Te Whatu Ora - Health New Zealand, North Shore Hospital v P
[2025] NZHC 969
•24 April 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2025-404-833
[2025] NZHC 969
BETWEEN TE WHATU ORA – HEALTH NEW
ZEALAND, NORTH SHORE HOSPITAL and MYTHILI JAYASUNDRAM
ApplicantsAND
P
Subject Person
Hearing: 14 April 2025 Appearances:
D Campbell and S M Mechen for Applicant J Bremner for the Subject Person
J Surgenor as Counsel to Assist the Court B and N P, Parents
Judgment:
24 April 2025
JUDGMENT OF LANG J
[on application for orders under s 10 of the Protection of Personal and Property Rights Act 1998]
This judgment was delivered by me on 24 April 2025 at 2.30 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors/counsel/parties:
Ms M L Mechen, Te Whatu Ora – Health New Zealand, Waitemata/D Campbell, Dentons Kensington Swan, Auckland
Ms J L Bremner, Base Law Ltd, Clevedon Ms JEC Surgenor, Barrister, West Auckland Mr B and Mrs N P, Auckland
TE WHATU ORA – HEALTH NZ, NORTH SHORE HOSPITAL and JAYASUNDRAM v P [2025] NZHC 969
[24 April 2025]
[1] P is 26 years of age. She has spent large portions of the last seven years in hospital for treatment of a variety of health issues. In this proceeding the applicant, Te Whatu Ora — Health New Zealand, seeks personal orders under s 10 of the Protection of Personal and Property Rights Act 1998 (the Act). It seeks orders to ensure P receives treatment to maintain adequate nutrition and to safeguard her care and welfare. The orders would permit P’s clinicians to provide her with medical care and treatment, including nutritional support, and all necessary interventions and treatments to preserve her life.
[2] P opposes the orders being made. She does not want any treatment being administered against her will. She now wishes to let nature takes it course even if that ultimately results in her death.
[3] The proceeding was originally commenced in the Family Court but was subsequently transferred by consent to this Court given the important issues that it raises.
Background
[4] P has encountered issues with nutritional intake since at least 2014. From the outset P and her parents have been of the view that she suffers from an illness called gastroparesis and that this was untreatable. They have requested palliative care since at least 2018 even though there has never been any evidence that P suffers from a terminal or non-treatable medical illness. P and her parents have never accepted that there is a psychological or psychiatric component to her clinical condition.
[5] However, the core diagnosis for P is factitious disorder. This is a mental health condition in which the sufferer consciously self-induces, feigns, or exaggerates physical or psychiatric symptoms for the purpose of receiving care and attention in a medical setting. The disorder affects P’s insight and decision-making and compromises her decisions with respect to treatment and self-care.
[6] Factitious disorder cannot be treated by medication. Rather, it requires therapy and a willingness by the sufferer to engage and develop insight into the disorder. This is the only way in which the sufferer can move forward. To date, however, P has never
acknowledged the correctness of her diagnosis. She has therefore refused to engage in any kind of psychological therapy to address her underlying issues.
[7] P has a complex medical history. This led to the Family Court first being asked to make orders under the Act in 2018. At that time the Court noted P had experienced a number of health crises in her young life with an original diagnosis of anorexia nervosa. This was subsequently revised to a diagnosis of gastroparesis with secondary nutritional depletion and starvation status. The psychiatric diagnosis was disordered eating, in the context of a somatoform disorder with a focus on gastrointestinal symptoms that had no biological basis. She also had a co-morbid diagnosis of epilepsy and chronic pain. In addition, she suffers from low grade anxiety and is on the autism spectrum.
[8] P has been subject to personal orders under the Act since interim orders were first made on 9 November 2018.1 Following a hearing on 29 November 2018, final personal orders were made on 18 December 2018.2 These permitted health professionals to provide her with medical treatment including the provision of nutrition. Since the initial orders were made they have been amended or extended on eight occasions.
[9] The most recent orders expired on 27 October 2024. At that stage P’s decision- making had improved to the extent that a further extension of the orders was not sought. Her interactions with the treating team caring for her physical conditions had also improved. Treatments and medical interventions had reduced to the point where P was able to have periods residing in the community living independently with support. However, in mid-December 2024, following a collapse at home, she was re-admitted to North Shore Hospital, where she has remained.
[10] During this most recent admission P has undergone over 30 surgical interventions as she repeatedly developed infections. Early this year P started to limit her nutrition. She has also declined to receive any ongoing intervention with respect
1 Sundram v P [2018] NZFC 9057. The orders took effect on 12 November 2018.
2 Sundram v P [2018] NZFC 9815. The orders took effect on 20 December 2018.
to surgery or medical treatment. However, she continues to receive medication for pain relief and nausea through her nasal tubes.
P’s current condition
[11] A useful description of P’s current condition is contained in the submissions made to the Court by Ms Surgenor, counsel appointed to assist the Court. She visited P at North Shore Hospital on 8 April 2025 in the company of Ms Bremner, P’s long- time Court-appointed counsel.
[12] Ms Surgenor reports that P has a room to herself. The curtains are drawn because the light hurts her eyes. She said that the room was malodorous because P declined to be bathed. Apart from family visits on the weekend, she is currently very isolated.
[13] Ms Surgenor says that P is very emaciated and is too frail to have physiotherapy. She is totally bed-bound and does not partake of any exercise.
[14] P told Ms Surgenor that her long-term residence in the hospital was not, for her, a life. She has consented to the administration of medication for pain relief and nausea using her nasal tubes. Until November 2024, she also used tubes for feeding purposes. She has not been fed by tubes since her return to hospital in December 2024. P told Ms Surgenor that she tries to eat and has met with a dietician to seek advice. However, she is only able to eat foods such as mashed potato, and this makes her ill.
[15] P is completely dependent on others for assistance and does not even have sufficient strength to push her body up in bed. P said that she does not want to be under the control of other people. In particular, she does not want to undergo any further surgical interventions to clean her wounds. She does not wish to have her treatment dictated by others, and prefers to let nature takes its course. She was aware of her current health issues, including low potassium levels, but has not had any recent infections.
[16] P told Ms Surgenor that she was forced to have psychotherapy in the past but it did not help, and she would not be prepared to do it again. She said she had thought
about what death means and has spoken to hospital personnel about it. She said she would explore having grief counselling along with her father to deal with these issues. However, she is not suicidal and does not seek an assisted death.
[17] P said that her parents have accepted her decision not to consent to further treatment and are helping her through the present process. P talked about her previous aspirations, including the fact that she had been accepted to study nursing. When Ms Surgenor asked P if she thought that might be an option in the future if she accepted treatment, she responded, “No way, I’m far beyond that point”.
Issues
[18]I am required to determine the following issues:
(a)Does jurisdiction exist for the Court to make the orders sought?
(b)If so, should the Court make orders under s 10?
(c)If not, should the Court provide comfort to those who will be responsible for looking after P in the future?
Relevant principles
[19]The applicant seeks personal orders under s 10 of the Act.
[20] For the purposes of s 10, every person is presumed to have capacity to understand the nature, and foresee the consequences, of decisions in respect of matters relating to his or her personal care and welfare; and to communicate decisions in respect of those matters.3 This presumption may be displaced, at which point the Court may make personal orders under s 10.
[21]The Court may only make orders under s 10 in relation to a person who:4
3 Protection of Personal and Property Rights Act 1988, s 5.
4 Section 6(1).
(a)lacks, wholly or partly, the capacity to understand the nature, and to foresee the consequences, of decisions in respect of matters relating to his or her personal care and welfare; or
(b)has the capacity to understand the nature, and to foresee the consequences, of decisions in respect of matters relating to his or her personal care and welfare, but wholly lacks the capacity to communicate decisions in respect of such matters.
[22] Under s 6(3), the fact that the person in respect of whom the application is made has made a decision that a person exercising ordinary prudence would not have made given the same circumstances is not in itself sufficient grounds for the exercise of jurisdiction.
[23] The threshold question in any case in which orders are sought under s 10 is therefore whether the presumption of competence has been displaced. Orders may not be made under s 10 in the present case unless P lacks, wholly or partly, the capacity to understand the nature, and to foresee the consequences, of her decision to decline treatment.
[24] In Re FT, Judge P Boshier articulated four factors that are likely to be important in determining whether a person has capacity to make relevant decisions:5
(a)The ability to communicate choice.
(b)Understanding of relevant information.
(c)Appreciation for the situation and its consequences.
(d)Manipulation of information, in other words, the ability to follow a logical consequence of thought in order to reach a decision.
[25] Once the presumption of capacity is displaced, and the jurisdiction to make orders under s 10 is established, the Court must go on to consider the principles that should guide its decision on whether consent should be given to the proposed treatment orders.
5 Re FT (DC, Auckland) PPPR 68/94, 11 January 1995.
[26] The long title to the Act states that the Act is to provide for the protection and promotion of the personal and property rights of person who are not fully able to manage their own affairs. Section 9 provides that the Court is to determine the question of whether an order is to be made, and (if so) what kind of order, having regard to the primary objectives set out in s 8 as follows:
(a)to make the least restrictive intervention possible in the life of the person in respect of whom the application is made, having regard to the degree of that person’s incapacity:
(b)to enable or encourage that person to exercise and develop such capacity as he or she has to the greatest extent possible.
[27] In KR v MR, a personal order was sought to terminate the pregnancy of a disabled woman and to sterilise her.6 Miller J referred with apparent approval to the factors identified by Judge Boshier in Re FT. He also noted that the welfare of the subject person lay at the heart of the jurisdiction under the Act. In exploring what he called the “welfare principle” he said that:
As the cases illustrate clearly, the welfare principle is capable of being viewed from a range of perspectives. It is susceptible to prevailing social norms and the personal values of the decision maker. It is not an objective test and its workability depends on informed fact finding and the wise exercise of discretion. This point is equally true of decisions made under s 10 of the Act because intervention is directed to securing the welfare of the person in respect of whom the decision is made. The principal objectives also quite plainly envisage that there may be “secondary” objectives, which are unspecified . Nonetheless, from the point of view of the person in respect of whom the decision is being made, the principal objectives are a surer guide to the exercise of the decision maker’s discretion than is a general appeal to the welfare principle.
[28] In NA v LO, Judge M N E O’Dwyer, was guided by the approach taken in KR v MR and accepted that it is a secondary objective of the Act to determine the welfare of the subject person in respect to the decision that is to be made.7 Drawing on that decision, she also accepted that “where a person’s view can be ascertained with reasonable certainty, they should be afforded great respect although they are not automatically determinative”.8
6 KR v MR [2004] 2 NZLR 847 at [63].
7 NA v LO [2021] NZFC 7685 at [47].
8 At [51].
Does jurisdiction exist to make the orders sought?
The situation in 2018
[29] The question of jurisdiction to make orders under the Act turns on whether P has the necessary capacity to be able to decline to receive further medical and nutritional treatment in the future. This is the same question that was before the Family Court when an application for personal orders was first made in 2018. On that occasion the Family Court directed that a report be prepared by Dr Chris Kenedi, a psychiatrist and internal medicine physician. Dr Kenedi prepared this in the capacity of an assessing clinician as opposed to a treating clinician. His task was to undertake an assessment of P in order to make recommendations about her care and recovery. The resulting report provided the Family Court with a comprehensive medical and psychiatric history that informed the decision the Court was required to make.
[30] Dr Kenedi provided a diagnosis of somatic symptom disorder rather than anorexia or an eating disorder. He did not find that P’s condition satisfied the criteria for gastroparesis and instead favoured a diagnosis of personality disorder in the form of factitious disorder together with complex post-traumatic stress disorder.
[31]On the issue of capacity, Dr Kenedi noted:
The key issue is that on most issues she clearly has full capacity. However in regards to her healthcare decisions she exhibits very poor capacity due to above diagnoses and ongoing family influences. The pattern of poor decisions is life threatening (she has left the hospital against medical advice, discontinued care, requested palliation for a treatable condition), and appears to have no insight (and is defended and resistant to input) around the basis for her condition. Therefore I think she is impaired around her ability to understand the nature and consequences of her situation. The fact that she can intermittently agree when in a constrained and boundaried situation is negated by the underlying diagnostic pattern and her previous extensive maladaptive behaviour without insight into consequence.
[32] Judge A P Goodwin found that jurisdiction existed to make orders under the Act.9 In doing so he cited the above passage from Dr Kenedi’s report.10 He also referred to the fact that Dr Frederick Sundram, P’s treating psychiatrist, had similarly
9 Sundram v P, above n 2, at [19].
10 At [17].
found that P lacked capacity when it came to the consequences of decisions about her medical treatment.11 Dr Kenedi’s report recorded that Dr Sundram’s assessment was that:
Overall, P demonstrated decision-making capacity with regard her ongoing care and future care that might be required in the short-term but not in relation to omitting care in the longer-term. P has not thought through and weighed up what her care would need to be beyond a 2-week timeframe after leaving hospital and from the discussion around dying, passive/assisted dying and palliative care she is unclear about what this entails.
[33]Judge Goodwin then concluded:12
I find jurisdiction established. P remains a young lady who does not appreciate her situation and its consequences, in that she does not foresee the consequences of those decisions with regard to her medical care. I have listened carefully to what P has said to me, but the opinion of two experts is clear on her lack of capacity on medical decisions.
[34] As I have already noted, over the following five and a half years the Family Court extended the orders on eight further occasions. On each of these it proceeded on the basis that P still lacked capacity to appreciate her medical situation and its consequences. However, the issue of P’s capacity has not been examined in any depth since the initial application in 2018.
The situation in 2025
[35] The applicant adduced evidence from three health professionals at the hearing of the present application. These comprised Dr Siraj Rajaratnam, Dr Mythili Jayasundaram and Dr Aram Kim. Dr Rajaratnam is the senior medical officer in general surgery at the North Shore Hospital and has been responsible for P’s care since December 2021. Dr Jayasundaram is a consultant psychiatrist who has been involved in her care since 2018. Dr Kim is also a consultant psychiatrist, but he has never been involved in P’s care. His involvement has been limited to providing an opinion as to her capacity for the purposes of the present application.
[36] All three health professionals acknowledged that P has the ability to understand the decisions she is currently making about her health care and the likely consequences
11 At [18].
12 At [19].
of those decisions. She has the capacity to make specific decisions about particular medical interventions in the sense that she can understand the information she is given about these and knows the likely consequences of permitting them to be undertaken. She can also communicate her choice to those who are seeking her consent to undertake the procedures.
[37] However, all three of the health professionals are concerned, or are not convinced, as to whether she has the capacity to fully understand the nature of the underlying affliction that has resulted in her requiring medical treatment. Although they approached this issue from slightly different perspectives, they each placed significance on P’s determination to receive palliative and end-of-life care rather than seek treatment for her factitious disorder diagnosis. They said this may have been appropriate if she was suffering from a disease or illness for which there was no cure as P and her parents firmly believe to be the case. However, P does not suffer from this type of ailment. Rather, her issues have a psychological or psychiatric component that can only be addressed through psychotherapy, a process she is not willing to consider.
Analysis
[38] The issue of capacity must be approached with real care. An overly liberal approach to findings of incapacity in applications brought under s 10 has the potential to override or undermine the right to autonomy of choice when it comes to medical treatment. A person’s autonomy is generally given substantial weight by courts, even where death may result.13 This is enshrined in s 11 of the New Zealand Bill of Rights Act 1990 (NZBORA), which provides that every person has the right to refuse to undergo any medical treatment. It also necessarily overrides the presumption of competence contained in s 5 of the Act.
13 In Re T (Adult: Refusal of Treatment), when discussing the conflict that exists between the interests of a patient and the society in which they live, Lord Donaldson MR said: “The patient’s interest consists of his right to self-determination – his right to live his own life how he wishes, even if it will damage his health or lead to his premature death. Society’s interest is in upholding the concept that all human life is sacred and that it should be preserved if at all possible. It is well established that in the ultimate the right of the individual is paramount.” See Re T (Adult: Refusal of Treatment) [1993] Fam 95 (CA) at 112.
[39] In the United Kingdom, it has been held that a person may refuse medical treatment regardless of whether the reasons for doing so “were rational or irrational, unknown or even non-existent”.14 Where a person suffers from a disability, this must be sufficient to deprive the person of the capacity to give informed consent to medical procedures.
[40] By way of example, in Re C (Refusal of Medical Treatment), a person who suffered from schizophrenia was diagnosed as having gangrene in his right foot.15 His solicitor sought an undertaking from the hospital where he was being treated that it would not amputate his leg under any circumstances. When this was not forthcoming, the patient applied for an injunction restraining the hospital from amputating the leg without his consent. The hospital argued that the patient’s schizophrenia had removed his capacity to refuse consent to the amputation of his leg. Thorpe J held that the issue to be decided was whether it had been established that the patient’s capacity was so reduced by his chronic mental illness that he did not understand the nature, purpose and effects of the proposed treatment. Applying that test, the Court found that the presumption of capacity had not been displaced as the patient still understood and retained the relevant treatment information, believed it in his own way and in that same fashion arrived at a clear choice.16
[41] Similarly, in Re JT (Refusal of Medical Treatment), a 25 year-old woman with mental disabilities, including learning difficulties and “behavioural disturbance” developed kidney failure.17 Eleven attempts were made to provide dialysis, with the patient resisting most of them. She then refused all other treatment. Her clinicians considered that there was no feasible alternative treatment and the only option would be to physically restrain her. The patient had consistently told doctors and psychiatrists that she objected to dialysis and wanted to die. The question for the Court was whether she had sufficient capacity to make this decision. The Court found that, notwithstanding her disorder, the patient was capable of comprehending and retaining information, believing the information, and weighing it in the balance to make a choice. The Court ultimately found that she understood the purpose for which her
14 Re T (Adult: Refusal of Treatment), above n 13, at 115.
15 Re C (Refusal of Medical Treatment) [1994] 1 FLR 31 (Fam).
16 At 36.
17 Re JT (Adult: Refusal of medical treatment) [1998] 1 FLR 48 (Fam).
treatment was required and the consequences of a refusal to continue it. The Court went on to note:18
It is in general terms a criminal and tortious assault to perform physically invasive treatment without a patient's consent, and a mentally competent patient has an absolute right to refuse to consent to medical treatment for any reason, rational or irrational, or for no reason at all, even where that decision will lead to his or her own death. In my judgment, it follows that notwithstanding her mental disabilities, the finding which I make that [the patient] is competent to make treatment decisions is effectively determinative of the case.
[42] In the present case the critical decisions for which P was required to have capacity were those where she declined further medical treatment and declined to receive supplementary nutrition administered through her nasal tubes. The evidence establishes that P still believes she is terminally ill because of a physical disease or illness that the health professionals have been unable to treat. She has obviously based her decisions on this erroneous belief. Further, she is unwilling or unable to countenance the possibility that her belief may be incorrect. As I have already observed, these factors appear to underpin the concerns expressed by the health professionals as to her capacity.
[43] However, the fact that a person refuses to accept a particular diagnosis does not mean they lack capacity to make decisions about the treatment they are to receive. A person may validly agree to, or refuse, medical treatment even where they do not accept the diagnosis that has led to the offer of the treatment in question. The critical issue is whether they truly understand the nature, purpose and effect of the proposed treatment.
[44] On behalf of the applicant, Mr Campbell accepted that P’s factitious disorder is not sufficiently severe to amount to a “mental disorder” in terms of the Mental Health (Compulsory Assessment and Treatment) Act 1992. Nor did he argue that it prevents her from understanding the nature of the medical and nutritional procedures that her clinicians wish to undertake. She has had sufficient experience of these in the past to know exactly what they entail. Her past experiences similarly enable her to understand the effects that these are likely to produce for her.
18 At 51.
[45] Importantly, P has consistently confirmed that she has made her decisions in the knowledge that they may ultimately result in her death. Further, she knows that treatment and nutrition will keep her alive. This means she understands the gravity of the consequences that her decisions may produce. This appears to be a significant change in circumstances from 2018. At that time, as the passage set out above at [33] demonstrates, Judge Goodwin considered P did not appreciate her situation and its consequences, and that she did not foresee the long term consequences of her decisions with regard to her medical care.
[46] Further, the health professionals appear to agree that she has the necessary capacity to be able to validly accept or decline particular forms of treatment. She understands why the treatment is being offered, what it entails and the likely consequences of receiving and not receiving it. I see no logical distinction in this context between her capacity to give or refuse consent to a single procedure and a series of separate procedures. If she can validly give or refuse consent to one procedure there appears to be no logical barrier to her being able to do so for them all.
[47] When these factors are taken into account I do not consider the disorders from which P suffers have removed, either wholly or in part, her capacity to make decisions regarding the nutritional and medical treatment she is likely to be offered. I therefore consider she still possesses the necessary capacity to make her decisions. This means the applicant has not rebutted the presumption contained in s 5 of the Act. Jurisdiction does not presently exist for orders to be made under s 10 of the Act.
[48] In case I am wrong on this issue, however, I will briefly consider whether it would have been appropriate to make orders under s 10 in any event.
Should orders be made if jurisdiction exists?
[49] As noted, if jurisdiction exists to make orders under the Act the Court nevertheless has a discretion as to whether to make them. This flows from the fact that s 10 of the Act states that the Court “may” make orders.
[50] When Judge Goodwin made the first set of final orders in 2018, he was clearly influenced by the fact that P’s health had improved whilst earlier interim orders were in place. In reaching the conclusion that orders were appropriate the Judge observed:19
[24] The evidence given by Dr Sundram, and in particular by Dr Raos spoke of the clear benefits in P's treatment since the interim orders were instigated. In particular, Dr Raos says that the increased feed rates are making real progress for P and that the 1:1 watch is providing invaluable data for diagnosis as well as providing ongoing monitoring and adherence to the treatment plan. It is apparent that a major step with P's treatment will be the continued de-medicalisation, and in particular the removal of the NJ [naso-jejunal] line20 and the NG [naso-gastric] tube. Orders, including the 1:1 watch will enable that process to proceed and to allow continuous monitoring during this challenging time.
[25] I listened carefully to P's objections to the order and in particular to the 1:1 watch, which I know has been an ongoing source of great concern to her. I know she considers it an imposition that breaches her rights, imposes an unnecessary intrusion, causes her profound stress and is unwarranted. I have heard P when she says that she will comply with all other aspects of her treatment, and I understand her reasoning about her emotional reaction to medical requests being interpreted as rejection, when they are not meant to be so.
[26] However, the improvement in P's health appears undeniable, and the improvement cannot be ignored. The question I have to ask myself is what will happen if the orders are removed? I believe that will inevitably result in a slide back to how things were for P, and the treatment team prior to the making of orders. Once again, the treatment plan and its execution will be exposed to ongoing negotiations. Consent at every step will be required, the ground of that process is well trodden, and ultimately it was unable to resolve central conflict between P and her treatment team. That was the situation that led to the application and these hearings. In particular the proposed removal of the NJ line and NG tube is one fraught with difficulty. They will be contentious moves and one P will undoubtedly struggle to accept and endure.
[27] The orders have led to improvement for P and there must be significant risk to those improvements being compromised if the orders are removed. That indeed was highlighted by Dr Kenedi when he said:
"Based upon my evaluation, I think the risk of harm to self or others at this time is low while in the current situation. If the interim order was to be discharged at this time, I think there will be significant risk of factitious self- harm based on past behaviour and the lack of insight."
[28] Therefore, my decision is to make the orders sought. The goal of improving P's health, of her continued de-medicalisation and help for her to recover capacity are all reliant on the orders continuing at this time.
19 Sundram v P, above n 2.
20 This is a thin flexible tube that is inserted through the nose and extends into the jejunum, which is part of the small intestine. It is used to deliver fluids, medication and nutrition when a person cannot tolerate food or fluid in their stomach.
[51] Sadly, the progress P appeared to be making last year ended when P was re-admitted to hospital in December 2024 and began to decline further treatment. By this stage the final extension of the orders made in the Family Court had expired two months earlier.
[52] As Mr Campbell also pointed out, the last five and a half years have been marked by several notable features. First, P has spent very lengthy periods of time in hospital. By his calculations this amounts to a total of 1,558 days. On two occasions she has been in hospital continuously for periods of more than 12 months. Each of her six admissions to hospital has exceeded one month in duration.
[53] It has also been necessary for the scope of the orders to be broadened over time to prevent P doing acts that are harmful to her own welfare. These have extended to encasing her arms in plaster to restrain her from re-opening surgical wounds. She has also had two fingers amputated because of harm that she caused to them.
[54] Notably, the health professionals are divided as to whether orders should be made at this stage. Dr Rajaratnam does not believe it to be appropriate. In a report prepared for the purposes of the hearing he points out that repeated efforts over several years to have P undertake psychotherapy to address her false beliefs about her condition have failed. He then observes:
Whilst the previous PPPR orders were in place, P suffered considerable distress and anxiety. In addition, in a practical sense, I do not believe we can force treatment upon her without either physical or chemical constraints. I do not feel that either of those are appropriate. Therefore, I cannot see that new PPPR orders will be helpful for her care.
[55] Dr Jayasundaram takes a different view. She says that P’s situation is unique and complex. She believes it would be in P’s best interests for orders to be made so that she can be cared for safely and with dignity. Dr Jayasundaram says she will do her utmost to encourage P to develop such capacity as she has to the greatest extent possible. However, she acknowledges that new orders could potentially undermine P’s sense of control. This may cause her to become distressed to the point where she may jeopardise her own care.
[56] Dr Kim did not express any view as to whether new orders would be appropriate.
[57] In determining whether to make orders under s 10 the Court is required to have regard to the primary objectives set out in s 8 of the Act. In the present case this means the Court must make the least restrictive intervention possible in P’s life having regard to the degree of her incapacity. It must also attempt to enable and encourage P to exercise and develop such capacity as she has to the greatest extent possible.
[58] Importantly, however, the underlying cause of P’s current condition is her factitious disorder. This is no doubt exacerbated by the other disorders the health professionals have identified. It is not possible to provide any form of intervention to address those issues because the initiative to undertake psychotherapy must come from
P. Without her commitment to this type of treatment any orders made by the Court would be wholly ineffective.
[59] It is also clear from the medical evidence that the most significant threat to P’s long-term health is lack of nutrition. She is not refusing to eat. However, at present she cannot eat much and what she does eat she tends to lose through vomiting. If the present trend continues, it seems likely that she will eventually be unable to sustain her bodily functions.
[60] This issue can obviously be addressed by force feeding P using the nasal tubes that are currently in place. This would provide her with sufficient nutrition to sustain her bodily functions indefinitely. Ironically, up until November 2024 P was actively seeking supplementary nutrition using this method in circumstances where her clinicians did not believe this to be necessary.
[61] However, this is an intrusive form of intervention and P is likely to be resistant to it. As Dr Rajaratnam notes, intervention of this type is likely to require some form of chemical or physical restraint. That would obviously be highly distressing for P. She is strongly focussed on being in control of her own welfare and will inevitably regard any new orders as being a major barrier to the autonomy she is seeking to achieve. If the clinicians are required to use chemical or physical restraint to
administer treatment, they are likely to diminish P’s dignity significantly in the process. This is the opposite of the outcome Dr Jayasundrum is seeking to achieve.
[62] If there was a realistic prospect that P was prepared to address her underlying issues, and had I found she lacked capacity, I would have been inclined to make the orders that the applicant seeks. This would enable P’s clinicians to provide her with sufficient nutrition and medical treatment to ensure she could take steps to help herself. That was obviously Judge Goodwin’s motivation when he made the initial orders in 2018. However, none of the health professionals has any optimism that P will eventually alter her present fixed beliefs regarding the cause of her condition. P’s death is not an inevitability, although there appears little prospect at this stage that she will engage in the psychiatric care that offers her the best hope of improving her disorder.
[63] Seven years have now passed since orders were first made and P is in no better condition than she was in 2018. In all likelihood her condition is now worse. This is not because of any shortcomings or deficiencies on the part of those who have been responsible for her care during this period. They have plainly done their very best for P in extremely challenging and confronting circumstances. However, she is now in a position where the Court would be required to choose between making orders that override P’s wishes in the hope of preserving a theoretical prospect of her living a fulfilling life, or allowing her the dignity of deciding for herself.21 As matters currently stand, P has decided that her best interests lie in letting nature take its course. I consider the Court should respect that decision given that she has made it after receiving nutrition and treatment over many years with little apparent accompanying long term benefit.
[64] These factors would have led me to conclude it would not have been appropriate to make orders under s 10 even if jurisdiction existed to make them. In fact, such orders may well result in a further prolonged period of suffering for P without addressing the underlying cause of her condition.
21 Airedale NHS Trust v Bland [1993] AC 789 (HL) at 830.
[65] In reaching that conclusion I would also be reassured by the fact that P knows that she needs to eat to maintain her nutrition. She also knows she can ask at any time to receive supplementary nutrition using the method she found acceptable in 2024. It is for her to decide whether she wishes to avail herself of this option.
[66] Further, P is not currently suffering from abscesses or infections. That may not be the case indefinitely, but I have already noted that the health professionals appear to accept that she has the capacity to make decisions about particular forms of medical treatment. It will be for her to decide whether to accept or decline treatment should the need arise in the future.
[67] The fact that I have found P has the necessary capacity to accept or decline treatment means it is unnecessary to consider Mr Campbell’s submissions about the comfort to be provided to those responsible for P’s care in the future.
Result
[68]The application is dismissed.
Lang J
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