The simple demand of a prisoner to be able to eat his favourite snack may seem at first glance uncontroversial.
But the unique circumstances faced by one anonymised inmate of HMP Liverpool meant the question was fraught with difficulty. The man referred to as 'JJ', in court, has been rendered almost fully immobile by a rare genetic disease, X-linked hypophosphatemia (XLH), and is able to move only one finger.
He has been in that condition since 2016, and is spending his days lying flat on his back in the healthcare wing of the Walton prison, serving a "lengthy sentence" for a crime that has not been specified. He told judges that being able to eat what he wants represents his "last shred of humanity and dignity" after "losing almost everything".
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This week the Court of Appeal handed down a written judgment upholding the right of prison healthcare staff, employed by Spectrum Community Health CIC, to refuse to provide JJ with boiled sweets and other snacks due to the "high risk" of him choking to death.
The care team had taken that decision in 2021 after a Speech and Language Therapy Assessment (SALT) spelled out the dire consequences of providing unsuitable food to JJ, who the court heard also has no teeth.
Spectrum pointed out that prior to the SALT assessment JJ, who had been allowed boiled sweets and other snacks from the prison canteen, suffered several choking episodes. The therapist conducting the SALT assessment concluded that he should be allowed to finish his existing stash of sweets but then his carers should only supply soft food specified in a diet plan.
In response JJ began refusing solid food and subsisted on a liquid diet. He also applied for a judicial review of Spectrum's new policy, which was refused by the lower court. However he appealed to the Court of Appeal, which heard the case last month. The issue faced by the court was basically two fold. Firstly could a man, who despite his bleak physical condition retained full mental capacity, be refused the freedom to decide whether he ate something that posed a risk to his life?
And secondly could a healthcare provider regulated under the Care Quality Commission (CQC) regulations, be safe from prosecution providing unsafe care to a man even if he accepted the risk?
In court JJ's lawyers argued the lower court judge was wrong on two grounds.
Firstly: "The Judge's conclusion that the applicant's autonomy could lawfully be overridden by [Spectrum] was, in the circumstances of [JJ''s] case, not supported by the evidence and was contrary to established authority on the scope and extent of autonomy as a fundamental principle of common law."
Secondly, the judge was wrong to conclude that Spectrum was justified on the evidence in interfering with JJ's rights as established under Article 8 of the European Convention of Human Rights (ECHR).
However the three Court of Appeal judges, including the Lord Chief Justice, Lord Burnett of Maldon, sided with Spectrum.
Lady Justice King, who wrote the judgment, pointed out that under the CQC Regulations, which states "care and treatment must be provided in a safe way for service users", Spectrum could be prosecuted if he was hurt, as there is no "consent defence", ie. JJ accepting responsibility for the risk would not make them immune from prosecution. The company would also risk a criminal prosecution for gross negligence manslaughter if the worst happened and JJ choked to death.
The court heard in 2022 JJ had signed an advance decision refusing treatment, even in life-threatening circumstances, meaning doctors would not be able to perform CPR or place him on a ventilator.
Lady King wrote: "In my judgement, the judge's decision that JJ's 'autonomy could lawfully be overridden' by Spectrum was 'supported by the evidence' both in relation to the risk of harm to JJ and in relation to the risk of prosecution or regulatory action to the staff of Spectrum in the event that they fed JJ boiled sweets.
"Regardless of any prosecution or regulatory action, the death of JJ would inevitably lead to a coroner's investigation and inquest which in itself would be both stressful and distressing for the carers involved."
Lady King did write that patients have the right to choose between different options of medical care being offered, even if a doctor disagreed on the best course. However, precedent has established that patients cannot legally force medical staff to provide clinically unsafe treatment that is not being offered as an option.
On the question of the European Convention on Human Rights, Lady King ruled that while refusing to provide boiled sweets interfered with Article 8, that interference was "according to the law" and "proportionate".
In Lady King's judgment, the case fell against JJ for one main reason: Due to his condition he could not obtain the sweets himself, unwrap them or place them into his own mouth.
She said: "The provision of boiled sweets in circumstances where JJ cannot even put a sweet into his mouth is different; it is treatment or care carrying with it the considerable risk that on any given day, giving JJ that boiled sweet may cause him to choke to death and in circumstances where JJ's advance decision would prevent all but the most basic life-saving intervention on the part of the person who had given him the boiled sweet.
"In my judgement the judge was right having considered the well-established authorities, to conclude that it was lawful for Spectrum to refuse to provide JJ with boiled sweets in those circumstances, and that had they done so and JJ had choked to death or suffered serious harm as a consequence of aspiration, they were at a more than fanciful risk of prosecution under regulation 12 CQC or in the criminal courts for gross negligence manslaughter."