This guidance has been developed following reports that healthcare staff are being encouraged to adopt an excessively cautious approach when making decisions about patients eating and drinking with acknowledged risks of choking or aspirating. This follows from a 2022 legal case (JJ v Spectrum Community Health CIC). This case involved a highly unusual set of circumstances, and the legal question considered was whether healthcare staff were obliged to comply with JJ’s request for food that would expose him to significant risk, NOT whether the staff could comply with the request.
This case has presented a difficult dilemma for healthcare professionals. They are under a statutory duty to act in the best interests of patients who lack capacity and are expected, where possible, to respect the autonomous, informed wishes of patients who have capacity. Now, following the case of JJ, some healthcare professionals are facing pressure to shift the balance of decision making to give more weight to protecting themselves and/or their employers, potentially to the detriment of their patients. This guidance seeks to find a way through this dilemma, enabling doctors to continue to meet their obligations to the patient and engage in patient-centred care, whilst minimising the risk of legal challenge.
What you'll get from this guide
- Step by step advice on how to engage in good practice when making decisions regarding patients who are at risk of choking or aspirating
- A brief review of the case of JJ v Spectrum Community Health CIC and the dilemmas it presents for doctors and other healthcare professionals
- Reference to other guidance, such as those from the Crown Prosecution Service, Care Quality Commission, and Healthcare Inspectorate Wales.
How to use this guide
Decisions about eating and drinking with acknowledged risks of choking or aspirating involve a multi-disciplinary team and, often, families and/or carers. Therefore, although this guidance has been written for doctors, it may also be useful for other healthcare professionals and carers.
You may also be interested in our core ethics guidance for more general information on capacity, confidentiality, and more.