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Hunger Strikes in Prison –
The Legal Issues
Darius Whelan,
School of Law, University College Cork
Terence MacSwiney, Cork Men’s Gaol, and the Political
Hunger Strike, 1920-2020
School of History, UCC, October 2020
Outline
2
Motivations for hunger strikes
Relevant Rights
Legislation
Case-Law
Historical Material
Different motivations for / causes of food
refusals in prison
• Food Refusal (FR)/ Hunger Strike (HS) as a form of
protest,
• FR/HS as a deliberate act of self-harm,
• FR/HS related to a mental illness (e.g. depression /
psychosis / eating disorders) and/or
• FR/HS as an attempt to ‘frustrate’ a prison sentence.
3
Relevant Rights
4
Right to
Health
Right to
Bodily
Integrity
Right to Self-
Determination
Right to
Autonomy
Right to
Life
Right to
Privacy
Freedom from torture /
inhuman or degrading
treatment
Sources of Rights
5
6
“Prisoner” or “Patient” ?
Courts have held:
Some rights of prisoners are
abrogated, limited or suspended
or abrogated during their period of
imprisonment.
LEGISLATION
Criminal law concerning suicide
8
Ireland – crime of suicide abolished by Criminal Law (Suicide)
Act, 1993.
Aiding and abetting suicide continues to be a crime.
Suicide is still contrary to public policy (Humphreys J. in A.B. v
C.D. (2016))
In UK – crime of suicide abolished by Suicide Act 1961, but
aiding and abetting a suicide continues to be a crime
Relevant Legislation if there are
mental health or capacity issues:
9
• Criminal Law (Insanity) Act 2006
• Prisoners can be transferred to
Central Mental Hospital,
Dundrum
• Mental Health Act 2001
• Provisions in ss.56-60 apply if
detained person does not have
capacity
Photograph by Dara Mac Dónaill from Irish Times
Assisted Decision-Making (Capacity) Act 2015 (which is
not yet fully commenced)
• Criteria regarding assessing capacity
• Guiding Principles
• Decision-making supports
• Advance Healthcare Directives
10
CASE-LAW
Leigh v Gladstone, 1909
12
UK Case
Prison governors had a duty to
preserve the health of prisoners, a duty
which extended to force feeding.
Thus, they were permitted to force-feed
hunger striking suffragettes at a time
when suicide was illegal.
Photograph By LSE Library - https://www.flickr.com/photos/lselibrary/35720938521/ , No
restrictions, https://commons.wikimedia.org/w/index.php?curid=67341188
Secretary of State for Home
Department v Robb, 1995
13
• UK Case
• It was lawful for the prison authorities not to intervene if a
prisoner with capacity was on hunger strike.
• It is not suicide to refuse to consent to treatment, which then
leads to one’s death.
• Mr R. had personality disorder but had capacity
R. v Collins ex parte Brady, 2000
14
UK Case
If a hunger striking prisoner was also
detained under the Mental Health Act and
lacked capacity, he could be force-fed.
Force feeding could be a medical
treatment within the Mental Health Act
1983
Hunger strike was a manifestation of his
personality disorder.
It was common ground that force feeding
was medical treatment.
Nevmerzhitsky v Ukraine, 2006
15
European Court of Human Rights
Mr N. did not have a psychiatric diagnosis.
Force-feeding a prisoner on hunger strike was not
a breach of the Convention, provided there was a
“medical necessity” and the method used was
humane
The Ukrainian government did not respond to the
case.
On the facts – there was not a medical necessity
(it was arbitrary) and the method was inhumane,
so art. 3 had been breached.
Governor of X Prison v McD. (2015)
Irish case
Prisoner refusing food; had full capacity.
Prison could lawfully withhold medical and nutritional assistance.
The autonomy to choose medical treatment derives from the right to
life.
The right to life includes a right to die with dignity.
Mr McD. had borderline Personality Disorder but not mental disorder.
Court held that Mr McD’s advance directive (a letter) was important
and ought to be respected by those with care of the person.
16
A.B. v C.D. (2016)
• Irish case. Not a hunger striking case.
• Prisoner had self-inflicted injury to neck.
• He was assessed as lacking capacity to refuse treatment.
• Court did not make finding on capacity.
• A prisoner in custody under a court order is not entitled to
refuse treatments where this would either directly or
ultimately put his life at risk and thereby frustrate the court’s
verdict and order.
• Prisoner cannot “cheat justice”.
17
• But court did not disagree with outcome in McD. as
executive had discretion – governor had chosen to
withhold assistance.
• In this case – Court granted declaration authorising the
prison to administer all medical and/or surgical treatment
that might be recommended by its medical staff in the
interests of the defendant's medical welfare.
18
HISTORICAL
MATERIAL
Brehon Law
20
Troscud
• (referred to by Baker J. in Governor of
X Prison v McD.)
• Fasting, or going without food, for the
purposes of extracting justice or
redressing a wrong has had a long
history in Ireland and indeed it could be
said to be a particularly Irish form of
protest.
• Video on Troscud - (Kevin Flanagan,
Brehon Law Academy) :
https://youtu.be/ONBLOvWMwbU
Suffragettes
21
• Mary Leigh – see Leigh v
Gladstone, referred to earlier
Unknown author, Public Domain - https://commons.wikimedia.org/wiki/File:Force-
feeding_(suffragettes).jpeg
Grace Roe and Nellie Hall – 1914
• Arthur Barnett, the clerk of Arthur Marshall, the solicitor of the Women’s
Social and Political Union, was observed passing a small packet to
Roe.
• When examined, the packet was found to contain six small tablets. The
tablets caused vomiting.
• Barnett was convicted under the Prisons Act 1865 for his attempts to
smuggle in the drugs.
22
William Murphy - https://histprisonhealth.com/2016/12/08/the-health-of-suffragette-prisoners-force-
feeding-and-vomiting/
Prisoners (Temporary Discharge
for Ill Health) Act 1913
23
“The Cat and Mouse Act”
Museum of London Poster -
https://commons.wikimedia.org/wiki/File:Cat_and_Mouse_Act_Poster_-_1914.jpg
Events in 1974-1975
24
• Dolours and Marian Price force-fed in English
prison
• Michael Gaughan died while on hunger strike
in the Isle of Wight. He had been force fed a
number of times.
• Roy Jenkins, Home Secretary, announced that
hunger strikers would no longer be force-fed
• 1975: Word Medical Association declared that
hunger strikers with capacity should not be
artificially fed
Photograph from independent.co.uk
H Blocks Hunger
Strike 1981
25
• Force feeding was not used
• European Commission on
Human Rights involvement
• Some hunger strikers elected
as MPs
• UK: Representation of the
People Act 1981 – Prisoners
could no longer be nominated
or elected.
CONTACT DETAILS
d.whelan@ucc.ie
26

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Hunger Strikes in Prison: The Legal Issues Oct 2020

  • 1. Hunger Strikes in Prison – The Legal Issues Darius Whelan, School of Law, University College Cork Terence MacSwiney, Cork Men’s Gaol, and the Political Hunger Strike, 1920-2020 School of History, UCC, October 2020
  • 2. Outline 2 Motivations for hunger strikes Relevant Rights Legislation Case-Law Historical Material
  • 3. Different motivations for / causes of food refusals in prison • Food Refusal (FR)/ Hunger Strike (HS) as a form of protest, • FR/HS as a deliberate act of self-harm, • FR/HS related to a mental illness (e.g. depression / psychosis / eating disorders) and/or • FR/HS as an attempt to ‘frustrate’ a prison sentence. 3
  • 4. Relevant Rights 4 Right to Health Right to Bodily Integrity Right to Self- Determination Right to Autonomy Right to Life Right to Privacy Freedom from torture / inhuman or degrading treatment
  • 6. 6 “Prisoner” or “Patient” ? Courts have held: Some rights of prisoners are abrogated, limited or suspended or abrogated during their period of imprisonment.
  • 8. Criminal law concerning suicide 8 Ireland – crime of suicide abolished by Criminal Law (Suicide) Act, 1993. Aiding and abetting suicide continues to be a crime. Suicide is still contrary to public policy (Humphreys J. in A.B. v C.D. (2016)) In UK – crime of suicide abolished by Suicide Act 1961, but aiding and abetting a suicide continues to be a crime
  • 9. Relevant Legislation if there are mental health or capacity issues: 9 • Criminal Law (Insanity) Act 2006 • Prisoners can be transferred to Central Mental Hospital, Dundrum • Mental Health Act 2001 • Provisions in ss.56-60 apply if detained person does not have capacity Photograph by Dara Mac Dónaill from Irish Times
  • 10. Assisted Decision-Making (Capacity) Act 2015 (which is not yet fully commenced) • Criteria regarding assessing capacity • Guiding Principles • Decision-making supports • Advance Healthcare Directives 10
  • 12. Leigh v Gladstone, 1909 12 UK Case Prison governors had a duty to preserve the health of prisoners, a duty which extended to force feeding. Thus, they were permitted to force-feed hunger striking suffragettes at a time when suicide was illegal. Photograph By LSE Library - https://www.flickr.com/photos/lselibrary/35720938521/ , No restrictions, https://commons.wikimedia.org/w/index.php?curid=67341188
  • 13. Secretary of State for Home Department v Robb, 1995 13 • UK Case • It was lawful for the prison authorities not to intervene if a prisoner with capacity was on hunger strike. • It is not suicide to refuse to consent to treatment, which then leads to one’s death. • Mr R. had personality disorder but had capacity
  • 14. R. v Collins ex parte Brady, 2000 14 UK Case If a hunger striking prisoner was also detained under the Mental Health Act and lacked capacity, he could be force-fed. Force feeding could be a medical treatment within the Mental Health Act 1983 Hunger strike was a manifestation of his personality disorder. It was common ground that force feeding was medical treatment.
  • 15. Nevmerzhitsky v Ukraine, 2006 15 European Court of Human Rights Mr N. did not have a psychiatric diagnosis. Force-feeding a prisoner on hunger strike was not a breach of the Convention, provided there was a “medical necessity” and the method used was humane The Ukrainian government did not respond to the case. On the facts – there was not a medical necessity (it was arbitrary) and the method was inhumane, so art. 3 had been breached.
  • 16. Governor of X Prison v McD. (2015) Irish case Prisoner refusing food; had full capacity. Prison could lawfully withhold medical and nutritional assistance. The autonomy to choose medical treatment derives from the right to life. The right to life includes a right to die with dignity. Mr McD. had borderline Personality Disorder but not mental disorder. Court held that Mr McD’s advance directive (a letter) was important and ought to be respected by those with care of the person. 16
  • 17. A.B. v C.D. (2016) • Irish case. Not a hunger striking case. • Prisoner had self-inflicted injury to neck. • He was assessed as lacking capacity to refuse treatment. • Court did not make finding on capacity. • A prisoner in custody under a court order is not entitled to refuse treatments where this would either directly or ultimately put his life at risk and thereby frustrate the court’s verdict and order. • Prisoner cannot “cheat justice”. 17
  • 18. • But court did not disagree with outcome in McD. as executive had discretion – governor had chosen to withhold assistance. • In this case – Court granted declaration authorising the prison to administer all medical and/or surgical treatment that might be recommended by its medical staff in the interests of the defendant's medical welfare. 18
  • 20. Brehon Law 20 Troscud • (referred to by Baker J. in Governor of X Prison v McD.) • Fasting, or going without food, for the purposes of extracting justice or redressing a wrong has had a long history in Ireland and indeed it could be said to be a particularly Irish form of protest. • Video on Troscud - (Kevin Flanagan, Brehon Law Academy) : https://youtu.be/ONBLOvWMwbU
  • 21. Suffragettes 21 • Mary Leigh – see Leigh v Gladstone, referred to earlier Unknown author, Public Domain - https://commons.wikimedia.org/wiki/File:Force- feeding_(suffragettes).jpeg
  • 22. Grace Roe and Nellie Hall – 1914 • Arthur Barnett, the clerk of Arthur Marshall, the solicitor of the Women’s Social and Political Union, was observed passing a small packet to Roe. • When examined, the packet was found to contain six small tablets. The tablets caused vomiting. • Barnett was convicted under the Prisons Act 1865 for his attempts to smuggle in the drugs. 22 William Murphy - https://histprisonhealth.com/2016/12/08/the-health-of-suffragette-prisoners-force- feeding-and-vomiting/
  • 23. Prisoners (Temporary Discharge for Ill Health) Act 1913 23 “The Cat and Mouse Act” Museum of London Poster - https://commons.wikimedia.org/wiki/File:Cat_and_Mouse_Act_Poster_-_1914.jpg
  • 24. Events in 1974-1975 24 • Dolours and Marian Price force-fed in English prison • Michael Gaughan died while on hunger strike in the Isle of Wight. He had been force fed a number of times. • Roy Jenkins, Home Secretary, announced that hunger strikers would no longer be force-fed • 1975: Word Medical Association declared that hunger strikers with capacity should not be artificially fed Photograph from independent.co.uk
  • 25. H Blocks Hunger Strike 1981 25 • Force feeding was not used • European Commission on Human Rights involvement • Some hunger strikers elected as MPs • UK: Representation of the People Act 1981 – Prisoners could no longer be nominated or elected.