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

A patient with capacity may accept or refuse treatment and may choose between clinically available options, including one the clinician considers less appropriate. Autonomy does not entitle a patient to compel a clinician to provide treatment which professional judgment concludes is not clinically indicated. Where a healthcare provider reasonably identifies a substantial risk of serious harm, regulatory duties to provide safe care and mitigate risks may justify restricting the treatment offered. Informed consent is not a defence to providing care regarded as unsafe. Common law can satisfy Article 8’s accordance-with-law requirement if the applicable framework is sufficiently precise. Refusal may be proportionate where it protects health and the rights of carers and providers, and less intrusive alternatives are unsupported or unavailable.

JJ, a quadriplegic prisoner wholly dependent on carers for feeding, brought judicial review proceedings after Spectrum refused to provide boiled sweets and other hard foods outside his prescribed Level 6 diet. The refusal followed speech and language therapy and medical assessments identifying a high risk of choking, aspiration and death. HHJ Sephton KC dismissed the claim in the Administrative Court: R (on the application of JJ) v Spectrum Community Health CIC [2022] EWHC 2440 (Admin).

JJ appealed on common-law autonomy and Article 8 grounds. The central question was whether a capacitous patient could require a healthcare provider to supply food or treatment which clinicians considered unsafe and not clinically indicated.

The appeal was dismissed unanimously. The court upheld the judge’s conclusion that Spectrum could lawfully refuse to provide boiled sweets.

1. Evidence and regulatory duties. An appellate court will only rarely interfere with first-instance findings of fact. The restraint remains cogent even where no oral evidence was given: R (DB) v Chief Constable of Police Service of Northern Ireland [2017] UKSC 7. The judge was entitled to accept the medical and speech and language therapy evidence that JJ faced a considerable risk of choking and death. Under the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, regulation 12 required safe care, risk assessment and reasonably practicable mitigation. Spectrum had complied by providing a Level 6 diet and withholding high-risk foods. The Regulations contained no consent defence permitting care which the provider considered unsafe. There was a more than fanciful risk of prosecution under regulation 22(2), as well as possible exposure under health and safety legislation.
2. Common-law autonomy. Because JJ could not feed himself, supplying boiled sweets was treatment or care: Airedale NHS Trust v Bland [1993] AC 789. A capacitous patient may choose between available treatment options or refuse treatment, but cannot compel a clinician to provide treatment which the clinician has not offered because it is not clinically indicated. Montgomery v Lanarkshire Health Board [2015] AC 1430 concerned choice between available options, while McCulloch & Others v Forth Valley Health Board [2023] UKSC 26 confirmed that determining reasonable or clinically suitable treatments is an exercise of professional judgment. Cases concerning refusal or withdrawal of treatment, including Re T [1992] 3 WLR 782 and Re B v NHS Hospital Trust [2002] EWHC 429 (COP), did not establish a right to demand provision of treatment. The governing analysis was stated in Regina (Burke) v General Medical Council [2005] EWCA Civ 1003; [2006] QB 273.
3. Declarations and Article 8. A civil court should not make a declaration purporting to determine future criminal liability except in exceptional circumstances supported by cogent reasons: Imperial Tobacco Ltd v AG [1981] AC 718; R (Bus and Coach Association Ltd) v Secretary of State for Transport [2019] EWHC 3319; Secretary of State for Justice v a Local Authority & C (by his litigation friend AB) [2021] EWCA Civ 1527. Article 8 was engaged, but the common-law framework and the regulatory provisions were sufficiently clear and foreseeable. Common law can satisfy the accordance-with-law requirement: The Sunday Times v the United Kingdom (1979) 2EHRR 245; Chappell v United Kingdom (1989) EHRR 1989. The interference pursued protection of health and the rights of Spectrum and its staff. The real risk of serious harm and criminal or regulatory consequences justified the refusal, and the proposed less intrusive alternative had not been evidenced and depended on an assessment JJ had declined.

1. Court of Appeal (Civil Division). The appeal was unanimously dismissed on both the common-law autonomy and Article 8 grounds: [2023] EWCA Civ 885.
2. Administrative Court. HHJ Sephton KC dismissed the judicial review claim on 30 September 2022, holding that Spectrum’s policy was rational, necessary and proportionate: R (on the application of JJ) v Spectrum Community Health CIC [2022] EWHC 2440 (Admin). Permission to appeal was refused on 5 October 2022 and granted by Stuart-Smith LJ on 17 February 2023.