Food and Fluid Refusal
In England and Wales, provided that a person over 18 years old has the full mental capacity[1] they are considered free to make the decision not to eat or drink, even if this act leads to physical damage or ultimately to their death. In Scotland[2] and Northern Ireland[3], an individual over the age of 16 has the right for food/ fluid refusal. Someone with full mental capacity cannot be forced to undergo medical treatment and may refuse such treatment in advance while they still have capacity using an ‘advance directive’. Psychiatric reasons for refusing food or fluids should be excluded by a doctor.
The Home Office position on hunger strikes
Since the Shaw review (2015), the Home Office replaced the old Detention Service Order (DSO) 3/2013 with the new DSO 3/2017 on ‘Care and management of detained individuals refusing food and/ or fluid’ which was most recently updated in September 2022. This guidance does not apply to Short-Term Holding Facilities (STHF) as a result of their more limited medical facilities. Instead, where someone is detained in a residential STHF, the guidance recommends that transfer to an IRC is considered so that Home Office guidance can be implemented. Individuals on hunger strike who are detained in prison under immigration powers are subject to the Prison Safety Policy Framework (2024). This is an overall HMPPS framework towards safety in prison and addressing risks of harm. Food refusal is addressed on page 50 of the guidance.
The Home Office take a stringent approach when someone in detention makes the decision to refuse food or fluids, specifying at the outset that it will not trigger release from detention and escalating consideration for release to strategic director level (the Director of Casework and Returns) in all cases. The DSO sets out the process for close observation and ongoing monitoring by IRC staff, the healthcare teams, the Immigration Enforcement Detention Engagement team in IRCs and Home Office caseworkers.
In the first instance:
“The IRC supplier must keep a record of all detained individuals who have refused meals prepared and provided by the supplier for over 48 hours (6 meals) or refused fluid for over 24 hours… Where a detained individual is refusing both food and fluid this must be recorded separately.”
These records must be kept by the IRC supplier and shared with the Healthcare team (via Form A). This should be updated on a daily basis.
Once healthcare staff receive this form, they are required to offer the person in detention an appointment with a doctor. However, if the person in detention prefers an appointment with a nurse, this must be arranged.
If consent is given the:
“IRC Healthcare providers must provide the local DET team and the IRC supplier with a daily list of all detainees who have commenced or are continuing a food and/or fluid refusal”.
Daily appointments with healthcare should be offered where possible and, provided there is consent for them to do so, information should continue to be logged and shared with the DET team. This includes a risk assessment in accordance with the scale Black, Red, Amber, Green (BRAG) as set out in page 18 of the DSO, where Black is immediate risk of healthcare needs that cannot be managed in the IRC and Red is a threat of this being the case in the next 3-5 days.
Provided consent, the local DET will be updated on a daily basis and should pass information onto the Home Office caseworker using the consent form (Form C). It is also the responsibility of the local DET team to establish the reasons for hunger strike. They will establish whether they think there is a grievance and should support the individual in addressing this, advising on available complaints channels and how they can raise their concern to, for example the Independent Monitoring Boards (IMB) or centre management.
On receiving information from the DET team, the Home Office caseworker must review the individuals continued detention and consider actions to speed up case progression. For individuals who have been assessed as Red or Black on the BRAG scale, this should be escalated to the “Immigration Enforcement Food and Fluid Refusal tactical group” – a multi-disciplinary team who meet on a weekly basis. And, in all instances where release is being considered/proposed due food and/or fluid refusal, this must be referred to strategic director level for approval.
Throughout this process, there are important rights that people in detention should be aware of and which are set out in the DSO for “ Care and management of detained individuals refusing food and/or fluid ." These are:
People in detention should not – at any time - be forced to accept food or fluid.
People in detention are fully entitled to confidentiality, to retain responsibility for their own health wherever possible and their ability to give informed consent should be assessed by appropriately trained healthcare staff.
Consent should be sought for information to be shared with Home Office teams in IRCs and with Home Office caseworkers: “In seeking consent, it is essential that the purpose of the information sharing is made explicit and the person understands what will happen to their information” (page 5 of the DSO). A translator should be offered to ensure that information is understood.
Consent must also be sought by healthcare professionals before providing medical treatment. This is a process, not a one-off question and so can later be withdrawn. Legally it makes no difference whether people in detention sign a form to indicate their consent, or whether they give consent verbally or even non-verbally.
People in detention can refuse healthcare appointments and treatment, even if it is considered to be detrimental to their health.
The person detained can make an “advanced decision” to refuse medical treatment if they later do not have mental capacity to do so (and they should be made aware of this).
Other actions that might be taken by the IRC and Home Office are:
The transfer of individuals to detention centres with enhanced care unit facilities such Harmondsworth IRC for men and Derwentside IRC for women.
An Assessment Care in Detention and Teamwork (ACDT) plan may be opened where a detained individual refusing food and/or fluid is also assessed to be a risk of suicide or self-harm.
The healthcare team should also complete a Rule 35 (1) report where the health of the person in detention is “likely to be injuriously affected by continued detention or any conditions of detention.”
[1] Mental Capacity Act 2005 sections 24-2
[2] Adults with Incapacity (Scotland) Act 2000
[3] Mental Capacity Act (Northern Ireland) 2016
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