The King (on the application of JJ) v Spectrum Community Health CIC
| Jurisdiction | England & Wales |
| Judge | Sephton |
| Judgment Date | 30 September 2022 |
| Neutral Citation | [2022] EWHC 2440 (Admin) |
| Year | 2022 |
| Docket Number | Case No: CO/2309/2022 |
| Court | King's Bench Division (Administrative Court) |
[2022] EWHC 2440 (Admin)
HHJ Sephton KC, sitting as a Judge of the High Court
Case No: CO/2309/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Ms Leonie Hirst instructed by SLS Legal/ Tuckers, Manchester for the Claimant
Mr David Lock KC and Mr Leon Glenister instructed by Hill Dickinson LLP, Manchester for the Defendant
Handed down 30 September 2022.
The claimant is a prisoner who is so profoundly disabled that he needs to be fed by a care team employed by the defendant. Because of his condition, eating any food poses a risk of death or serious injury by choking or aspiration, but some foods pose a more significant risk than others. The defendant refuses to feed the claimant food that it has been advised poses an elevated risk to the claimant. The claimant, who is of full age and capacity, wishes to eat the food of his choice, even though he appreciates that doing so may carry with it elevated risk. The issue in this case is whether the defendant's refusal to feed the claimant the food he wishes to eat is unlawful.
The background
The defendant is a community interest company that provides NHS funded healthcare services to (amongst others) prisoners at a prison in the north of England. The defendant is registered with the Care Quality Commission (“CQC”) and is consequently under duties imposed by the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (“the CQC Regulations”). The clinical staff employed by the defendant are subject to professional obligations imposed by their regulators, the General Medical Council, the Nursing and Midwifery Council and the Health and Care Professions Council.
The claimant is a serving prisoner currently detained at prison in the north of England.
The claimant has many health-related issues. In particular, he is now quadriplegic: he is paralysed from the neck down and has lost function in all four limbs, although he is able to press a button to operate a television or to call staff. He has lost all of his teeth. He is in pain most of the time. He is, and will remain, severely disabled and dependent upon others. He requires 24 hour care and assistance with all activities of daily living, including elimination, bathing, administration of medication and feeding. The defendant's staff provide the claimant with the care and assistance he requires. In particular, the defendant's staff are responsible for feeding the claimant.
In his witness statement, the claimant explains that he is completely isolated from normal life. He claims that the only thing that varies in his life is the taste and experience of food. He states that being able to eat what he wants represents his last shred of humanity and dignity.
The claimant describes the difficulties he has had with food: because he cannot chew food with his teeth, he has had to adapt his diet. Previously, meals were sent to his cell and he would have to decide whether he could eat them. He states that the kitchens often provided him with food he could not chew and break down, so he would not eat it. Instead, he would supplement his diet with snacks bought from the prison canteen.
I permitted the claimant to adduce the witness statement of Mr Andrew Sperling which exhibits a digest of the claimant's very extensive medical notes. My attention was drawn to the following:
(a) There were 2 occasions between 2016 and the present in which the claimant choked on something he had ingested; on 6 September 2016 (when the cause was medication) and on 9 July 2020 (when the cause was something he ate).
(b) He choked for unspecified reasons on 8 June 2018.
(c) He choked possibly on phlegm on several occasions between April and October 2019.
(d) There were many occasions when the defendant's staff gave the claimant chocolates, biscuits and boiled sweets.
The claimant's witness statement states that after a period in hospital in 2019 where he was offered a soft diet, the claimant returned to prison and asked for a soft diet to be provided for him. He states that eventually, the staff insisted that he be assessed by a speech and language therapist before a soft diet would be provided. It appears that the involvement of the speech and language therapist may not have been so arbitrary as the claimant suggests in his witness statement. I note from the exhibit to Mr Sperling's witness statement that in around May 2020, the defendant's care team was expressing concerns that the claimant's consumption of boiled sweets and biscuits gave rise to a risk of choking. Even after the claimant agreed to accept responsibility for the decision to consume such items, the staff were uncomfortable about the issue. At length, the claimant was referred to the speech and language therapist on 21 April 2021. The reason for the referral was given as: “difficulties with eating, drinking or swallowing” and “recurrent chest infections/UTIs”.
Kristina Croller-Baker, a speech and language therapist, undertook an assessment on 27 May 2021. The purpose of the assessment is recorded as being to develop a care plan “and for clarity for staff supporting him”.
In her note under the heading “Nutrition,” Ms Croller-Baker recorded that the claimant ate food compliant with IDDSI Level 6 food 1, but also hard boiled sweets, crisps and biscuits. Ms Croller-Baker expressed the view that hard boiled sweets “are considered high risk.”
Under the heading “Analysis” Ms Croller-Baker said this:
[JJ] has an okay cough which he could demonstrate in the session; however, whilst this may clear fluids from the airway, it is unlikely to clear any thicker residue due to its weakness in nature. [JJ] is at high risk of aspiration and choking due to his supine position and this will also make it difficult for any coughing to be effective in clearing the residue due to having to go against gravity. In addition [JJ] is showing signs of laryngopharyngeal reflux, which is likely to be a consequence of his positioning in combination with other physical health conditions.
[JJ] is presenting with mild to moderate oropharyngeal dysphagia characterised by poor oral control, positioning and reduced airway protection. While [JJ]'s chest remains clear and he has not experienced any choking episodes he is at high risk of this in the future. [JJ] appears to understand the consequences of this and accepts this risk.
Under the heading “Plan”, Ms Croller-Baker stated that the claimant had agreed that once the 10 hard boiled sweets in his box were gone, he would trial 2 weeks without them to see if they supported reducing the production of phlegm. She advised “Level 6 Soft and Bite-Sized Diet to be given.”
The defendant acted upon Ms Croller-Baker's recommendations. However, the claimant was dissatisfied with Mr Croller-Baker's assessment and her recommendations. From about 7 June 2021, he went on hunger strike. He stated that he had capacity to make a decision about what he wanted to eat and drink, he was aware of the risks and he therefore had the right to eat the food of his choice.
Dr Foud Bassa made a psychiatric assessment of the claimant on 23 September 2021. Dr Bassa found that there was nothing to suggest that the claimant was suffering from depression or any mental health issues and that he had capacity to make his own decisions to accept or refuse the food offered to him.
The claimant was further assessed by Bernadette Clifford, a speech and language therapist, on 24 November 2021, whilst he was still on hunger strike.
Ms Clifford records that the claimant was clear that he understood that anything placed in his mouth posed a risk, but he did not understand the difference between aspiration and choking. She recorded:
“As [JJ] is in the supine position and has paralysis of his body, it would be very difficult if not impossible to be able to administer first aid to support the choking episode.”
She continued:
“We discussed that for the recommendations to be changed a re-assessment would be required and this would include observations of [JJ] having some food. As [JJ] has not been eating for some time, I advised that his ability to eat, drink and swallow may have changed as he has not been using the muscles. We discussed that this may have deteriorated, and the skills do not return even when re-introducing eating. To consider a reassessment, he would need to re-commence eating on a plan as advised by a dietitian (due to high risk of re-feeding syndrome) and speech and language therapist in relation to the management of textures. He would also require a physiotherapy assessment to support his posture and establish if he is able to be elevated more than he is currently… This is a process that would take several months and would require collaborative working to be able to establish recommendations that would keep [JJ] safe, the staff team safe and support quality of life. [JJ] felt that for him to start this process he would want a letter writing stating that it's his choice and he and the staff could at any point choose to ignore the recommendations.”
The evidence of Dr Thomas shows that re-feeding syndrome occurs when food is introduced too quickly after a period of malnourishment. Variations in electrolyte levels can cause serious or even fatal health complications. Dr Thomas believes that the claimant would be at considerable risk of dying if provided with solid foodstuffs introduced in an unplanned manner.
The claimant continued to refuse food after he had been examined by Ms Clifford. On 22 December 2021, he made an Advance Decision to Refuse Treatment (“ADRT”) which confirmed that he would not take food even if his life were at risk or might be shortened as a result. He gave directions as to what care he was to be...
To continue reading
Request your trial
-
R (on the Application of JJ) v Spectrum Community Health CIC
...Justice Lewis Case No: CA 2022 002053 IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE ADMINISTRATIVE COURT HHJ Sephton KC [2022] EWHC 2440 (Admin) Royal Courts of Justice Strand, London, WC2A 2LL Aswini Weereratne KC and Leonie Hirst (instructed by SL5 Legal/Tuckers Solicitors) f......