Court of Appeal hands down judgment considering the scope of an individual’s right to autonomy in relation to medical treatment

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The Court of Appeal (Lord Chief Justice Lord Burnett, King LJ and Lewis LJ) has handed down judgment in JJ v Spectrum Community Health CIC [2023] EWCA Civ 885, which considered the extent to which a quadriplegic individual’s right to autonomy included a right to demand he be fed unsafe food by carers.

JJ is a quadriplegic prisoner who is unable to feed himself and relies on carers to feed him. He has capacity to decide his diet, and seeks to be fed solid foods in the form of boiled sweets, biscuits and crisps by carers. Spectrum Community Health CIC, the prison healthcare provider, declined to feed him solid foods in the interests of safety, as such food is considered unsafe for him, and because it believes a risk would arise that it or its staff would be open to potential criminal or regulatory action.

The issue was summarised by the court as “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”.

The healthcare provider’s speech and language therapy assessments concluded the solid foods that JJ requested led to a “high risk” of choking and, due to his feeding position, there would be a “considerable risk of dying”. This led to the healthcare provider considering there would be a risk of criminal and disciplinary proceedings if JJ were to die due to eating solid foods.

JJ argued this was a case about “choice” and he was entitled to exercise choice over his diet, both arising from his common law right to autonomy and article 8 ECHR. The Court rejected both parts of this argument.

The Court considered the “law is clear” that a clinician cannot be compelled to provide a treatment that is not clinically indicated and therefore not offered. The right to autonomy only entitles a patient to choose between treatment options available to him (paragraphs 56-58, 68-69); and additionally to refuse medical treatment offered to him (paragraph 63).

In relation to article 8, whilst there was no dispute the position of the healthcare provider interfered with JJ’s article 8 right, the interference was in accordance with the law and proportionate. It was in accordance with the common law. The Court then approved the first instance judge’s assessment of proportionality. He had concluded the course taken was for the protection of health and for the protection of the rights of others, and such was justified (paragraphs 74-85).

Leon Glenister represented Spectrum Community Health CIC, the Respondent, instructed by Paul Allerston and Catherine Egan of Hill Dickinson.

David Lock KC acted at first instance but has since substantially retired from legal practice.

The judgment is available here.

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