R (on the Application of JJ) v Spectrum Community Health CIC
| Jurisdiction | England & Wales |
| Judge | Lady Justice King,Lord Justice Lewis,Lord Burnett of Maldon |
| Judgment Date | 25 July 2023 |
| Neutral Citation | [2023] EWCA Civ 885 |
| Court | Court of Appeal (Civil Division) |
| Year | 2023 |
| Docket Number | Case No: CA 2022 002053 |
and
[2023] EWCA Civ 885
Lord Burnett of Maldon,
LORD CHIEF JUSTICE OF ENGLAND AND WALES
Lady Justice King
and
Lord Justice Lewis
Case No: CA 2022 002053
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
HHJ Sephton KC
Royal Courts of Justice
Strand, London, WC2A 2LL
Aswini Weereratne KC and Leonie Hirst (instructed by SL5 Legal/Tuckers Solicitors) for the Appellant
Leon Glenister (instructed by Hill Dickinson LLP) for the Respondent
Alex Ruck Keene KC (Hon) (instructed by DAC Beachcroft LLP) for the Intervenor (written submissions only)
Hearing date: 28 June 2023
Approved Judgment
This judgment was handed down remotely at 11.00am on 25 July 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
This is an appeal from a decision of HHJ Sephton KC (‘the judge’) on 5 October 2022 to dismiss the appellant's (‘JJ’) claim for judicial review in respect of the respondent's (‘Spectrum’) refusal to feed him, a quadriplegic prisoner, certain foods of his choice. Spectrum decline to give JJ snacks in the form of boiled sweets, biscuits and crisps (‘boiled sweets’) in the interests of safety and in circumstances where to do so would, they believe, risk exposing their staff to criminal or regulatory proceedings should JJ come to harm as a consequence of eating foods which are not within his prescribed soft diet (‘Level 6 diet’).
The issue before the court is whether a medical professional is acting lawfully in restricting the foods which are to be offered to a patient because, in their medical opinion, to do so would expose the patient to a high risk of choking and aspiration which might lead to his death.
Put the other way around, is a patient entitled to demand medical treatment which is not clinically indicated and therefore not offered to him by the doctor?
The judge, when refusing permission to appeal, observed that ‘medical professionals could not be compelled to administer treatment that they believed to be adverse to the patient's clinical needs and the law requires me to respect their opinions (“medical autonomy”); and that a court should not make a declaration that purports to decide an issue of criminal liability for future events’.
The judge accordingly declined to make the declarations, which had been sought in the following terms:
i) A declaration that the Defendant's refusal to allow the Claimant to choose his diet is unlawful.
ii) A declaration that it is lawful for the Defendant's staff to give effect to the Claimant's food choices.
In my judgement, the judge was right to dismiss the judicial review for the reasons he gave in his judgment and accordingly I would dismiss the appeal for the reasons set out below.
Background
JJ is serving a lengthy determinate sentence of imprisonment, the custodial period of which will end on 28 May 2027. He is cared for in the Healthcare Wing at HMP Liverpool by the staff of Spectrum, a community interest company which provides NHS-funded healthcare services to prisoners. Spectrum is registered with the Care Quality Commission (“CQC”) and is regulated by the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (“the CQC Regulations”).
As a result of a rare genetic condition, X-linked hypophosphatemia (“XLH”), JJ is quadriplegic and without teeth. While his cognitive and communication skills are unimpaired, his physical capacity is limited to pushing a button with one finger. Since 2016 he has been bed-bound and wholly dependent on care staff for all his personal cares and for feeding. He is nursed in a supine position.
As a consequence of JJ's condition, eating food poses a risk of death or serious injury by choking or aspiration. Some foods pose a more significant risk than others. Until 2021, JJ ate a mixed diet of soft and non-soft foods. Meals would be sent to his cell and he would decide whether he was capable of eating them. He would regularly supplement his diet with snacks bought from the prison canteen, including non-soft foods such as boiled sweets.
JJ has experienced several episodes of choking during his time in custody: in 2016 (on his medication), in 2018 (for unspecified reasons), in 2019 (possibly on phlegm), and in 2020 (on soft food).
The care team expressed concern that JJ's consumption of boiled sweets gave rise to a risk of choking and aspiration and, although JJ said he was prepared to accept responsibility for his decision to eat them, the staff remained uncomfortable about the issue. In May 2021, arrangements were made for JJ to undergo a Speech and Language Therapy (“SALT”) assessment. The following material findings were recorded in the SALT report:
“[JJ] reports that he has difficulties swallowing more solid foods and that is why he will often refuse the food that is sent to him. He reported that he needs ‘soft and mushy’ foods to be able to manage them well… He is having hard boiled sweets which he feels he can manage but are considered high risk… [he] is in a full supine position and this is his position when eating/drinking… [he] is at high risk of aspiration and choking due to his supine position… Whilst…he has not experienced any choking episodes he is at high risk of this in the future. [He] appears to understand the consequences of this and accepts the risk.”
The therapist recommended that JJ finish his current supply of hard-boiled sweets and then be restricted to a Level 6 diet of soft and bite-sized food.
In accordance with the SALT recommendation, from early June 2021 Spectrum's staff began denying JJ any foods which did not fall within a Level 6 diet. JJ responded by refusing all food in protest. Since June 2021, he has consumed only fluids, including nutritional “Ensure” drinks, save for a brief period in May 2022 when he ate cake, custard, and ice cream without incident whilst he was temporarily nursed in a hospice.
JJ wishes to exercise choice over his diet. It is common ground that he has the mental capacity to make a decision to eat the boiled sweets which fall outside his Level 6 Diet. Reintroducing even Level 6 foods would, however, after many months of JJ being on ‘hunger strike’, now involve implementing a careful programme to minimise the risks associated with ‘re-feeding syndrome’, a potentially fatal change to electrolyte levels which can occur when food is reintroduced after a period of food refusal or malnourishment.
On 24 November 2021, a SALT review was carried out. JJ was told that there would have to be a reassessment before there could be any change in SALT's recommendations as to what foods it was safe for him to eat. That reassessment could only be carried out following the successful introduction of a careful recommencement diet and would also incorporate a physiotherapy assessment to support his posture and to see if JJ could be elevated more than he currently was. JJ said that for him to start the process, he would want a letter stating that it is his choice and that he and the staff could at any point choose to ignore the recommendations of the reassessment. JJ's approach was, and is, that he could exercise his basic freedom of choice to decide what he will eat, being fully aware of the risks.
Unsurprisingly, Spectrum declined to comply with JJ's condition that he should be provided with such a letter and without the letter JJ chose not to engage with the process which would have allowed the reassessment to take place. In his written evidence, JJ confirmed his position, saying that he was willing to go through a re-feeding process but only if, afterwards, he could exercise his ‘basic freedom of choice to decide what [he] will eat, being fully aware of any risks.’
On 22 December 2021, JJ signed an Advance Decision to Refuse Treatment. In this, JJ confirmed that food refusal was to apply even when his life is at risk and that he does not wish to be ventilated or to have cardiopulmonary resuscitation (CPR). It follows that in the event that JJ choked or aspirated as a consequence of eating a boiled sweet which, as he is quadriplegic, would have been put into his mouth by a carer, neither that carer nor any other medical professional on the ward would be able to intervene to give JJ lifesaving CPR.
In a letter dated 23 May 2022, Spectrum rehearsed the fact that the SALT specialists had said that JJ should not be given boiled sweets and that JJ wanted to be fed them contrary to their advice. Were JJ to die as a result of eating boiled sweets ‘or anything other than a ‘level 6’ soft diet’, the letter said, ‘the relevant individual could be at risk of both criminal proceedings and disciplinary proceedings’. The letter concludes by saying that whilst JJ is free to articulate his choice in the matter, ‘it is not an option available to him’.
In July 2022, JJ brought a claim for judicial review, contending that Spectrum's refusal to feed him foods of his choice was irrational, discriminatory, in breach of his common law right of autonomy and his Article 8 right to physical and psychological integrity.
A witness statement dated 21 July 2022 was filed by Dr Joanne Thomas, the associate medical director of Spectrum. In her statement, Dr Thomas asked that, in the event that the court concluded that Spectrum were ‘obliged to provide [JJ] with solid food stuffs’, the implementation would be delayed in order for them to undertake the necessary assessment to reduce so far as practicable the risks to JJ. Dr Thomas went on to say: ‘I would stress that whatever we do he will, in my professional opinion, be at considerable risk of dying if he is provided with solid...
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