Prisoner at HMP Liverpool goes to court in battle to be given boiled sweets

A bedbound and quadriplegic prisoner who can only move one finger has taken his carers to court after they refused to feed him boiled sweets.

The man, who is referred to as 'JJ', told judges being able to eat what he wants represents his "last shred of humanity and dignity" after "losing almost everything".

JJ is said to be serving a "lengthy sentence", for an unnamed crime and is being held in the healthcare wing of HMP Liverpool in Walton.

The Court of Appeal has now handed down a written judgment upholding the right of prison healthcare staff to refuse to provide JJ with boiled sweets due to the "high risk" of him choking to death.

Judge Lady Justice King said: "As a result of a rare genetic condition, X-linked hypophosphatemia (XLH), 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."

The court heard that JJ's care is provided inside the prison by Spectrum Community Health CIC, and up until 2021 JJ was allowed to supplement his diet of soft, mushy food with snacks he ordered from the prison canteen including hard-boiled sweets.

However the prisoner suffered "several episodes of choking" during this time.

Lady King wrote: "The care team expressed concern that JJ's consumption of boiled sweets gave rise to a risk of choking and aspiration and, although JJ said he was prepared to accept responsibility for his decision to eat them, the staff remained uncomfortable about the issue."

In May, 2021, JJ was subject to a Speech and Language Therapy (SALT) assessment which concluded he was at high risk of death when eating hard food due to his horizontal position.

The therapist recommended that JJ finish his supply of hard-boiled sweets and then be restricted to a diet of soft and bite-sized food.

The court heard from June that year Spectrum staff refused to provide JJ with anything not specified in his diet plan, including sweets, and he refused to eat any solid food in protest.

The court heard he did allow himself to be fed a liquid diet, "apart from one occasion when he ate cake, custard and ice cream without incident".

JJ refused to return to eating any solid food unless he be provided a written guarantee that after a "re-feeding" period he would be allowed to eat boiled sweets at his own risk.

However Spectrum refused, arguing that feeding JJ boiled sweets or other unsafe foods would open them up to prosecution for gross negligence manslaughter if he did choke.

In July 2022, JJ applied for a judicial review of that decision, which was refused by a judge at the High Court.

He appealed that decision, and the case was heard by a panel of three judges on 28 June at the Royal Courts of Justice in London.

Lawyers for JJ argued that the High Court were wrong to deny him autonomy and that the decision breached his human rights.

Spectrum argued that because JJ is not capable of obtaining boiled sweets himself, it would risk being prosecuted.

Lady King sided with Spectrum. She wrote in her judgment: "JJ filed a witness statement in the proceedings.

"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 to be able to cling on to it for as long as I can'.

"One can fully understand the dire situation in which JJ finds himself and a view that says that if JJ understands and is happy to take the risk of choking for the modest pleasure of eating a boiled sweet, then that is a matter for him.

"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. "

Lady King noted that JJ cannot feed himself, obtain boiled sweets from the prison shop, unwrap them and put them in his own mouth.

She wrote: "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 JJ's 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.

"In my judgement the judge was right having considered the well-established authorities, 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."

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