The High Court declared that a prison Governor could lawfully respect an anonymised prisoner’s decision to refuse food, fluids and medical intervention, while the prisoner had capacity. The court also held that the prisoner’s advance healthcare directive was valid and should remain operative if the prisoner later lost capacity or became unconscious.
The judgment by High Court President Mr Justice David Barniville followed a hearing on 18 May 2023. The Governor brought the proceedings seeking clarity on the lawfulness of respecting the prisoner’s wishes and on how to give effect to the directive. The prisoner, whose gender and prison were withheld in the judgment, supported the orders sought.
The prisoner had refused food and fluids from early May and said the intention was to end their life. The court heard evidence from prison officials, the prison’s Chief Medical Officer, an independent consultant forensic psychiatrist and the prisoner’s solicitor. The prisoner did not give evidence. The witnesses assessed the prisoner as having full capacity to make the relevant decisions. The judge found that capacity continued through the date of the decision.
The directive, signed on 13 May, refused medical intervention, including CPR, intravenous fluids and medication, and expressed a preference to die in a clinical setting if actively dying. It stated that it applied to life-sustaining treatment even if the prisoner’s life was at risk. The judge found it valid under the Assisted Decision-Making (Capacity) Act 2015. However, because the prisoner still had capacity, the directive was not yet applicable under the Act; it could become applicable if capacity was lost and the statutory conditions were met.
The court separately declared, under its inherent jurisdiction, that the Governor could respect the prisoner’s current refusal of food, fluids and medical intervention while the prisoner had capacity, and that the decision not to force-feed or provide intervention would be lawful if the prisoner became incapacitated or unconscious. The judge said the directive itself did not expressly address oral food or fluids. He concluded that providing them against the prisoner’s clearly stated wishes would breach the prisoner’s constitutional rights. He did not decide conclusively whether force-feeding or forcibly providing hydration would constitute artificial nutrition or hydration under the Act, saying that question should await a case where it directly arose.
The court also ordered that the prisoner could be transferred to a hospital or other clinical facility for end-of-life treatment if required, while continuing to respect the directive and the prisoner’s wishes. The Governor was ordered, by consent, to pay the prisoner’s costs.