Judge says hunger striker’s choice ‘must be respected’

The freely made and fully-informed decision of a hunger-striking prisoner to refuse food and medical intervention until death must be respected by the prison authorities and the State, a High Court judge has ruled.

Ms Justice Marie Baker said that while death may not be the prisoner's intended choice it would be the indirect result of that choice "which if freely made and fully informed must be respected."

The prisoner, who was on hunger strike for 50 days, or the prison where he is being held cannot be identified by order of the court. The man had been protesting over the conditions of his detention and during the three-day hearing before Judge Baker, agreed to suspend his hunger strike action.

During the proceedings the prisoner was able to attend court and spoke with the judge in private. While he was able to walk without assistance he appeared frail and gaunt.

Judge Baker said the prisoner’s decision to accept a medical intervention and receive nutrients intravenously until the conditions in which he is held are dealt with at a full High Court hearing, was “a welcome development.”

In a case which raised legal issues concerning a person’s capacity to make a decision that could eventually lead to death, Judge Baker was told that the man had been at serious risk of slipping into a coma and dying.

The court heard that the prisoner stopped eating food in early February but continued to take fluids. He recently stated he may also cease taking fluids and, while he had allowed one nurse to monitor him, he refused all forms of medical and psychological treatment offered to him.

Judge Baker gave a detailed judgment on the legal issues raised in the action

The State, represented by Conor Power SC had asked the High Court to make several declarations including that the man, who has had a troubled upbringing and has been in solitary confinement for the last three years at his own request and for his protection, has the necessary capacity to decide to refuse food.

The man’s lawyers urged the judge not to make any decision about his capacity until all relevant and detailed evidence had been put before the court. This was a case where there was “no room for error”, Michael Lynn SC for the man said.

Judge Baker said hunger strikes had a long history in Ireland and reference to them could be found in early Irish law. They were a particularly Irish form of protest and the case before her had been brought by a prisoner whose complaints were purely personal relating to the conditions of his detention.

She said the case concerned the question of whether the prisoner’s choice to express his protest was one made in the full knowledge of the consequences for him and if his expressed wishes should be respected.

Having heard “clearly-expressed and articulate evidence from the prisoner” the judge said she was of the view he had the capacity to make the decision he had made to refuse food and that his decision had been made by him in the full understanding of its consequences.

“He had freely made his choice to go on and continue his hunger strike,” Judge Baker said.

She said the prisoner’s decision-making capacity had not been impaired by any frailty arising from his current living conditions or his personality traits. While death may not be his intended choice it would be the indirect result of that choice. “If the choice is freely made and fully informed it is a choice that must be respected,” Judge Baker said.

She said she was satisfied the State could properly respect the personal autonomy and right of self-determination of the prisoner by giving effect to his stated wish and direction not to be treated,

Judge Baker said she noted the evidence of two consultant psychiatrists who said the prisoner had the capacity to make the decision to refuse food and was aware of the consequences.

The judge said she was prepared to make declarations that the prisoner’s decision, when he commenced his hunger strike, to refuse medical and nutritional assistance was valid and that the prison governor was entitled to give effect to the prisoner’s wishes not to be fed or medically assisted.

The court also made a declaration that his wishes and directions should remain in being in the event he slipped into a coma and became incapable of making a decision to accept treatment.

His dispute with the prison authorities is over his demand to be served his meals by prison staff and not by other prisoners because he fears his food may be contaminated by other prisoners. He also wanted two prison officers, for safety reasons, to escort him during the one hour he is allowed to spend daily in the prison’s exercise yard.

The court heard that several proposals had been put to the prisoner which he had declined. The Prison authorities said there were staffing resource issues in relation to his request to be accompanied in the exercise yard. He had been allowed exercise alone in the yard when there was no threat to him from other inmates.

The prisoner is currently serving a lengthy sentence at an Irish prison for offences including burglary and assault. The judge heard he had a long criminal record and has spent the majority of his adult life behind bars. He had mental health difficulties, had suffered from substance addiction and had a very troubled upbringing.

He feared for his own safety and, at his own request, had been on protection in solitary confinement in the prison since 2012. The prisoner’s legal challenge to the conditions in which he is being held will be heard by the High Court later this month.