JJ, R (on the application of) v Spectrum Community Health CIC

The claimant is a quadriplegic prisoner who requires staff to feed him. Speech and language therapy assessments advised a restricted Level 6 soft and bite-sized diet and identified an elevated risk of choking, aspiration and re-feeding syndrome if the claimant were to be fed the solid foods he preferred. The defendant, an NHS-funded provider registered under the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, refused to feed the claimant foods contrary to that professional advice.

The court held that (i) the claimant had capacity and autonomy to choose his diet but that autonomy does not entitle him to insist on a course of treatment or feeding that clinicians reasonably consider is contra‑indicated or adverse to his clinical needs; (ii) the defendant was not obliged to administer the claimant’s preferred foods because it had rationally relied on relevant expert assessments (speech and language therapists and the defendant’s medical director) and because giving effect to the claimant’s wishes could expose staff and the organisation to realistic (more than fanciful) risk of criminal or regulatory proceedings; and (iii) although the facts engaged Article 8 ECHR, the interference was lawful, justified and proportionate for the protection of health and the rights and freedoms of others. The claim under the Equality Act 2010 was also rejected.

The claimant, a prisoner who is profoundly disabled and requires 24 hour assistance including being fed by staff, sought declaratory relief and judicial review to require the defendant to feed him the foods of his choice despite clinical advice to the contrary. The defendant relied on speech and language therapy assessments and medical evidence identifying a real risk of choking, aspiration and re-feeding syndrome, and on the potential for criminal or regulatory consequences to staff and the organisation should they feed him contrary to professional advice.

The application framed key issues:

• whether the defendant’s refusal unlawfully infringed the claimant’s autonomy and right to choose what to eat;
• whether the defendant’s decision was irrational;
• whether Article 8 ECHR was engaged and, if so, whether any interference was justified; and
• whether the defendant had unlawfully discriminated against the claimant under the Equality Act 2010.

The court found that the claimant had capacity but that autonomy does not oblige clinicians to provide treatment they reasonably consider contra‑indicated or to seek another clinician to do so where the treatment is adverse to clinical needs. The court upheld the defendant’s rational reliance on the speech and language therapists’ reports and the medical director’s evidence, and concluded there was a realistic risk (not negligible) that staff or the defendant could face criminal or regulatory action if they fed the claimant contrary to the clinical advice. The court declined to make the declarations sought which would attempt to pre‑determine possible future criminal or regulatory liability. The court held Article 8 was engaged by the claimant’s highly restricted autonomy but that the interference was justified and proportionate. The Equality Act claims (ss.13, 20, 21) were rejected as the defendant had taken reasonable steps and reasonable adjustments were not to comply with the claimant’s requests to the extent that they would expose him to serious harm or staff to legitimate prosecution or regulatory action. The claim was dismissed.

The claim is dismissed. The defendant lawfully refused to feed the claimant foods that it had reasonably concluded, on the basis of speech and language therapy and medical evidence, were contra‑indicated and adverse to his clinical needs; the refusal was rational, and although Article 8 was engaged, the interference was lawful, necessary and proportionate. Declarations that would pre-empt possible future criminal or regulatory liability were refused and the Equality Act claims were dismissed.