Lord Burnett, the Lord Chief Justice of England and Wales (salary £275,534 a year) and two other Court of Appeal judges ( salaries £225,978 each) spent this week delivering a judgement on whether a prisoner could eat a boiled sweet.

In what must be one of the most lofty and byzantine judgements of the year a judicial review at the Court of Appeal threw out a request from a disabled prisoner at Liverpool jail to be able to eat boiled sweets.

The prisoner only known to the courts as JJ is a toothless quadriplegic inmate serving time until 2027 in the health wing of the prison. Lady Justice King delivered the verdict, which the Lord Chief Justice and Lord Justice Lewis concurred after spending time on a hearing and taking advice from the Royal College of Physicians.

In what must have been a very expensive case -since it was an appeal from another high court judge – barristers from top NHS lawyers Hill Dickenson and DAC Beachcroft to defend the prison’s healthcare company, Spectrum community Health. who were caring for him in jail while JJ was in the health wing. JJ had his own barrister, Aswini Weereratne KC.

Lady Justice King said: “JJ is quadriplegic and without teeth. While his cognitive and communication skills are unimpaired, his physical capacity is limited to pushing a button with one finger. Since 2016 he has been bed-bound and wholly dependent on care staff for all his personal cares and for feeding. He is nursed in a supine position.”

“As a consequence of JJ’s condition, eating food poses a risk of death or serious injury by choking or aspiration. Some foods pose a more significant risk than others. Until 2021, JJ ate a mixed diet of soft and non-soft foods. Meals would be sent to his cell and he would decide whether he was capable of eating them. He would regularly supplement his diet with snacks bought from the prison canteen, including non-soft foods such as boiled sweets.”

Prisoner goes on hunger strike over the denial of boiled sweets

There have been several instances of him choking on food but JJ insisted that he would take responsibility for himself and still wanted to suck boiled sweets.

The care company however were worried about his choking. They called in a therapist who decided that he should only eat soft and bite sized food once his supply of boiled sweets ran out. JJ wanted to choose what he ate and when this was not allowed went on hunger strike only taking high energy fluids to stay alive.

The judge said: “JJ’s approach was, and is, that he could exercise his basic freedom of choice to decide what he will eat, being fully aware of the risks.”

Do not resuscitate me says prisoner

Spectrum wouldn’t agree to this so in December 2021 JJ signed an Advance Decision to Refuse Treatment. In this, JJ confirmed that food refusal was to apply even when his life is at risk and that he does not wish to be ventilated or to have cardiopulmonary resuscitation (CPR). It follows that in the event that JJ choked or aspirated as a consequence of eating a boiled sweet which, as he is quadriplegic, would have been put into his mouth by a carer, neither that carer nor any other medical professional on the ward would be able to intervene to give JJ lifesaving CPR.”

In July 2022, JJ brought a claim for judicial review, contending that Spectrum’s refusal to feed him foods of his choice was irrational, discriminatory, in breach of his common law right of autonomy and his Article 8 right to physical and psychological integrity.”

It went to court and he lost and the judge refused an appeal. But it was decided as the issue was a compelling one it should go to the Court of Appeal.

Here the key issue was elevated to whether a patient can refuse to follow a clinician’s treatment and the fact that prisoners cannot choose what food they can eat – only what the prison choose to provide.

Also a bombshell ruling that as Spectrum was regulated by the Care Quality Commission if a nurse gave JJ a boiled sweet and he choked to death would he or she be prosecuted for gross negligence manslaughter?

JJ filed a statement to the court : ” In it he describes how he has little or no quality of life. He is completely bed-bound, lying on his back for 24 hours a day, and is unable to do anything for himself other than call for help or control a television. He concludes his statement by saying that he has lost almost everything in his life and ‘being able to eat what I want represents my last shred of humanity and dignity. I want o be able to cling on to it for as long as I can’.

But the judges rejected this saying ” It may be that in certain different medical circumstances the balance would come down in JJ’s favour but not, in my view, in this case. JJ cannot feed himself. He cannot obtain boiled sweets from the prison shop, unwrap them and put them in his own mouth. The provision of boiled sweets in circumstances where JJ cannot even put a sweet into his mouth is different; it is treatment or care carrying with it the considerable risk that on any given day, giving JJ that boiled sweet may cause him to choke to death and in circumstances where JJs advance decision would prevent all but the most basic life-saving intervention on the part of the person who had given him the boiled sweet.”

So what would happen if a friend came to visit him at Liverpool jail? Presumably the prison will have to confiscate any boiled sweets to comply with the Lord Chief Justice’s ruling. We hear of drugs, illicit mobile phones and porn being smuggled into jail now in this case the judiciary’s top judge has extended it to boiled sweets. Given JJ’s brain is the one part of him not impaired It is over the top.

For highly intelligent people the three cold hearted Court of Appeal judges lack any empathy or humanity in this case. Their judgement is more concerned with avoiding liability for the company and the prison if JJ dies rather than granting him a boiled sweet to make his limited life more pleasurable.

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