Feminising the (Legal) Framework: Law, the Patriarchy, and Anorexia

Hello, dear reader.

Welcome back and thank you for being patient with me. April can be brutal for all students, but particularly brutal for law students like myself as I find myself writing all day, yet little - if any - material feels suitable for this blog.

But maybe that doesn't have to be the case. Maybe, just maybe, you might like to read something that I've been working on. It is worth noting that this essay considers topics which might be triggering for some. If this is the case for you, please be compassionate with yourself.

A couple months ago I wrote an essay for a class that continues to linger in my mind. This essay deals with feminist themes related to anorexia given the court's abhorrent decision in a 2012 case; the judge applied the Mental Capacity Act 2005 to determine that it was in the defendant's best interests to be fed against her (expressed) wishes.

While the themes in this essay are deeply troubling, I think this essay gives a good look at how the court considers women living with mental illness. So, without further ado, I hope this essay invites you to think differently about our legal system.

I'd love to hear your thoughts on the topic.

xxV

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Feminising the Framework: How Traditional Patriarchal Values Inform the Court’s Perspective and Decision in A Local Authority v E

Introduction

In A Local Authority v E, the Court of Protection considered a 32-year-old woman living with severe anorexia nervosa (anorexia) and questioned whether it was against a patient’s best interests to receive life-sustaining, force-feeding treatment if the patient lacked capacity, but was perfectly aware of her situation.[1] On the facts, E began medical treatment for anorexia at age 15, and this endured throughout most of her adult life; the various treatments sustained minimal success and prior to the proceeding it was determined that death was imminent without further intervention.[2] In this case, Jackson J applied the Mental Capacity Act 2005 (MCA)[3] to determine that E ‘lacked capacity…and declared that it was in her best interests to be fed against her wishes’.[4]

However, the court’s decision and discussion of capacity and best interests tests under the MCA remains contentious.[5] As feminist scholar Beverley Clough argues, ‘courts have struggled to fully grasp the complexity of anorexia’.[6] This is because courts fail to adequately consider how gender mores inform legal and medical reception and treatment of anorectic women. Indeed, anorexia is a highly gendered condition that has and continues to predominantly affect women, given that more than 80 percent of persons living with anorexia in the UK are women.[7] Therefore, this essay will apply a feminist perspective to Jackson J’s decision in E to theorize that traditional, patriarchal values inform social, legal, and medical perspectives on female anorectics. This theory illuminates the gender-based complexities in E to reveal the way in which inherently gendered values frame the court’s discussion of a female anorectic’s capacity and best interests.

I. Feminism, Anorexia, and the Female Body

By definition, anorexia is a condition ‘marked by emaciation…in which loss of appetite results from severe emotional disturbance’.[8] Omitted from this definition lies the statistic that 80 to 90 percent of persons living with anorexia are women, mathematically inferring a deep-rooted gender component innate to the condition.[9] Ruth Fletcher, Marie Fox, and Julie McCandless observe the importance of feminist theory and particular consideration for the female body to illustrate ‘how gender dichotomies are embodied and naturalised through norms of femininity and masculinity’.[10] This section applies feminist theory to E to consider the way in which gender mores inform the social, medical, and legal frameworks guiding the court’s decision in Re E. Ultimately, feminist theory illuminates both ‘women’s subordinate position in society vis-á-vis men’ and the way in which legal and medical systems problematically address female conditions, specifically anorexia.

(i) The Historical and Social Dimension of Anorexia

Julie Hepworth and Christine Griffin argue that anorexia ‘was [first] constructed as an inherently female condition…which could develop from women’s supposedly irrational nature’.[11] Hepworth traces the historical origin of anorexia back to 1872 when Dr E.C. Laseque used the term ‘anorexie hysterique’ to describe his observations of young women engaging in ‘self-starvation’; one year later, in 1873 Sir William Withey Gull coined the term ‘anorexia nervosa’ to describe this same phenomenon.[12] Laseque and Gull’s writings on anorexia construe the condition as ‘a medical and moral condition associated with women and the feminine’.[13] This reflects the dominant philosophical belief from the late-nineteenth century stating that men and women possess different mental capacities by nature of their gender; men were associated with higher mental capacities synonymous with ‘reason and logic’ while women were considered highly emotional and intellectually subordinate to men.[14] Gull relied heavily on this gender ideology to ‘explain and understand anorexia’ as a product of ‘women’s supposedly inherent irrationality’.[15] While Gull’s description of anorexia as product of female irrationality reflects the dominant gender ideology governing his society at the time of his writings, Gull’s proposition illuminates the way in which social ideologies can inform medical discourse and perspectives on both anorexia and women living with this condition.

More than 140 years after Gull first wrote about anorexia in 1873, the Court of Protection considered E and questioned whether it was against E’s patient’s best interests to receive life-sustaining, force-feeding treatment if the patient lacked capacity, but was perfectly aware of her situation.[16] In this case, the court applied the capacity test under section 3(1) of the MCA and the best interests test under section 4(6) of the MCA to determine that E lacked capacity to make decisions for herself and that life-sustaining force-feeding treatment was in her best interests.[17] Feminist contention with Re E case is not necessarily related to the court’s application of the MCA or Jackson J’s legal reasoning.[18] Rather, feminists take issue with court’s overt oversight of femininity in E,and the legal and medical systems’ inability to adequately deal with women living with severe anorexia, a predominantly female condition. This raises concern related to gender (in)equality within legal and medical systems.

(ii) Gender (In)Equality and the Legal System

Carol Smart cites Catharine MacKinnon to argue that gender equality within the legal system does not necessarily afford women fairer legal treatment.[19] This is not due to the fact that courts intentionally apply legal tests differently to women; indeed, courts will apply the same capacity and best interests tests in cases concerning a man’s refusal to eat.[20] For example, in Avon and Wiltshire and North Bristol NHS Trust v WA, Hayden J determined that WA did not lack capacity and established that it was not in the patient’s best interests to receive nutrition and hydration against his will.[21] While WA and E examine similar issues, the main difference between these two cases lies in the defendant’s gender: WA concerned a man and E concerned a woman. It is challenging to consolidate WA and E because the defendant’s gender appears to ostensibly influence the court’s decision on whether force-feeding treatment is in the patient’s best interests. While the court in E recommended life-sustaining force-feeding treatment despite E’s express refusal of such treatment,[22] the court in WA stated that WA’s ‘refusal should be respected’.[23]

While E signed two advanced decisions to refuse further medical intervention, both declarations were considered legally ineffective. In 2011, E signed two advanced decision stating that ‘she did not want to be resuscitated or to be given any medical intervention to prolong her life’.[24] The first declaration was signed in July 2011 by E, and the second was signed in October 2011 by E and ‘assisted by her mother and her mental capacity advocate’.[25] This clearly exemplifies evidence of logic and rationality; both (masculine) traits favoured by the legal system. And yet, the court rendered both of E’s advanced decisions to refuse additional medical intervention legally ineffective. While Jackson J recognises that ‘E has thought a great deal about making an advanced decision about her medical treatment’, his refusal to give legal effect to these advanced decisions is troubling.[26] This paradoxical turn of events begs the question of whether the court would have respected E’s advanced refusal of treatment if she were a man. Given the decision in WA, there is reason to suspect that E’s refusal would have been accepted if she were a man.[27] While E’s advanced decisions may have remained unsuccessful regardless of her gender, it is significant to note that when an anorexic woman takes considerable care to make logical and rational decisions, her effort is admired but remains legally worthless.

Smart’s argument ostensibly suggests that overt gender inequality in the legal system may produce more favourable results for cases concerning women. In this context, gender inequality refers to the overt recognition of inherent differences between genders. Smart argues that ‘ideals of objectivity and neutrality which are celebrated in law are actually masculine values which have come to be taken as universal values’.[28] In other words, legal equality is inherently masculine. For Smart, ‘[t]o insist on equality, neutrality, and objectivity is thus, ironically, to insist on being judged by the values of masculinity’.[29] Applying Smart’s argument to E suggests that Jackson J may have decided the case differently if he took particular care to examine E through a feminist lens, thereby observing gender disparity. The court’s attempt to apply the MCA equally to men and women, insisting on neutrality, logic, and rationality, ultimately fails to account for the emotional complexities of the female body and the embodied experience of a woman living in a (man’s) world. Smart’s argument illustrates one reason why legal discourses on female anorexia fail adequately address the complexities of anorexia: the attempt to apply traditionally masculine values to the female body and women living with anorexia only illuminates the ostensibly ‘feminine’ features of the patient and her condition. The process of applying logic and rationality to a condition historically associated with female irrationality incessantly produces unfavourable results for anorexic women.

(iii)Gender (In)Equality in the Medical System

It is significant to recognise that E was primarily decided by men: Jackson J, a male judge, and Dr Tyrone Glover, a male psychiatrist and ‘expert in very severe eating disorders’.[30] Jackson J followed Dr Glover’s advice that ‘treatment which might return E to relatively normal life is available but has not so far been tried and that she should receive it’.[31] Given anorexia’s history as an explicitly feminine condition ostensibly produced by female irrationality, it is important to consider the way in which gender informs contemporary medical treatment of anorexia. While Smart argues that legal systems are products of traditionally masculine values, there is ample evidence to suggest that medical systems are also produced by similar principles. Arianne Shahvisi argues that ‘[m]edicine, as a site of social power, reflects the contours of power in society at large, and patriarchal values are prevalent in healthcare provision as a structural trend which is also mediated through injustices within individual encounters’.[32] As a result, traditional masculine values which govern patriarchal society extend into the medical sphere and situate female patients inferior to male patients.

Shahvisi points to one example of gender inequality in the medical system, specifically the fact that male patients’ health testimony is often accepted as true while ‘[w]omen’s health testimony is deemed to be less credible’.[33] Compounding this with the historical construction of anorexia as a female condition caused by irrationality and applying this theory to E illuminates the underlying patriarchal values that inform Dr Glover’s decision to order life-sustaining force-feeding treatment for E. On the facts, E’s anorexia has profoundly affected her physical and mental health.[34] Physically, she has had a hip replacement and suffers from osteoporosis, reduced mobility, and possible infertility; mentally, E will continue to endure lifelong emotional challenges with anorexia, alcoholism, and unstable personality disorder.[35] E expressed to Dr Glover that ‘she does not wish to endure further treatment’ and ‘showed him the scars on her abdomen from previous operations and insertions of tubes’.[36] This encounter gives the impression that E recognised her words would be discounted and relied on her bodily scars for physical, visible evidence of previously unsuccessful feeding treatments. However, Dr Glover did not choose to obey E’s wishes. This encounter demonstrates the troubling reality that health testimony is less compelling to medical practitioners when provided by female patients, which implies that Dr Glover may have accepted E’s wishes if she were a male patient. Considering the patriarchal underpinnings of the medical system, Dr Glover’s decision is not intentionally biased against E, but rather a result produced by the inherent gender inequalities which govern the medical system.

II. (Male) Capacity & (Female) Anorexia

E has received considerable criticism for its controversial and problematic’ role in shaping the court’s ‘absolute presumption’ that anorexic patients will always lack capacity under the MCA.[37] Section 2(1) of the MCA establishes that a person lacks capacity if they are unable to make a decision for themselves because of an impairment of, or a disturbance in the functioning of, the mind or brain’.[38] Courts apply the capacity test under section 3(1) to determine whether a patient lacks capacity.[39] The four-part capacity test under section 3(1) considers a person incapacitated if he or she is unable to: understand or retain information relevant to the decision; to use or weigh information relevant to the decision; or, to communicate their decision.[40] If the patient fails to satisfy any one of the requirements under the capacity test, the patient is rendered incapacitated and ‘unable to make a decision’ for himself or herself.[41] On the facts, Jackson J determined that E satisfied all elements of the capacity test except for section 3(1)(c).[42] For Jackson J, ‘E’s obsessive fear of weight gain makes her incapable of weighing the advantages and disadvantages of eating in any meaningful way’.[43] Hayden J reached a similar conclusion in WA where he determined that WA was incapable of using and weighing information subject to section 3(1)(c) of the MCA, thus WA failed to satisfy the capacity test.[44] On this premise, it appears that patients who refuse to eat will invariably fail the capacity test, regardless of their gender. Given the food-restrictive nature of anorexia, anorectic patients will invariably fail the capacity test by nature of the behaviour fundamental to the condition.[45]

However, the example that Jackson J used to support his finding of incapacity in E is significantly weaker than Hayden J’s examples considered in WA.[46]While Hayden J referred to multiple examples of WA’s capacity assessment,[47] Jackson J relies on a single, trivial conversation to determine E’s incapacity.[48]Jackson J demonstrated E’s failure to weigh information by referring to an incident in August 2011 when E ‘was described as smiling and laughing during a conversation, but when the question of weight gain and the achievement of a BMI of 16 was mentioned, she began to cry’.[49] Clough takes issue with this example, suggesting that this conversation ‘does not appear to have taken place within the context of a formal clinical capacity assessment’.[50] Moreover, E’s ostensibly sudden shift in demeanour infers that this shift occurs in different parts of a single conversation. It is likely that Jackson J chose this example to capitalise upon E’s mental instability to bolster his finding of incapacity by stating that E was ‘smiling and happy’ before suddenly crying.[51] While this sudden emotional shift supports Jackson J’s decision, this example does little to honour E’s intelligence, the same intelligence that Jackson J subsequently refers to when describing E as a ‘highly able and intelligent young woman’ with ambitions to pursue a ‘medical career’.[52]

There is reason to suspect that Jackson J used this example to specifically cast doubt on E’s capacity. Susie Orbach observes that anorexia is commonly understood as ‘the female’s refusal to be an adult’.[53] ‘If we examine the implications of this perspective’, Orbach writes, ‘we can see that it has two aims, both of which distinctly infantilize [sic] the woman’.[54] Firstly, infantilisation reduces the threat of the anorectic woman because ‘the meaning of her symptom is delegitimised [sic]’.[55] Secondly, and more importantly, infantilisation discounts anorexia as mere ‘unacceptable behaviour, to be dealt with summarily, and the sufferer’s opinions become discountable because, like herself, they are immature’.[56] By applying Orbach’s argument, it is clear that Jackson J’s example served its purpose: to infantilise E and her condition. On one level, Jackson J’s example trivialises the severity of E’s condition. On another level, Jackson J’s chosen example emphasises the importance of further medical intervention because E is unable reason as a ‘normal’ adult; her inability to feed herself and inability to manage her emotions are ultimately evidence suggesting that she cannot possibly possess the necessary capacity to make rational decisions for herself. Like an infant, E’s decisions must be made for her, and food fed to her.

More concerning is the way in which E’s failure to satisfy the section 3(1)(c) MCA informs future case law concerning anorectic patients. As Clough argues, ‘[i]t appears…that there is essentially an “absolute presumption” that an anorexia nervosa patient lacks the capacity’ make decisions regarding or refusing medical intervention.[57] Clough’s argument illuminates a key feature of Jackson J’s decision: E’s ‘obsessive fear of weight gain’ which makes her ‘incapable of weighing the advantages and disadvantages of eating in any meaningful way’ is a product of anorexia, rather than a feature exclusive to E’s individual case.[58] Thus anorexic patients are near guaranteed to fail the capacity test due to the nature of their condition. Subsequent case law has followed the decision in E, notably in L where King J stated that ‘Ms L lacks capacity…on the basis that she is unable to weigh up the risks and benefits of such treatment’ due to her ‘profound and illogical fear of weight gain’.[59] While King J did not order force-feeding treatment in L,[60] the court’s absolute presumption that anorexic patients do not satisfy the capacity test under section 3(1)(c) of the MCA illuminates the problematic repercussions of decisions based on a condition’s nature rather than on a patient’s individuality.

III. (Male) Best Interests & (Female) Anorexia

Following the Court’s finding of incapacity in E, Jackson J determined that it was in E’s best interests to receive life-sustaining, force-feeding treatment given the ultimatum that ‘[w]ithout treatment, E will die’.[61] The court applied the best interests test provided under section 4(6) of the MCA which states that persons entitled to determine what is in another person’s best interests must consider the ‘the person’s past and present wishes and feelings’, the ‘beliefs and values’ likely to influence the patient’s decision if capacitated, and ‘other factors’ likely to be considered by the patient if they were able to do so.[62] While section 4(1) of the MCA emphasises objectivity and neutrality when determining best interests, these characteristics reflect traditional, patriarchal male values. Section 4(1) of the MCA states that persons entitled to decide best interests for another must remain rational and objective; they must not make their decision based upon the patient’s ‘age or appearance’, ‘condition’, or ‘aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests’.[63] Despite the fact that the MCA uses male pronouns to include non-male bodies, the court’s attempt to remain wholly objective in their analysis of best interests is unsatisfying. As previously noted, Smart argues that ‘[t]o insist on equality, neutrality, and objectivity is thus, ironically, to insist on being judged by the values of masculinity’.[64] Applying this to E suggests that the court’s attempt to remain wholly objective does little to favour the female anorexic; her inherently gendered condition directly contrasts the masculine values which inform the court’s analysis of best interests. While Camilla Kong doubts that ‘one can abandon background prejudices and become truly “objective”’,[65] Jackson J’s attempt to maintain objectivity and neutrality throughout his discussion of E’s best interests inadvertently appeals to patriarchally male values.

This theory explains the ‘striking’ paradox between ‘the individuals who [knew] E best’ and ‘those in favour of life-preserving treatment [who] had met E only once or not at all’.[66] On the facts, E’s parents supported their daughter’s decision and determined that it was in E’s best interests ‘to be able to die with dignity in safe, warm surroundings with those that love her’.[67] However, Jackson J and Dr Glover opposed this view and concluded that ‘forcible feeding [was] in E’s best interests’.[68] While E’s parents display traditionally feminine values, appealing to their emotional tendencies and connections to this case, Jackson J and Dr Glover display traditionally masculine values praised by both the legal and medical system; their emphasis on neutrality does not reflect the feminine dimension central to this case. Although Jackson J technically applies the best interests test in accordance with sound legal reasoning and ethical medical advice, the system is problematically geared to disfavour the individual best interests of female anorectics by nature their gendered body and gendered condition.

Conclusion

In conclusion, this essay seeks to consider the inherent biases within these systems to illustrate how they operate in courts and ultimately inform the court’s decision in E, and in similar cases concerning anorexia. The court’s failure to adequately consider the way in which gender mores inform legal and medical reception and treatment of anorectic women results in Jackson J’s contentious decision in E. As previously noted, traditional, patriarchally male values govern social, legal, and medical perspectives on anorexia and female anorectics. These powerful gendered mores are seen most overtly through the legal and medical systems’ appreciation of traditionally masculine values, particularly objectivity and rationality when applying legal tests under the MCA. Ironically, however, the process of applying objectivity and rationality to cases concerning female anorexia produces inherently biased decisions by virtue of the gendered complexities of the condition. The court’s reliance on E’s visceral reaction to substantiate a finding of incapacity is to effectively penalize E for her emotionality, an integral part of her condition and her femininity. The process of applying (male) rationality to a condition historically associated with (female) irrationally only highlights the court’s failure to comprehend the complexities of the condition.

[1] A Local Authority v E & Others [2012] EWHC 1639 (COP). [2] ibid [3] Mental Capacity Act 2005 [4] E (n 1) [3]. [5] See, for example: The NHS Trust v L [2012] EWHC 2741 (COP). [6] Beverley Clough, ‘Anorexia, Capacity, and Best Interests: Developments in the Court of Protection Since the Mental Capacity Act 2005’ (2016) 24 MLR 434, 439. [7] Jane Morris and Sara Twaddle, ‘Anorexia Nervosa’ (2007) 334 BMJ 894. [8] ‘Anorexia, n’ (OED Online, OUP March 2011) <www.oed.com/view/Entry/8080> accessed 18 Jan 2022. [9] Morris (n 7). [10] Ruth Fletcher, Marie Fox, and Julie McCandless, ‘Women’s Embodiment: Analysing the Body of Healthcare Law’ (2008) 16 MLR 321, 331. [11] Julie Hepworth and Christine Griffin, ‘Conflicting Opinions? “Anorexia Nervosa”, Medicine and Feminism’ in Celia Kitzinger and Sue Wilkinson (eds) Feminism and Discourses: Psychological Perspectives (Sage 1995) [12] Julie Hepworth, The Social Construction of Anorexia Nervosa (Sage 1999) 26. [13] ibid 28. [14] ibid [15] ibid 29. [16] E (n 1). [17] E (n 1); MCA 2005, ss 3(1) and 4(6). [18] Clough (n 6); Kristy Keywood, ‘Rethinking the Anorexic Body: How English Law and Psychiatry “Think”’ (2003) 26 Int J Law Psychiatry 599. [19] Carol Smart, ‘The Woman of Legal Discourse’ in Carol Smart, Law, Crime and Sexuality: Essays in Feminism (Sage 1995) 32; Catharine MacKinnon, Toward a Feminist Theory of the State (Harvard UP 1989). [20] See, for example: Avon and Wiltshire Mental Health Partnership and North Bristol NHS Trust v WA and DT [2020] EWCOP 37. [21] WA (n 20). [22] See, for example: E (n 1) [20], [76], [77]. [23] WA (n 20) [102] (Hayden J). [24] WA (n 20) [102] (Hayden J). [25] ibid [26] E (n 1) [19]. [27] See, for example: WA (n 20) [102] (Hayden J). [28] Smart (n 18) 32. [29] ibid [30] E (n 1) [23]. [31] ibid [38]. [32] Arianne Shahvisi, ‘Medicine is Patriarchal, But Alternative Medicine is Not the Answer’ (2019) 16 Bioethical Inquiry 99, 101. [33] ibid [34] E (n 1) [23], [30]. [35] ibid [36] E (n 1) [77]. [37] Clough (n 6) 438. See, for example: L (n 5); A NHS Foundation Trust v Ms X [2014] EWCOP 35; D Wang, ‘Mental Capacity Act, Anorexia, and the Choice Between Life-Prolonging Treatment and Palliative Care: A NHS Foundation Trust v Ms X’ (2015) 78 MLR 871. [38] MCA 2005, s 2(1). [39] ibid, s 3(1). [40] ibid [41] ibid [42] ibid, s 3(1)(c). [43] E (n 1) [49]. [44] WA (n 20) [22]. [45] See, for example: L (n 5). [46] See, for example: WA (n 20)[22]. [47] ibid [48] E (n 1) [49]. [49] E (n 1) [49]. [50] Clough (n 6) 25. [51] E (n 1) [49]. [52] E (n 1) [75]. [53] Susie Orbach, Hunger Strike: The Anorectic’s Struggle as a Metaphor for Our Age (Routledge 2019) 4. [54] ibid [55] ibid [56] Orbach (n 53) 4. [57] Clough (n 6) 438. [58] E (n 1) [49]. [59] L (n 5) [52]-[53]. [60] L (n 5). [61] E (n 1) [116]. [62] MCA 2005, s 4(6). [63] ibid, s 4(1). [64] Smart (n 18) 32. [65] Camilla Kong, ‘Beyond the Balancing Scales: The Importance of Prejudice in Dialogue in A Local Authority v E and Others’ (2014) 26 Child and Family LQ 216, 228. [66] ibid, 234. [67] E (n 1) [38]. [68] ibid