Capacity and Treatment Refusal: How law should deal with the case of Anorexia Nervosa

HDR Candidate: Samuel Boyle

Milestone: Thesis Review

Title: Capacity and Treatment Refusal: How law should deal with the case of Anorexia Nervosa.

Abstract: Dealing with treatment refusals in the case of anorexia nervosa (anorexia) has been described as the ‘hard case’ of capacity law. This is evidenced by the fact that there are two mutually inconsistent concerns about how capacity in the case of anorexia might be assessed: one that the test of capacity will not capture the ‘effects’ of anorexia, and so will incorrectly find people with the illness to have capacity.

The other is that people with anorexia will always be found to lack capacity to refuse its treatment, and that therefore someone’s right to refuse treatment will be determined by a psychiatrist’s diagnosis.

My research shows that it is the latter problem that has played out. Using a critical analysis of the role of capacity in the legal system, I explain how this problem has arisen, and how it can be dealt with. I show that the solution lies in close engagement with the individual whose capacity is being assessed, along with a more nuanced and sophisticated application of the law of capacity.