Decision not to force-feed prisoner refusing fluid and food is lawful, High Court rules

The president of the High Court has declared that it is lawful for a prison governor not to force-feed a prisoner who is refusing food and fluids.

Mr Justice David Barniville also found it is lawful for life-saving treatment not to be administered if the prisoner requires it even though the prisoner may lose mental capacity or consciousness.

This is because the prisoner has signed an advance healthcare directive (AHD) provided for under the 2015 Assisted Decision Making (Capacity) Act which includes provisions enabling people to be treated according to their will and preferences. It was the first time a court has considered this part of the Act.

The prisoner, whose gender was not divulged and was referred to by the judge as “he or she”, is in a prison outside Dublin having been given a two-year jail sentence last year. Further criminal proceedings are pending against the prisoner.

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In early May, the prisoner began to refuse food or fluids having similarly refused on four or five previous occasions, most of which were short-lived.

Stated intention

When the prisoner took a “more determined approach” to refusing food and fluids in May, the “stated intention of the prisoner was to end his or her life”, the judge said. The court heard the prisoner lost 8kg since March.

On May 13th, the prisoner executed an AHD whereby he or she was not to receive any medical intervention and medication, and, if actively dying, had a preference to do so in a clinical setting, such as a hospital or hospice.

The prisoner also directed that those wishes were to be respected should they become incapacitated or unconscious; and that the AHD was to apply even if the prisoner’s life was at risk.

The prison governor then applied to the High Court, on a one-side-only represented basis, seeking orders to essentially give effect to the prisoner’s wishes. The governor also applied for the hearing to be held in private and the judge agreed to do so because there is a provision in the 2015 Act for AHD-related proceedings to be held otherwise than in public.

The judge gave his decision on May 18th and said he would give a written judgment later setting out his reasons in full. The judgment was published on Tuesday.

Full capacity

The court heard evidence from the prison governor, the Irish Prison Service’s national nursing manager, the prison chief medical officer, and an independent consultant forensic psychiatrist. The prisoner did not give evidence but the prisoner’s solicitor confirmed that the prisoner had and continued to have full capacity to give instructions and was not opposing the governor’s application.

The judge said that during the course of the assessment of the prisoner by the nursing manager, the prisoner dictated a note stating that he or she was “…making the decision with full mental capacity to end my life by refusing fluids and food”.

They had “considered my options incredibly carefully” and it was a decision not taken lightly.

“I have been and am in a deep state of trauma and feel to continue my life is not a feasible option,” the prisoner said.

“I regretfully respect that my decision may not suit everybody but until a person stands in my shoes and carries my weight and my baggage, they will never understand.

“I have not been coerced or controlled into making any unlikely decision, however, it is a decision I stand firmly for.”

Series of demands

Shortly before the prisoner was offered the AHD option, the prisoner set out a series of demands including to be accommodated with a particular prisoner and better treatment from prison staff. However, the prisoner later that day said it was not a protest and that the demands should not have been made.

The judge said the assessing psychiatrist said there was no doubt about the prisoner’s capacity to make decisions. She confirmed that the prisoner was “highly intelligent”, has a number of degrees, is “very articulate” and at the time of her assessment, the prisoner was “still fully lucid and…very compos mentis, very articulate”.

The judge found the decision of the governor not to force-feed the prisoner was lawful.

He also found that while the AHD does not apply while the prisoner has capacity, the governor was entitled to give effect to the AHD which should remain operative in the event that the prisoner loses capacity or becomes unconscious or incapacitated.