorder, which includes mental illness, severe dementia or significant intellectual disability (s 3(1)). In addition to having a mental disorder, a person must additionally satisfy one or both criteria for detention, which pertain to harm and need for treatment (s 3(1)).

There are several exclusionary criteria in the MHA 2001, with three specific diagnoses excluded from the purview of the Act. As per s 8(1) of the Act, a person cannot be detained if they are solely “suffering from a personality disorder”, “socially deviant” or “addicted to drugs or intoxicants”. The exclusion of personality disorders contrasts with English mental health law, which allows for the detention of persons with a primary diagnosis of personality disorder. ²

Anorexia nervosa as a mental illness under the MHA 2001

The first consideration is whether anorexia nervosa constitutes a “mental illness” under the Act. To meet this definition, a mental illness must firstly affect a person’s “thinking, perceiving, emotion or judgment” (s 3(2)). Anorexia nervosa is known to affect one’s thinking processes, and is associated with cognitive distortions.^3,4 Overvalued ideas, which are “unreasonable and sustained beliefs held with less than delusional intensity”, ⁵ are common in anorexia nervosa, such as the belief that one is fat despite being underweight. ⁶ Anorexia nervosa can additionally affect one’s judgment, impairing decision-making capacity. ⁷ The second part of the definition states that this altered state of mind must impair “the mental function of the person to the extent that he or she requires care or medical treatment in his or her own interest” (s 3(2)). This could potentially apply to severely underweight people with anorexia nervosa who require refeeding.

There is limited precedent from the Irish courts regarding the issue of treating anorexia nervosa under the MHA 2001, and whether it falls under the s 3 definition of a mental disorder. The HSE Model of Care for eating disorders report states: ⁸

“For a small number of people with eating disorders, their clinical condition will meet the above criteria for a mental disorder under section 3 of the MHA at a certain time, and they will require detention in their best interests.”

Similarly, a 2012 paper analysing the legal situation with anorexia nervosa in Ireland notes that the MHA 2001 does “not specifically [exclude] AN as a mental disorder”. ⁹ It is likely that the courts would deem that anorexia nervosa meets the s 3(1) definition of a mental disorder.

Treatment of anorexia nervosa under the MHA 2001

While anorexia nervosa is likely to meet the criteria for a mental disorder under the MHA 2001, the more pertinent question is whether nasogastric feeding, which treats the malnourishment and low weight that is a physical consequence of anorexia nervosa, could be considered treatment under the Act which is defined in s 2(1) as:

“administration of physical, psychological and other remedies relating to the care and rehabilitation of a patient under medical supervision, intended for the purposes of ameliorating a mental disorder.”

It is unclear to what extent this definition covers medical treatment of the physical consequences of a person’s mental disorder, though there is some precedent from case law. ¹ The interpretation of “treatment” under the MHA 2001 was examined in HSE v MX [2011] IEHC 326, which concerned the use of blood tests to monitor for side effects of anti-psychotic medication in an involuntary patient. In the judgment, MacMenamin J at [67] states:

“a broad construction of the word ‘treatment' will have the following consequences: it will respect the principles that allow for a broad interpretation … The Court in its interpretation of the Act, and in the assessment of the defendant’s best interest, should allow for a medical procedure which, albeit invasive, is ancillary to, and part of the procedures necessary to remedy and ameliorate her mental illness or its consequences.”

This broad interpretation of “treatment” under the MHA may allow for refeeding of patients with anorexia nervosa. It alludes to treatment covering the “consequences” of the mental illness, which could conceivably include treating the starvation caused by anorexia nervosa.

Physical restraint and anorexia nervosa

The final obstacle to consider regarding the use of the MHA 2001 to treat anorexia nervosa is that of restraint. Nasogastric feeding is sometimes resisted by patients who lack insight into their illness, meaning that physical restraint is required. The MHA 2001 allows restraint when necessary “for the purposes of treatment or to prevent the patient from injuring himself or herself or others” (s 69(1)). This must be done with due regard to the rules made by the Mental Health Commission regarding restraint. The Code of Practice produced by the Mental Health Commission on physical restraint states: ¹⁰

“Physical restraint should be used in rare and exceptional circumstances and only in the best interests of the resident when he or she poses an immediate threat of serious harm to self or others.”

The need for an “immediate” risk to be present for restraint to occur has been deemed to preclude its use in nasogastric feeding, as the risks associated with low weight are rarely immediate in nature. Of note, in the case of HSE v MX [2011] IEHC 326, the potential need for restraint was noted when discussing the procedure of venepuncture. While MacMenamin J determined that blood monitoring came under the broad interpretation of “treatment” under the Act, regarding restraint he noted:

“it has been stated in the affidavit that the defendant must be placed under restraint for the treatment, but no evidence has been adduced either way as to whether other methods were tried. There is a shortage of evidence on this point.”

The legality of restraint in relation to treatment in the absence of immediate risk therefore remains ambiguous.

Treatment of anorexia nervosa using mental health law in other jurisdictions

In contrast with the uncertainty regarding the treatment of anorexia nervosa under the MHA 2001 in Ireland, mental health law is used to treat anorexia nervosa in England and Wales. Anorexia nervosa fits the broad definition of “mental disorder” in the Mental Health Act 1983, which includes “any disorder or disability of the mind” with the exclusion of addiction issues. In s 145 the Act defines medical treatment as “nursing, psychological intervention and specialist mental health habilitation, rehabilitation and care” which has the purpose to “alleviate, or prevent a worsening of, the disorder or one or more of its symptoms or manifestations”. The interpretation of this definition of treatment in relation to anorexia nervosa was first examined in Riverside Health NHS Trust v Fox [1994] 1 FLR 614. In his judgment, Stuart-White J determined that:

“feeding is treatment within section 145 of the Mental Health Act … Until there is a steady weight gain no other treatment can be offered for the Respondent's mental condition so I hold that forced feeding if needed will be medical treatment for the mental disorder.”

While the case was later appealed and order discharged for reasons of procedure, later cases came to similar conclusions regarding the broad interpretation of treatment. In B v Croydon Health Authority [1995] 2 WLR 294, forced feeding was deemed to fall under the remit of medical treatment in s 63 of the 1983 Act. It is therefore accepted that nasogastric feeding of patients with anorexia nervosa falls under the remit of the MHA 1983. ¹¹

Future directions of the MHA 2001

There has been criticism of the MHA 2001 in relation to treatment of anorexia nervosa and the current practice of using wardship when nasogastric feeding is needed. The former High Court president, Mr Justice Peter Kelly has voiced concern over the increasing number of wardship applications in relation to eating disorders, and has called for reform of the MHA. ¹² Similarly, a consultant psychiatrist specialising in eating disorders expressed concern in the High Court that doctors must go to court to involuntarily feed patients with anorexia nervosa. ¹³ This issue was also highlighted during the recent public consultation regarding amendment of the MHA 2001. ¹⁴ An expert review of the MHA 2001 recommended that the definition of “treatment” be amended to encompass the broad interpretation noted in HSE v MX, and be more clearly defined. ¹⁵ This recommendation was reflected in the draft heads of a bill to amend the MHA, published in 2021. ¹⁶ This amends the definition of treatment to include “any relevant ancillary treatment and/or tests required for the purposes of safeguarding life or ameliorating a person’s condition”. The proposed changes to the MHA would amend s 60 (“Administration of Medication”), expanding the purview of this section from “medication” to “treatment”. The explanatory notes to this section explicitly state that nasogastric feeding would come under the revised definition of treatment. The proposed amendment also allows for transfer of detained patients to the emergency department before their admission to an approved centre if treatment of a “non-mental health related condition” is needed. This allowance would be useful in clinical practice, as there is currently little recourse to have a patient treated medically prior to being admitted involuntarily to an approved centre, which may be a stand-alone psychiatric hospital with limited facilities for medical treatment. This may be helpful in cases of anorexia nervosa, where patients may need to have medical treatment prior to being admitted to an approved centre. The criterion of “non-mental health related” could be an issue with anorexia nervosa, as the associated medical issues are a physical consequence of mental illness, and therefore it is somewhat ambiguous whether treatment falls under this definition.

Anorexia nervosa and the wardship system

The ambiguity surrounding the legality of using the MHA 2001 for compulsory treatment of anorexia nervosa in Ireland has resulted in the use of the wardship system to treat these patients. The wardship system is based on the Lunacy Regulation (Ireland) Act 1871, which is the main form of legislation regulating treatment of those lacking capacity. This archaic legislation will be replaced by the Assisted Decision Making (Capacity) Act 2015 (hereinafter the 2015 Act or ADMA), which is due to be fully commenced in Spring 2023.

Wardship is used when there is a question about a person’s capacity, which may be due to dementia, intellectual disability, brain injury, mental illness or a myriad of other disorders which affect one’s decision-making ability. In these cases, the courts intervene and appoint a representative to manage the person’s affairs and make decisions.

In 2021, there were six women and one girl in wardship for treatment of anorexia nervosa, including two women in the UK for treatment. ¹² Mr Justice Peter Kelly has reported that 30% of wardship applications for young people between 2015–2020 concerned anorexia treatment for young women. ¹²

Wardship offers certain advantages over the MHA 2001 when concerning treatment of anorexia nervosa. To use the MHA 2001, one must be admitted to an approved centre for treatment, which may not be medically appropriate in cases of severe anorexia where treatment needs a higher level of medical input. The lack of eating disorder units is also a factor, as Elm Mount Unit in St Vincent’s University Hospital is currently the only approved centre for adults that facilitates nasogastric feeding for patients with anorexia nervosa. ⁸ People with anorexia nervosa outside this catchment who need nasogastric feeding are likely to receive it in a general hospital, where wardship is the only legal option for compulsory treatment.

Issues with the wardship system

There are a plethora of issues with the current wardship system, as outlined in the 2017 report by The National Safeguarding Committee on wardship. ¹⁷ These issues include, inter alia, lack of legal representation for the ward, insufficient oversight, use of the status approach to capacity, inconsistent standard of medical reports, and overreliance on the wardship system.

In anorexia nervosa, for example, a ward may lack the capacity to make decisions about their healthcare or food intake but may have the capacity to make unrelated decisions about their financial affairs. The dichotomous view of capacity as being either wholly present or wholly absent has been criticised by the Law Reform Commission, and has fallen out of favour with legislators worldwide. ¹⁸

Anorexia and the Assisted Decision Making (Capacity) Act

The commencement of the 2015 Act will have significant consequences for the treatment of anorexia nervosa. As mentioned above, there is likely to be a continued need for an alternative to the MHA 2001 for cases of severe anorexia nervosa, even if an amendment to the MHA explicitly allows for nasogastric feeding. Given the lack of insight commonly associated with severe anorexia nervosa, one can envisage the need for decision-making representatives to be appointed by the court to facilitate treatment for a minority of patients. This process may have advantages over wardship, as decision-making power can be limited to the pertinent healthcare decisions, limiting the constraints on the person’s autonomy. It remains to be seen how this will work in practice however, and it is unclear how nasogastric feeding under restraint could be allowed for under the 2015 Act. While the Act has the potential to benefit patients by respecting autonomy, there is a risk that if some patients fall outside the remit of the amended MHA which allows for anorexia nervosa treatment, there will be no legal recourse for involuntarily treatment.

Conclusion

At present, the wardship system provides the only legal recourse for involuntary treatment of patients with anorexia nervosa. While the MHA 2001 may potentially cover treatment of eating disorders under its definitions of mental illness and treatment, this has never been tested in the courts. The Mental Health Commission regulations on restraint further limit use of nasogastric feeding on a compulsory basis. This is set to change with the proposed amendment to the MHA 2001, though this bill remains in the preliminary stages. The wardship system is soon to be abolished when the ADMA 2015 is commenced, which will codify the functional approach to capacity into law. While this may represent an advance in relation to respect for autonomy, it is unclear thus far how this will affect treatment of anorexia nervosa.