0
The Administrative Court has handed down judgment in R (JJ) v Spectrum Community Health CIC [2022] EWHC 2440 (Admin), in which it considered the scope of a profoundly disabled prisoner’s right to autonomy in relation to his wish to be fed a diet of his choice. The Claimant was a serving prisoner who is paralysed from the neck down and has lost function in all four limbs. His disability meant he needed to be fed by a care team employed by the Defendant, which is the prison healthcare provider. It was agreed by all parties he had capacity to make his own decisions about his diet. He was assessed by two speech and language therapists to assess his request for a wider range of foods than those included in a soft food diet. The overall conclusion of these reports was that extending the range of foods provided to the Claimant (a) would lead to a high risk of him choking and (b) if this happened, it would be very difficult if not impossible for staff to be able to administer first aid to support a choking episode. Hence, extending the range of foods provided to the Claimant may well lead to the Claimant choking to death. The Claimant said he fully understood the risks but nevertheless wanted a wider range of foods (as opposed to a primarily liquid diet). He sought a declaration from the Court that it was lawful for the Defendant’s staff to give effect to his food choices and that his autonomy rights meant that the Claimant was obliged to do so. The Claimant, through his counsel, submitted that his right to autonomy, in the context of his inability to feed himself, meant the Defendant’s refusal to allow him to eat food of his choice was unlawful because it breached his human rights. The Defendant’s case was that the Claimant’s autonomy rights did not extend to imposing decisions on others, and that there was a real risk that staff would face a risk of criminal prosecution or regulatory sanction if they fed him foods which led to his death. The Defendant pointed out that “consent” – even informed consent - was not a defence the various regulatory offences to which it would be exposed if the Claimant died after receiving unsafe care. What did the court decide? The Court considered the case law on autonomy, which was described as a “fundamental principle of the common law”. This was a person’s “freedom to decide what shall and shall not be done with their body”; or “a right to choose how he should live his own life”. There are limits, such as it not applying where a person invites another person to end the patient’s life by active means. It went on to consider the relationship between the Claimant’s autonomy and that of his carers. The Judge decided the case law shows the right to autonomy does not entitle the patient to insist on receiving a particular medical treatment regardless of its nature (R (Burke) v GMC [2005] EWCA Civ 1003); and a patient cannot demand a medical professional administer a treatment which the medical professional considers is adverse to the patient’s clinical needs (NHS Trust v D [2000] 2 FLR 677). In the present case, the Court accepted the Defendant’s submission that, if a staff member gave the Claimant food which choked him and led to serious or fatal injury, it is not fanciful to suggest the member of staff be subject to criminal and/or regulatory action. Given the varying nature of the Claimant’s condition, it could not be expected a prosecuting or regulatory authority could indicate when it would take action. In this light, the Court held it was not unlawful for the Defendant to refuse the Claimant treatment which it believes is contra-indicated, was adverse to the Claimant’s clinical needs and exposed the Defendant and its staff to a risk of prosecution or regulatory action. The Court also dismissed an overarching argument that, in reaching its position, the Defendant had placed too much weight on the views expressed by the therapists. It considered the Defendant’s position was genuinely held and rational. The Claimant also argued the Defendant was acting contrary to his Convention rights and in breach of the Equality Act 2010. Both of these arguments were rejected. For similar reasons as in relation to the right to autonomy, any interference with article 8 was lawful proportionate and justified; and adjusting the Claimant’s diet was not a reasonable adjustment. The Claimant’s application for permission to appeal was refused by the High Court. David Lock KC and Leon Glenister acted for the Defendant, instructed by Paul Allerston and Catherine Egan of Hill Dickinson.
