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

The Court of Appeal dismissed the appellant's challenge to Spectrum's refusal to feed him non-soft foods. The court accepted the factual findings that the Speech and Language Therapy (SALT) assessment and clinical evidence established a considerable risk of choking and aspiration if boiled sweets and other non-Level 6 foods were given, that the claimant has capacity, and that reintroducing food after prolonged refusal raises re-feeding risks. The court applied established common law principles (in particular Burke and Montgomery) to hold that a clinician is not obliged to provide treatment or care that is not clinically indicated, and accordingly a patient cannot demand such treatment. The court also found that Spectrum's refusal engaged but proportionately interfered with Article 8 ECHR rights, and that it was lawful and justified given the clinical and regulatory risks (including a realistic prospect of regulatory or criminal consequences under regulation 12 of the CQC Regulations and the law on gross negligence manslaughter).

This is an appeal from the Administrative Court (HHJ Sephton KC, reported as R (on the application of JJ) v Spectrum Community Health CIC [2022] EWHC 2440 (Admin)) in which a quadriplegic, bed-bound prisoner (JJ) sought declarations that Spectrum Community Health CIC were unlawfully refusing to feed him certain non-soft foods (boiled sweets, biscuits, crisps). Spectrum, an NHS-funded healthcare provider in the prison, relied on SALT assessments recommending a Level 6 soft diet because the claimant, who lacks teeth and is nursed supine, faces a high risk of choking and aspiration. The claimant has mental capacity and had executed an advance decision refusing life‑saving interventions.

The claimant sought judicial review and two declarations: that Spectrum's refusal to allow him to choose his diet was unlawful and that it would be lawful for staff to give effect to his food choices. The Administrative Court dismissed the claim, concluding the decision was rational and proportionate, and refused permission to appeal; permission to appeal was later granted to the Court of Appeal.

Issues framed by the Court of Appeal included (i) whether clinical professionals may lawfully refuse to provide or facilitate treatment or care that they consider not clinically indicated even where a capacitated patient wishes it, and (ii) whether Spectrum's conduct unlawfully interfered with the claimant's Article 8 rights. The court also considered evidential matters including the SALT findings, the claimant's history (including episodes of choking and a period of food refusal), the risk of re‑feeding syndrome if food were reintroduced without a programme, and the regulatory and criminal law context (regulation 12 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 and the law on gross negligence manslaughter).

The Court of Appeal upheld the judge's factual findings and reasoning. It held that (i) clinicians decide which treatment options are clinically indicated and are not legally obliged to provide treatments they judge not clinically indicated (accepting Burke); (ii) Montgomery does not empower a patient to insist on treatment that is not offered as clinically appropriate; (iii) the SALT and clinical evidence supported Spectrum's position and there was a non‑fanciful risk of regulatory or criminal consequences if staff fed the claimant boiled sweets contrary to clinical advice; and (iv) the interference with Article 8 was in accordance with the law and proportionate to protect health and the rights and freedoms of others (including staff). The appeal was therefore dismissed.

The appeal was dismissed. The Court of Appeal upheld the Administrative Court's factual findings on clinical risk and on the realistic prospect of regulatory or criminal consequences, and concluded that medical professionals are not legally required to provide treatment or care they consider not clinically indicated. The court further held that the refusal to provide non-Level 6 foods engaged Article 8 but was lawful and proportionate in the light of clinical and regulatory risks.

Appeal from the Administrative Court (HHJ Sephton KC) reported as R (on the application of JJ) v Spectrum Community Health CIC [2022] EWHC 2440 (Admin). The judge dismissed the claim on 30 September 2022 and refused permission to appeal on 5 October 2022; Stuart‑Smith LJ later granted permission to appeal on 17 February 2023. The Royal College of Physicians was permitted to intervene in writing (permission granted 16 May 2023).