In a recent case involving an application to permit naso-gastric feeding of a 12-year-old girl, the High Court considered how to resolve an apparent conflict between the Code of Practice to the Mental Health Act 1983 and common-law authorities around consent to treatment for children.

The girl had been diagnosed with anorexia nervosa and depression and had been admitted to hospital, where she was being fed via a naso-gastric tube. On occasion it had been necessary for medical staff to restrain her in order to feed her or prevent her from harming herself.

The Court had previously approved a consent order declaring that the NHS trust responsible for her care was entitled to rely on her parents’ consent in treating her. However, the trust contended that, while common-law authorities established that it was lawfully permissible to rely on parental consent for treatment and restraint, the Code suggested that it was not lawfully permissible in the circumstances of the case. The Court was asked to resolve the issue.

The Court found that, although the case technically fell outside the scope of the Code as the girl had not been detained under the Act, the trust was correct in its assertion that it was effectively bound by the Code, and it would be incorrect to regard the case as being subject to different principles.

It was submitted that practitioners had to be guided by developing case law, and the Court agreed that the Code should follow judicial precedent. Noting that the primary purpose of the naso-gastric tube feeding was to preserve life, the Court agreed with the trust’s submission that the guidance in the Code that there are limits on the decisions parents can take in relation to treatment of children under 16 was erroneous. Where the parents and those providing treatment were in agreement, the parents could provide consent.

While the Court concluded that a declaration that it was in the girl’s best interests to receive treatment, and to be restrained if needed, was unnecessary, it nonetheless regarded it as appropriate in the particular circumstances to make a declaration to that effect. The Court expressed its hope that the girl was showing signs of improvement.