Article 8 - Right to a Boiled Sweet?
Développement en droit 4 août 2023 4 août 2023
Royaume-Uni et Europe
Soins de santé
The Court of Appeal has handed down judgment in JJ v Spectrum Community Health CIC [CA 2022 002053] in which the Appellant JJ sought to challenge an earlier decision by HHJ Sephton KC to dismiss his application for judicial review.
The factual background was an unusual one; however the fundamental issue of how to resolve the tension between patient autonomy and the risks which arise from their choices, is one commonly faced by clinicians, particularly in the context of patients under detention.
JJ is a prisoner and is quadriplegic due to a rare genetic condition, X-linked hypophosphatemia. His physical limitations are significant and whilst his cognitive and communication skills are unimpaired, and he has capacity to make decisions about his medical treatment, his physical abilities are limited to use of a button with one finger. He is bed bound and nursed in a supine position, entirely dependent on nursing staff for all personal care and feeding. Due to his genetic condition, he also has no teeth. As a result he is fed a Level 6 diet of soft, bite sized foods on the recommendation of a Speech and Language Therapist.
The issue for the Court of Appeal was whether or not JJ could seek judicial review of the Respondent’s refusal to allow him to eat other foods in addition to the Level 6 diet, such as boiled sweets purchased from the prison canteen. There had been previous episodes of JJ choking and in view of this and the SALT recommendations, the Respondent had declined to facilitate his consumption of non-Level 6 diet foods. JJ responded by refusing all food in protest and since June 2021 has consumed only fluids. He signed an Advance Decision to Refuse Treatment, confirming that his refusal to accept food should apply even if his life was at risk, and that he did not want to receive CPR or be ventilated.
JJ’s position was that the Respondent’s refusal to accommodate his dietary preferences was irrational, discriminatory, and in breach of his common law right of autonomy and his Article 8 right to physical and psychological integrity.
The application for judicial review
The Court accepted the Respondent’s position that to accommodate his preferences (which given his physical limitations would require staff to actually place the sweets in his mouth for him) would leave JJ at significant risk of choking and in view of the advance directive in place, of dying as staff would not be permitted to resuscitate him.
The Court accepted the Respondent’s position that to accede to JJ’s wishes left staff at significant risk of prosecution in the event he came to harm. JJ was seeking a declaration from the Court that would “bind the hands” of a future criminal court and the judge considered this inappropriate and that he was bound by authorities to refuse this. Whilst it was accepted that JJ’s personal autonomy and Article 8 rights to physical and psychological integrity were engaged and interfered with by the Respondent, this interference was in accordance with the law, and proportionate in the circumstances.
The Court of Appeal decision
The matter was appealed to the Court of Appeal. JJ did not appeal the judge’s decision that the policy was rational or that he was not discriminated against. He did appeal the findings on common law autonomy and Article 8. The Respondent’s position was that to provide JJ with food outside of the Level 6 diet amounted to medical treatment which was not clinically indicated and without a direction from the Court compelling them to do so, they would not provide it in view of the risks of regulatory and criminal penalties.
It was common ground between the parties before the Court of Appeal that JJ has capacity and his Article 8 rights are engaged.
JJ submitted that the Respondent’s approach was too risk averse and as he had capacity and understanding of the risks involved, this gave the Respondent a “protective element from prosecution”. The Court of Appeal rejected this. It was held that it was not fanciful to regard the Respondent as being at risk of prosecution by the CQC, and in particular that regulation 12 required the Respondent to provide safe care and treatment and no consent defence is available to such a prosecution. The Respondent and individual staff were also at risk of prosecution under the Health and Safety at Work Act 1974. There was also a risk of individual staff being prosecuted for manslaughter. Even if those sanctions did not materialise, the death of JJ and the inevitable inquest would be a stressful and upsetting experience for staff. They could not be compelled to subject themselves to those risks in the circumstances.
Whilst the Court of Appeal accepted that refusal to meet JJ’s dietary preferences amounted to interference with his Article 8 rights, in his specific circumstances this interference was justified. The appeal therefore failed.
The concluding observations of the Court of Appeal’s judgment make clear that this justification of interference of Article 8 rights is fact specific. To comply with JJ’s request, given his physical limitations, would compel his carers to obtain, unwrap and place the sweets in his mouth for him. This was a degree of facilitation which given the balance between the benefit to JJ and the risks involved, staff could not be compelled to perform.
It is clear from the concluding remarks of the judgment that if JJ’s physical restrictions were less severe, then the balance of risks against rights may have come down in his favour.
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