Case in point | The power of autonomy

Under the ancient Brehon law of troscad, Ireland's poor were able to achieve justice when wronged by their betters by fasting at the malfeasor's gates. Even a chieftan faced with a peasant engaged in a troscad was compelled to hear the underling's complaint or face liability for his starvation. Troscad provided the early Irish with a legal remedy against the powerful, a remedy similar to that employed by the 1981 H-Block hunger-strikers and now by the force-fed detainees of Guantánamo. But is force-feeding a sane hunger-striking prisoner lawful? And if approved of in America, would English courts too favour the nasogastric tube ?over autonomy?

The legal limbo of Guantánamo has culminated in a 100-strong hunger-strike and the force-feeding of 21 inmates. The US response to the Gitmo 100 has been condemned this month by the UN. Cramming nutritional sludge down resisting gullets certainly sounds torturous. Yet force-feeding in Guantánamo was held to be humane by the United States District Court in Al-Adahi v Obama, 596 F. Supp. 2d 111 (D.D.C. 2009). And the preponderance of US cases on the force-feeding of prisoners supports the practice to uphold the sanctity of life (an absurdity in a country where death remains a legal penalty); to prevent suicide (ignoring suicide's legality); to ensure effective prison administration by discouraging copycats and scotching unrest (which force-feeding could certainly engender); to avoid, somewhat disproportionately, manipulation of the prison system; and - bizarrely - to spare the feelings of the medics and prison staff who might otherwise have to watch over a prisoner slowly starving: see Caulk 480 A.2d 93 (N.H. 1984); Chapman 87 A.D.2d 66 (N.Y. App. Div. 1982); Kallinger 580 A.2d 887 (Pa. Commw. Ct. 1990); Lantz 978 A. 2d 164 (Conn. Super. Ct. 2009). A brave trio of US state courts has, though, refused to sanction the nasogastric feeding of inmates with self-determination only narrowly outweighing the countervailing state interests in preventing starvation: see Thor 855 P.2d 375 (Cal. 1993); Zant 286 S.E.2d 715 (Ga. 1982); Singletary 665 So. 2d 1099 (Fla. Dist. Ct. App. 1996).

English law on forced-feeding was once to be found in Leigh v Gladstone (1909) 26 T.L.R. 139, where the necessity of preserving the Suffragette plaintiff's life, despite her politically-motivated desire to starve, was said to provide a complete defence to battery. And during the Suffragettes' campaigning, the mantle of necessity ?even cloaked attempts to force-feed prisoners rectally.

But it is Robb [1995] 2 W.L.R. 722 where English law's modern response to hunger-striking is to be found. Unlike American cases on the issue, which invariably involve prison authorities seeking authority to force-feed, Robb saw the Home Secretary seeking a declaration that to allow a manipulative prisoner to starve to death without intervention would be lawful. Thorpe J's decision in Robb appears to enshrine a right to starve. Thorpe J concluded that if a refusal of medical treatment by a capacitous patient was to be respected, even if that meant inevitable death (Re T [1993] Fam. 95), then a prisoner's refusal of nutrition should likewise be honoured. Leigh v Gladstone, was, according to Thorpe J, of little help, especially given suicide's illegality in 1909. While accepting the merits of the US case-law, Thorpe J held that in England there was a "stronger emphasis on the right of the individual's self-determination": if a prisoner wished not to eat, he should not be compelled to eat.

The potential limits on an English prisoner's freedom to hunger strike, however, can be seen in R v Collins Ex p. Brady (2001) 58 B.M.L.R. 173. Uninterested "in living another 20 or 30 years mainly to provide employment for an overmanned army of penal bureaucrats", Moors murderer Ian Brady decided to hunger strike. Although a serving prisoner, Brady - unlike Robb - was also detained under the Mental Health Act 1983 when applying for judicial review of the decision to force-feed him. The protean concept of 'medical treatment' within the Mental Health Act 1983 allowed Kay J to conclude that forced nasogastric feeding, more suited to anorexics, 'treated' Brady's hunger strike, an alleged symptom of his disordered personality. To forestall a 'forensic soap opera', Kay J determined, as a fail-safe, that Brady was an incapacitated adult who could be forced to eat in his best interests without the authority of the Mental Health Act 1983, a decision that would now be made under the Mental Capacity Act 2005.

But obiter remarks by Kay J suggests a power to force-feed cognitively unimpaired prisoners. In a digression concerning the lawfulness of force-feeding a sane inmate who had capacity, Kay J considered autonomy to be outweighed by the promotion of 'institutional integrity'.

Brady seems to suggest that English law might just countenance the force-feeding of a capacitous prisoner in the interests of penal discipline as in America. The Strasbourg Court, however, resolutely opposes force-feeding as inhuman in the absence of medical necessity: Herczegfalvy v Austria (Application No 10533/83).

Between Robb and Article 3, it seems unlikely then that an English court would order the force-feeding of even the most recalcitrant sane and capacitous prisoner.

As for Guantánamo's hunger-strikers, perhaps their act of troscad will prevail.