The claimant prisoner was severely disabled and had to be fed by a care team employed by the defendant healthcare provider. Because of his disability any food posed a risk of death or serious injury by aspiration or choking. Following a medical assessment, which identified certain foods as posing a greater risk than others, the defendant refused to feed the claimant those foods. In correspondence it expressed concerns about the risk of criminal prosecution or regulatory action against its staff were the claimant to die as a result of being fed the higher-risk foods. The claimant, who was assessed to have full capacity, wished to eat any food of his choice as he regarded the taste and experience of food as being the only thing that provided any variety in his life. He fully understood that eating such foods could carry elevated risks. He sought judicial review challenging the lawfulness of the defendant’s approach on the grounds that it: (i) unlawfully deprived him of the autonomy to choose what he ate; (ii) was irrational in terms of the assessment of risk to the claimant and risk of criminal or regulatory enforcement against the defendant; (iii) interfered with the claimant’s rights under article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms; and (iii) amounted to unlawful discrimination on grounds of disability contrary to sections 13, 20 and 21 of the Equality Act 2010. The judge dismissed the claim. The claimant appealed on the grounds that: (1) the judge’s conclusion that the claimant’s autonomy could lawfully be overridden by the healthcare provider was, in the circumstances of the case, not supported by the evidence and was contrary to established authority on the scope and extent of autonomy as a fundamental principle of common law; and (2) the judge erred in concluding that the healthcare provider’s interference with the claimant’s article 8 Convention rights was in accordance with the law and proportionate, and hence justified under article 8(2) of the Convention.
On the appeal—
Held, appeal dismissed. (1) It was settled law that any person with capacity had the right to choose which medical treatment proposed to him by a treating medical practitioner to receive or to refuse. It was equally clear that a patient who wished to choose treatment that was not clinically recommended and therefore not offered could not require the clinician to provide the treatment in question. Rather, a patient was entitled only to choose between the treatment options that were available to them, although as between those available options he or she was entitled to choose one which the clinician believed to be the least appropriate or even positively ill advised. Thus, since in the present case the treatment sought by the claimant was not clinically indicated, the judge had been right to conclude that the defendant had not been legally obliged to provide it. Furthermore, the judge’s conclusion that the claimant’s autonomy could be lawfully overriden by the defendant in the circumstance of the present case was properly supported on the evidence. Accordingly, there had been no error in the judge’s conclusions on the issue of the claimant’s autonomy (paras 38, 41, 49, 50–51, 53, 54, 56–57, 65–66, 68–69, 73, 87–88, 89, 90).
(2) Although it was common ground that in refusing to comply with the claimant’s food choices, the defendant was interfering with the right protected by article 8 of the Human Rights Convention, on analysis such interference was both in accordance with the law and proportionate within the meaning of article 8(2) of the Convention. Accordingly, the refusal to comply with the claimant’s food choices did not amount to an unlawful interference with his article 8 Convention rights (paras 81, 82, 84, 87–88, 89, 90).
Aswini Weereratne KC and Leonie Hirst (instructed by SLS Solicitors and Tuckers, Manchester) for the claimant.
Leon Glenister (instructed by Hill Dickinson LLP) for the defendant.
Alex Ruck Keene KC (Hon) (instructed by DAC Beachcroft LLP) for the Royal College of Physicians, intervening by written submissions only.