Food and Fluid Refusal in Prison Settings

The management of food and/or fluid refusal in a prison setting can be particularly complex because of difficulties establishing the individual’s motivation; does it arise from a mental disorder affecting their capacity to make their own decisions about food and fluid intake, are they abstaining as a form of protest, or are they making a capacitous decision to starve themselves to death - and if so, is there any legal basis upon which to interfere with that decision?

As identified in JK v A Local Health Board [2019] EWHC 67 (Fam)  there are three legal routes by which clinicians can provide treatment to an adult patient without their consent:

1. If they lack capacity, under the Mental Capacity Act 2005 (MCA);
2. If they are detained under the Mental Health Act 1983 (MHA) and the treatment falls within the terms of section 63 (or section 58); or
3. If they can be categorised as “vulnerable” under the High Court’s inherent jurisdiction. 

As Lieven J stated in JK: ’in principle, every citizen who is of age and of sound mind has the right to harm or (since The Suicide Act 1961) to kill himself, and is entitled to make decisions about his treatment, even if those decisions bring about his death.’

This principle applies equally to prisoners – ‘every person’s body is inviolate and proof against any form of physical molestation… The right of the defendant to determine his future is plain. That right is not diminished by his status as a detained prisoner’ (Home Secretary v Robb 1995 1 FLR 412).

The cases below are examples of the court’s approach to each of the three legal routes which may potentially be available to those treating prisoners who refuse food and/or fluid.

Mental Capacity Act 2005 

The Court of Protection has the power to make declarations as to whether a person has or lacks capacity to make a particular decision – and if the person lacks capacity in a particular domain - to make declarations as to the lawfulness or otherwise of any act done, or yet to be done, in relation to that person, and to make a decision on the person’s behalf, either on a final or interim basis (sections 15; 16; 48 MCA) subject to acting in that person’s best interests, applying section 4 MCA.

In Nottingham University Hospitals NHS Trust v RL [2023] EWCOP 22, RL, a man with depression and a severe psychotic disorder, was in prison for murder. He refused food and became severely malnourished, resulting in admission to hospital where he refused nasogastric feeding and antipsychotic medication. An urgent application was brought in the Court of Protection for a declaration that it was in his best interests to receive nasogastric feeding, alongside treatment for his mental health and a thyroid condition. 

Having heard evidence from RL’s treating psychiatrist, the Judge concluded RL lacked capacity to make his own decisions about the recommended treatment, despite the fact that RL refused to communicate at all during the assessment. Turning then to best interests, whilst acknowledging that great weight should be given to what RL’s own views would be, the Judge noted his attitude towards food and drink had been inconsistent in the past, and whilst RL was presently unwilling to communicate his wishes and feelings, the evidence from RL’s mother was that his current presentation was out of character and she believed he would want treatment if he were well. 

Together with the strong presumption in favour of the preservation of life, this led the Judge to the conclusion that it was in RL’s best interests to receive nasogastric feeding (and treatment for his mental health and thyroid condition), including restraint if it became necessary to reinstate the nasogastric tube, subject to the court reviewing those decisions in 7 days’ time.

Mental Health Act 1983

Section 63 MHA provides that the consent of a patient is not required for any ‘medical treatment’ given to him for the mental disorder from which he is suffering if the treatment is given by or under the direction of the approved clinician in charge of his treatment.

Section 145(4) MHA confirms that any reference to medical treatment in relation to mental disorder means medical treatment which has the purpose of alleviating, or preventing a worsening of, the disorder or one or more of its symptoms or manifestations.

In the case of JK v A Local Health Board [2019] EWHC 67 (Fam) , JK was in prison on remand when he was transferred to a psychiatric hospital and detained under section 48 MHA. He had a diagnosis of autism spectrum disorder (ASD) and was refusing to eat and drink whilst expressing an intention to starve himself to death. The relevant health board applied to court for a declaration as to whether it would be lawful to force feed JK under section 63 MHA. In determining this issue, the Judge noted the following of relevance:

• JK’s refusal to eat was a manifestation of his autism;
• Issues around food and eating appear to have been a feature of JK’s autism and his refusal to eat therefore had an obvious relationship to his mental disorder;
• The task is not to try to compare JK’s response to his situation with that of a hypothetical person without autism, but rather to try to analyse the degree to which JK’s own response relates to his condition, and the way his mind works because of that condition;
• His refusal to contemplate any alternative paths and his rigid belief that refusing to eat is the only way forward is a consequence of his autism and therefore falls within section 63 MHA; 
• The proposed force feeding is therefore capable of being treatment for the manifestation of his mental disorder;
• However, treatment within the definition of section 145(4) MHA must be to alleviate or prevent a worsening of the disorder; so, any proposed force feeding plan must fall within that definition. 

 Inherent Jurisdiction of the High Court 

The High Court has the power to exercise its inherent jurisdiction to make decisions on behalf of a vulnerable adult who, even if they do not lack capacity to make the relevant decision due to a mental disorder, is reasonably believed to be either (i) under constraint; (ii) subject to coercion or undue influence; or (iii) is for some other reason deprived of the capacity to make the decision or disabled from making a free choice - SA [2005] EWHC 2942 (Fam).

It is the final of these categories which often requires consideration in the context of prisoners refusing food or fluid. In SA, whilst not intending to provide an exhaustive list, Mr Justice Munby further defined it as: ‘circumstances that may so reduce a vulnerable adult’s understanding and reasoning powers as to prevent him from forming or expressing a real and genuine consent, for example, the effects of deception, misinformation, physical disability, illness, weakness (physical, mental or moral), tiredness, shock, fatigue, depression, pain or drugs.’

Notwithstanding this wide-ranging definition, obtaining a declaration under the inherent jurisdiction that it would be lawful to treat a patient for food or fluid refusal against their will, in circumstances where they have capacity to make that decision for themselves, is a very high hurdle to overcome. 

In the case of JK discussed above, the application to court was initially brought on the basis that, if the treatment could not be provided pursuant to section 63 MHA, the court should authorise re-feeding treatment under the inherent jurisdiction due to JK’s vulnerability caused by his ASD. However, by the time of the hearing, the applicant health board accepted JK was not “vulnerable” within the meaning of SA described above. As Lieven J stated in JK: 

‘Here the vulnerability which the Health Board originally relied upon was JK’s mental disorder, namely his ASD. Despite his ASD, JK undoubtedly has capacity, so he cannot be compulsory treated under the MCA. If I had found that his decision not to eat was not a manifestation of his mental disorder, then he could not have been compulsory treated under the MHA. In my view, that would have been the end of the matter, because the two statutory schemes deal precisely with someone in JK’s situation, and there is no factor such as coercion which lies outside those considerations.’

In other words, the inherent jurisdiction cannot be used as a fallback where the vulnerability in question has already been considered under both the MCA and MHA and the conclusion reached by the court is that it is not lawful to force feed the individual under those legal frameworks. There must be some other factor at play such as to satisfy the “vulnerable” definition and make it lawful for the court to interfere with the person’s capacitous decision making. 

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