JJ -v- Spectrum

We have previously considered this case and the legal implications surrounding it in this article. 

Since our previous article, the case has been heard at the Court of Appeal and a decision was handed down on 25 July 2023. The Appellant (JJ) sought to challenge the decision by HHJ Sephton KC and maintained his position, namely that Spectrum’s refusal to accommodate his dietary preference was in breach of his right of autonomy and his Article 8 human rights.

Background

JJ has many health-related issues. In particular, he is quadriplegic: he is paralysed from the neck down and has lost function in all four limbs. He requires 24-hour care and assistance with all activities of daily living, including feeding. Spectrum’s staff provide JJ with the care and assistance he requires. 

In around May 2020, Spectrum’s care team was expressing concern that JJ’s consumption of boiled sweets and biscuits gave rise to a risk of choking. Even after JJ agreed to accept responsibility for the decision to consume such items, staff were uncomfortable about this aspect of his feeding. JJ was referred to the speech and language therapist on 21 April 2021. 

JJ had agreed that once the 10 hard boiled sweets in his box were gone, he would trial 2 weeks without them to see if they supported reducing the production of phlegm. The speech and language therapist advised a ‘Level 6 Soft and Bite-Sized Diet to be given.’ Spectrum acted upon this recommendation. sweey

However, JJ was dissatisfied with the assessment and the recommendations. In June 2021, JJ went on hunger strike. He stated that he had capacity to make a decision about what he wanted to eat and drink, he was aware of the risks, and he therefore had the right to eat the food of his choice.

Court of Appeal decision

The appeal was heard before Lord Chief Justice Burnett, Lady Justice King and Lord Justice Lewis on 28 June 2023. Judgment was handed down on 25 July 2023 

There was no dispute as to whether JJ has capacity and that his Article 8 rights are engaged and that Spectrum’s refusal to provide him with boiled sweets is an interference with that right. The dispute was whether HHJ Sephton KC’s conclusion that JJ’s autonomy could be lawfully overridden was correct, when in the Appellant’s case, this wasn’t supported by circumstances or by the evidence and was contrary to the fundamental principle in common law of a person’s right to autonomy. The second dispute was in respect of JJ’s Article 8 ECHR rights and whether Spectrum’s interference with these rights were in accordance with the law, proportionate and hence justified.

As set out in the judgment, ‘the issue before the court is whether a medical professional is acting lawfully in restricting the foods which are to be offered to a patient because, in their medical opinion, to do so would expose the patient to a high risk of choking and aspiration which might lead to his death. Put the other way around, is a patient entitled to demand medical treatment which is not clinically indicated and therefore not offered to him by the doctor?’

The Court of Appeal agreed with HHJC Sephton KC’s analysis of the law and the appeal failed in all areas.

The Court of Appeal concluded that, as Spectrum had concluded that the treatment was not clinically indicated, they are not legally obliged to provide it. They also concluded that HHJ Septhon KC was right 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.

Take aways for practitioners from this case

• There are limits on a person’s autonomy. Despite it being fully accepted by all parties that JJ was able to make a capacitous decision, this wasn’t the sole factor to be taken into consideration.
• A healthcare provider does not need to offer something that would have an adverse affect on a patient, if this isn’t clinically indicated. The fact that it wasn’t clinically indicated was the key part of this case, given Spectrum had clearly set out the risks of JJ’s food choices.
• It is not always as simple as a question of choice, as this was a choice that wasn’t being offered by Spectrum. The choice would have also had an impact on the carers.
• To interfere with a person’s Article 8 rights will always be completely fact specific. The difficulty / difference in JJ’s case as the level of intervention required and assistance required from the carers, which tipped it into a risk that couldn’t be placed on his carers.  The judgment noted that JJ would need assistance in purchasing the sweets, opening the wrapping and then placing them in his mouth.
• If there was no risk to JJ from the food he desired then it is likely the outcome may have been different. It was therefore again very fact specific, and practitioners should consider each decision on a case by case basis.

Hill Dickinson is one of the leading lawyers providing legal advice and support to national and international healthcare organisations. We have a wealth of knowledge and experience in handling complex cases involving the NHS, private providers and Public Health authorities.

Our legal expertise spans across multiple sectors such as mental health and social care, and includes specialist practices covering mental capacity, clinical negligence, inquiries and investigations.