Alternative Law Journal
Mary Anne Kenny[*]
[S]urely one cannot describe the overpowering effect of moral pressure exerted by love, truth, or right by the term coercion as it is commonly understood … Is it coercion … to credit the opponent with finer feelings and evoke them by fasting?
In January this year over 200 detainees at the Woomera detention centre in South Australia went on a prolonged hunger strike. The protest was reportedly in response to delays in the processing of applications for asylum and the conditions under which asylum seekers are detained. During these protests a number of people were treated for dehydration. At the time there was debate about whether they would have to be force-fed.
At earlier protests at Woomera in November 2000 there were reports that 10 hunger strikers were restrained and force-fed. This claim was denied by the Minister responsible for the Department for Immigration and Multicultural Affairs — now Department of Immigration Multicultural and Indigenous Affairs (DIMIA) — who claimed they had not been force-fed but rather ‘intravenously re-hydrated’ in hospital in accordance with DIMIA’s obligation to ensure that the detainees received ‘proper medical attention’. One detainee from another detention centre that I have spoken to had been force-fed via the use of a naso-gastric tube. The procedure was quite intrusive and was conducted against his will.
This article considers hunger strikes as a form of protest by asylum seekers and examines the legality of force-feeding and other forced medical treatment of detainees against their will. While the issues surrounding the ethics of treating hunger strikers has been the subject of debate and commentary in the medical profession it has not been the subject of much scrutiny by the legal profession or the courts in Australia.
Detainees and prisoners have long used hunger strikes to protest against imprisonment, to advance particular political or ideological causes or to protest the conditions of their confinement. By definition, prisoners or detainees have their rights restricted by the state; their freedom and movement is controlled in almost every aspect. A hunger strike is a demonstration of will which reasserts an individual’s ultimate control over their own fate against the state.
One of the first widely publicised protests was in Britain in the early part of the 20th century. Imprisoned suffragists used hunger strikes to draw attention to their cause and to obtain their release from prison. In the early 1980s ten hunger-striking IRA prisoners in British jails led by Bobby Sands died after a protracted hunger strike. In 1996 hundreds of detainees went on hunger strike in Turkey’s prisons leading to 12 deaths.
Like prisoners, asylum seekers have also used the hunger strike as a means of protest. For example in the last year there were hunger strikes by Iraqi asylum seekers in a refugee camp in Saudi Arabia, asylum seekers in the United Kingdom and by Tanzanian refugees in a Kenyan refugee camp.
Hunger strikes are not a new phenomenon among asylum seekers detained in Australian immigration detention centres. Hunger strikes occurred in the 1980s not long after the Australian government adopted its policy of mandatory detention. In response to recent protests both the Prime Minister and the Minister for Immigration Multicultural and Indigenous Affairs (the Minister) have been highly critical of the use of hunger strikes. They have labelled such protests as ‘extreme’ and claimed that they are used manipulatively by detainees to ‘try and force decisions that they may not be entitled to receive’.
While hunger strikes may be used to pressure for an outcome, psychiatrists have reported that the reasons for food refusal among asylum seekers may be more complex. Hunger strikes by asylum seekers may also be a method of self-harm or an indication of possible mental illness. Detention centres hold many individuals who have been exposed to high levels of trauma either in their countries of origin or during their journey to Australia. After arrival, other factors may contribute to or exacerbate existing psychological distress including separation from family, interviews with immigration officials and stress associated with waiting for an outcome from the asylum application process. If detention is prolonged there is also the experience of social isolation, boredom and frustration. A psychiatrist who examined detainees in the United States found:
At an early stage of imprisonment the motivation underlying food refusal in asylum seekers is usually the communication of distress and the desire to change detention status. Later, following adjudication and refusal of appeals when it becomes apparent to the asylum seeker that he will be repatriated against his will, a hunger-strike can be motivated by the desire to die rather than accept the fate handed down to him.
Depending on the length of a hunger strike a person can suffer severe, or in some cases irreparable, damage to their body. After a few days their bodies will start to feed on themselves. Starved of food, the body destroys its own organs and muscles for food to convert to energy. The liver and intestines lose the most weight, followed by the heart and kidneys. Muscle mass shrinks and bones protrude. The skin becomes thin, pale and cold and hair falls out. Most body systems are affected. Heart size and cardiac output reduce, the pulse slows and blood pressure falls. The person feels weak. Starvation causes death in 8 to 12 weeks.
The primary method of force-feeding is through the use of a naso-gastric tube. This is accomplished by inserting a tube down the nose through the oesophagus and into the stomach. The risks from such a procedure range from the minor to the potentially fatal.
Even when the patient cooperates, as in long-term care cases, the tube can cause irritation, ulceration, and infection in the throat and oesophageal tract, as well as aspiration of the feeding formula or even cardiac arrest. The tube may also choke the patient and frequently causes vomiting; the vomit may then enter the lungs and lead to pneumonia. In addition to the risk of aspiration of vomit or food formula, forcible feeding may also puncture the oesophagus. The deaths of prisoners in several countries have been attributed to force-feeding. The risks of force-feeding increase when the patient strongly resists the feeding.
Finally, force-feeding can also cause great pain, especially when the patient resists … One hunger striker simply called force-feeding ‘a torment.’ Another noted that, in addition to the physical pain, there was ‘the sense of degradation, the sense that the very fight that one made against the repeated outrage was shattering one’s nerves and breaking down one’s self control’.
One psychiatrist has noted that as asylum seekers have fled state persecution, the threat of force-feeding by government authorities ‘creates the risk of further psychological traumatisation’.
Given the possible dramatic effects on the health of a detainee and the invasiveness of force-feeding, treatment of hunger strikers is a contentious legal and ethical issue. Broadly stated, it involves the considerations of the rights and personal dignity of the individual as against the obligation of the state to provide medical treatment and to preserve life.
International human rights discourse is often couched in terms of an individual’s claim for protection by, or from, the state. There are several rights contained in the International Covenant on Civil and Political Rights (ICCPR) that are relevant to hunger-striking detainees:
• Article 10(1) provides that all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.
Article 17 establishes an individual’s right to be free from arbitrary or unlawful interference with his or her privacy.
Article 19 provides for freedom of expression.
There is authority to support the view that DIMIA has a duty of care in regard to immigration detainees. In Quayle v New South Wales Hosking J stated:
As a broad proposition it is surely a fundamental precept that when the liberty of a citizen is constrained by the community then the community assumes a heavy burden to ensure his or her safety.
The existence of a duty of care was recognised by the Parliamentary Joint Standing Committee on Migration in the Immigration Detention Centres Inspection Report. The Committee stated that the ‘Australian Government and Australasian Correctional Management, as service provider, [both] have a duty-of-care to detainees’.
In terms of the dignity of the individual there is the long established common law principle that the right to refuse treatment is part of a broader right — an individual’s right of self-determination. A person of full mental capacity has the right to choose whether to eat or not. Even if that refusal is tantamount to suicide, a person cannot be compelled to eat or be forcibly fed. A medical practitioner who performs such medical treatment without his or her patient’s consent commits an assault.
It has been argued that there are exceptions to this general proposition at common law where it is in the state’s interest to intervene. One such area is in the force-feeding of prisoners. This is an issue that has received little attention in Australia; however, there have been developments in other jurisdictions, such as the United Kingdom and the United States.
Commentators have noted that the courts engage in a balancing of the rights of the individual against a number of state interests. These include such ‘paternal’ interests as the preservation of life, the prevention of suicide and the protection of innocent third parties or dependants. There are also ‘institutional’ interests such as the fulfilment of the duty to provide medical care and the enforcement of prison security and order.
In the UK the paternalistic line is clearly evident in the early judgment of Leigh v Gladstone (1909) 26 TLR 139. In that case a suffragette was forcibly fed after three days on hunger strike. She later attempted to sue for trespass but was not successful. Lord Alverstone, directed the jury, saying: ‘... as a matter of law it was the duty of the prison officials to preserve the health of prisoners, and a fortiori to preserve their lives’. The issue of the treatment of hunger strikers in UK prisons reached its high-water mark in the cases of hunger-striking Irish prisoners in the 1970s and 80s. In the early 1970s it was the practice to force-feed the hunger strikers and, in one case, a prisoner had been artificially fed for over two years. It was justified as an act of last resort to save the lives of prisoners. This practice caused much debate and concern, particularly in medical circles.
In 1974 a new British Home Secretary introduced a fresh approach. It was made clear to authorities that force-feeding was not required as a matter of prison practice. Rather the decision to treat was to be left to a doctor to decide according to ‘the ethics of his profession and to his duty at common law’. Where a prisoner persisted in refusing to eat, a medical officer should first satisfy himself or herself that the prisoner’s capacity ‘for rational judgment is unimpaired by illness, mental or physical’. This was to be confirmed by an outside consultant. During the strike the prisoner would continue to receive medical supervision. The prisoner was to be advised: ‘that the consequent and inevitable deterioration in his health may be allowed to continue without medical intervention, unless he specifically requests it’.
In the UK there has been a gradual shift toward a rights- based approach and the preservation of the individual’s rights. The authority of Leigh v Gladstone was recently rejected by Justice Thorpe in Secretary of State for the Home Department v Robb  1 All ER 677 at 681. Justice Thorpe considered the arguments for the countervailing state interests and concluded:
It seems to me that within this jurisdiction there is perhaps a stronger emphasis on the right of the individual’s self-determination when the balance comes to be struck between that right and any countervailing interests of the state. So this decision is not a borderline one … The right of the defendant to determine his future is plain. That right is not diminished by his status as a detained prisoner.
In 1998 the Human Rights Act 1988 (UK) came into force and provides that legislation and subordinate legislation must be read and given effect in a way which is compatible with the rights set out under the European Convention for the Protection of Human Rights and Fundamental Freedoms. There are provisions in the Convention which mirror the rights set out in the ICCPR. Since the passing of this Act there have been several decisions by the House of Lords and the UK Court of Appeal that have reaffirmed the principle of autonomy and self-determination in respect of medical treatment.
The decision in the Secretary of State for the Home Department v Robb was followed in the recent case Re W (adult: refusal of medical treatment). That case involved a sentenced prisoner who was gouging his leg with pieces of porcelain so that he would develop fatal blood poisoning. The prisoner told the court he was being denied the treatment he needed for his mental disorder and would rather die than be locked up for 23 hours a day in a high-security segregation wing. He was examined by three psychiatrists who formed the view that he had a mental disorder, but that the disorder had not affected his capacity to refuse treatment. Dame Elizabeth Butler-Sloss, President of the Family Division decided the prisoner had the mental capacity to make the decision to refuse treatment, even if the refusal was life threatening.
Courts in the United States have grappled with whether force-feeding of prisoners is acceptable in the context of constitutionally enshrined rights to freedom of speech and privacy. The First Amendment freedom of speech clause, it is argued, protects a prisoner’s hunger strike and the force-feeding of a prisoner against his or her will to prevent death would violate constitutional rights to privacy. In Zant v Prevatte 248 Ga. 832, 286 S.E. 2d 716 and Thor v Superior Court (1993) 5 Cal 4th 725 the court upheld the prisoners’ claims by allowing hunger-striking prisoners to continue fasting. However, other authorities have found in favour of the state’s interests. There appears to be no clear line of authority with each case decided on the particular facts.
Australian common law recognises the right of a patient to self-determination, however there has been no major decision on the issue of the right to refuse treatment. In Australia the issue of force-feeding a detainee has been considered on only two occasions. The first was the NSW Supreme Court decision in Scneidas v Corrective Services Commission & Others in which a prisoner sought an injunction to restrain the defendant from force-feeding him. Justice Lee would not grant the injunction. He based his decision on s.16(2) of the Prisons Act 1952 (NSW) finding that where a prisoner’s health reached a point where there was a likely loss of organ function, forced feeding constituted ‘medical treatment’ under s.16(2) and was therefore authorised. His Honour doubted that there existed a common law justification for force-feeding a prisoner against their will.
In 1992, three Cambodian women who were seeking asylum in Australia initiated hunger strikes at the Villawood detention centre in NSW that persisted for between four and six weeks. The women began their strike after they had failed in their applications for protection visas and after rumours circulated that the government was about to summarily repatriate most of the Cambodian detainees. The Department of Immigration sought a declaration in the NSW Supreme Court to force-feed two of the asylum seekers. An interim order was made that the Department or their agents could ‘feed or administer nourishment to the defendants against their will in order to prevent their death or serious bodily damage and for that purpose to use such force as is reasonably necessary’.  Prior to the matter coming back to court the government introduced a new regulation that allowed medical treatment to be given to a person in detention without their consent. The applications before the court were withdrawn by consent. That regulation is now contained in Regulation 5.35 of the Migration Regulations.
Regulation 5.35 allows DIMIA to direct physicians to force- feed asylum seekers. Permitted medical treatment includes the administration of nourishment and fluids and treatment in a hospital.
The regulation authorises medical treatment to be given to a detainee if, on the advice of a Commonwealth Medical Officer or registered medical practitioner, the Secretary of the Department forms the opinion that:
• the detainee needs medical treatment;
• if medical treatment is not given to that detainee, there will be a serious risk to their life or health; and
• the detainee fails to give, refuses to give, or is not reasonably capable of giving, consent to the medical treatment.
In addition, the regulation authorises the use of reasonable force (including the reasonable use of restraints and sedatives) when treating a detainee. Detainees treated in accordance with the regulation are deemed to have consented to the treatment. The regulation also provides that a medical practitioner is not required to ‘act in any way contrary to the ethical, moral or religious convictions of that medical practitioner’.
There is no reference in the Parliamentary Hansard that this regulation received any attention or debate at the time this regulation was introduced. Nor has it been the subject of any challenge in the courts. At the time the regulation was introduced the current Minister was the Opposition spokesman for Immigration. In a media statement he said they would not block the regulation stating: ‘You cannot have a situation where people are held in custody while you stand by and acquiesce in their suicide’. More recently in referring to the treatment of hunger strikers he referred to DIMIA’s ‘obligation to ensure that the detainees received proper medical attention’.
From these statements it can be implied that the government justifies the administration of medical treatment against the consent of a detainee on the basis that it has an obligation to preserve life and prevent suicide. The government also has another interest in trying to ensure that no hunger striker dies. It is facing enormous domestic and international pressure over the policy of mandatory detention. If an asylum seeker were to die as a result of a hunger strike, in an act of martyrdom, it would further aggravate an already tense political situation. The question arises as to whether these arguments are compelling enough to justify forced treatment.
The state is said to have an interest in protecting people from direct self-destruction and in preserving life. However, for the state to permit a hunger striker to resist force-feeding does not signal disrespect for life. On the contrary, the right of self-determination demands respect for individual dignity and private decision making. Such an approach would give the state authority to preserve life to justify treatment that itself possibly threatened the patient’s life.
Hunger strikes by detainees place the Minister in a difficult position. If he submits to the demands of the hunger strikers, he is permitting something that goes against his better judgement and which could operate unfairly on other asylum seekers who abide by the set procedures. In the UK the Home Secretary did not intervene in the cases of Bobby Sands and the other IRA hunger strikers. Their deaths caused a number of riots and reprisals in Northern Ireland. Even though such moral blackmail may be distasteful it does not seem acceptable that such an invasive procedure should be justified on that account, particularly when there are complex reasons for food refusal and when it is recalled that force-feeding is not without risks.
Forced medical treatment of asylum seekers does appear to reveal a conflict of interest. As one commentator has noted:
[A]sylum seekers wish to claim citizenship and hence the protection of a state in which they have not been domiciled previously. In rejecting such claims, the state effectively expresses its intent to disqualify the asylum seekers from the protection it is obliged to provide to its citizens and other residents. Thus, asserting the parens patriae principle over such individuals is a contradictory action on the part of the state. While force-feeding other categories of hunger strikers may be solely directed at keeping them alive in prison, it can be claimed that an overriding motive for so doing in asylum seekers is to facilitate their forced return to the country of origin.
The validity of the regulation has not yet been tested. Regulation 5.35 is the only regulation relating to the care and management of immigration detainees. Challenging the validity of a decision made under the regulation has become more complex following recent amendments to the Migration Act 1958 (Cth). The amendments included the insertion of a new s.474, which provides that certain ‘privative clause decisions’ are not reviewable decisions under the Act. Decisions made pursuant to regulation 5.35 are deemed to be ‘privative clause’ decisions. Such a decision is declared to be ‘final and conclusive, must not be challenged, appealed against, reviewed, quashed or called in question in any court, and is not subject to prohibition, mandamus, injunction, declaration or certioriari in any court on any account’.
Such a clause was considered by Dixon J in R v Hickman; Ex parte Fox and Clinton  HCA 45; (1992) 177 CLR 106 who stated that there are three identified pre-conditions to the valid exercise of decision-making powers to which such a clause applies (at 615):
• the decision maker is required to have made a bona fide attempt to exercise its power;
• the decision relates to the subject matter of the legislation; and
• the decision is reasonably capable of reference to the power given to the decision maker.
In the case of challenging a decision to force-feed a detainee an argument could be made that a decision made pursuant to this regulation cannot be justified by reference to the Migration Act. It seems that the source of the power to make this regulation comes from s.273 of the Migration Act which provides:
The regulations may make provision in relation to the operation and regulation of detention centres.
Without limiting the generality of subsection (2), regulations under that subsection may deal with the following matters:
the conduct and supervision of detainees;
the powers of persons performing functions in connection with the supervision of detainees.
Section 273 refers only to regulations dealing with the conduct and supervision of detainees and powers of those performing functions in connection with the supervision of detainees. It could be argued that the power alleged to be contained in regulation 5.35 is ultra vires in that it clearly goes beyond such a function.
Another possible argument may be that the regulation could be found invalid as it restricts an implied right of ‘freedom of expression or speech’. The High Court in Nationwide News Pty Ltd v Wills  HCA 46; (1992) 177 CLR 1 and Australian Capital Television Pty Ltd v The Commonwealth  HCA 45; (1992) 177 CLR 106 held that there was an implied right to freedom of political communication in the Commonwealth Constitution. However all members of the High Court who recognised a right to freedom of communication in political matters and public affairs insisted that this right is not absolute. The extent of these implied rights was revisited in Lange v Australian Broadcasting Corporation  HCA 25; (1997) 145 ALR 96. In Lange the court emphasised that this freedom does not constitute a personal right in the conventional sense of human rights. The freedom ‘is limited to what is necessary for the effective operation of the system of representative and responsible government provided for in the Constitution’ (at 107–8).
These principles were applied by the High Court in Levy v State of Victoria  HCA 31; (1997) 146 ALR 248. The case involved a regulation prohibiting anyone without a duck-shooting licence from entering the hunting area on the first two days of the duck-hunting season. Levy wanted to protest about the killing of ducks during the duck-shooting season. He argued that the regulation was unconstitutional as it interfered with the implied constitutional right to freedom of political communication. The High Court found that the regulation was not invalid as the purpose of the regulation was to protect members of the public, including protesters, from harm. They found that there will be sufficient justification of an infringement of freedom of speech that it serve a ‘legitimate end’ and that the law is ‘reasonably appropriate and adapted’ to that end (at 248).
In the case of the forced medical treatment of asylum seekers the government might argue that legislating for treatment is necessary for the protection of the life of hunger strikers and for the institutional reasons outlined earlier. However, it would be interesting to see if these reasons would be preferred against the rights of the individual, as the English courts have rejected that course.
The combination of physical invasion, health risks, and psychological trauma establishes that force-feeding is a significant intrusion on an individual’s bodily integrity. Those coming into contact with a detainee on hunger strike: including DIMIA, ACM, health professionals and/or advocates should be aware of the complex issues regarding any decision to force-feed. Agents acting on behalf of DIMIA should not feel they have a lawful ‘mandate’ to engage in forced medical treatment by relying on an authorisation for treatment issued by the Secretary of the Department under Migration Regulation 5.35. Advocates should be alerting treating health professionals to their professional and ethical obligations regarding forced treatment against the consent of a patient.
This article has raised a number of questions about the lawfulness of the authority to force-feed under delegated legislation, not statute, for which no clear common law authority exists and which may be in breach of international law. Opportunities for challenging Regulation 5.35 in the courts may be restricted due to recent amendments that further restrict judicial review. However, a number of arguments have been canvassed that could be used to challenge its validity.
The Human Rights and Equal Opportunity Commission has recommended that Parliament repeal the regulation. Indeed it is submitted that the regulation has not kept pace with developments in the common law that has taken a course that favours the rights of the individual as against the interests of the state. Discussion of the treatment of hunger strikers could form part of a broader enquiry into the operation of Australia’s detention centres. This could allow for the development of guidelines for the medical treatment of hunger strikers that takes into account the rights of detainees, the ethical and professional obligations of treating doctors and their duties at common law.
[*] Mary Anne Kenny teaches law at the School of Law, Murdoch University.
I am grateful for the comments and assistance received from Prof Derrick Silove, Nick Poynder and Brenda McGivern in researching the background of this article. I am also indebted to the comments and assistance from Maria Fifield.email: M.Kenny@murdoch.edu.au© 2002 Mary Anne Kenny (text)© 2002 Stuart Roth (cartoon)
 Pyarelal, N., Mahatma Gandhi: The Last Phase 741, 1958 (quoting correspondence from Gandhi to Sir Reginald Maxwell).
 Department of Immigration Multicultural and Indigenous Affairs (DIMIA) Media Release, 19 February 2002, DPS 5/2002.
 Maynard, R., ‘Hunger-strikers “cuffed, force-fed”’, South China Morning Post, 30 November 2000.
 Silove, D. et al, ‘Ethical Considerations in the Management of Asylum Seekers on Hunger Strike’, (1996) 276 The Journal of the American Medical Association, 412; Peel, M., ‘Hunger Strikes’, (1997) 315 British Medical Journal 829; Reyes, H., ‘Medical and Ethical Aspects of Hunger Strikes in Custody and the Issue of Torture’, Extract from the publication Maltreatment and Torture, in the series Research in Legal Medicine, Volume 19, Rechtsmedizinische Forschungsergebnisse — Band 19; Oehmichen, M. (ed) Verlag Schmidt-Römhild, Lübeck, 1998; Annas, G., ‘Hunger Strikes’, (1995) 311 British Medical Journal 1114; Birchard, K., ‘Psychiatric Assessment of Hunger Strikers Must Be Prompt’, (1997) 350 The Lancet 648; Wier, Johannes, Foundation for Health and Human Rights, Assistance in Hunger Strikes: A Manual for Physicians and Other Health Personnel in Dealing With Hunger Strikers, Amersfoort, the Netherlands, Johannes Wier Foundation for Health and Human Rights; 1995. II; World Medical Association ‘Declaration on Hunger Strikes,’ Adopted by the 43rd World Medical Assembly, Malta, November 1991, and editorially revised at the 44th World Medical Assembly, Marbella, Spain, September 1992 <http://www.wma.net/e/policy/17-fff_e.html> .
 Amnesty International media release, ‘Turkey: Amnesty International Appeals for Urgent Steps to Resolve Hunger Strike Before Prisoners Die,’ AI INDEX: EUR 44/108/96, 12 July 1996.
 See Human Rights and Equal Opportunity Commission, Those who’ve Come Across the Seas: The Report of the Commission’s Inquiry Into the Detention of Unauthorised Arrivals, Commonwealth of Australia, 1998 (hereafter HREOC report), p.101.
 Interviews with the Hon Phillip Ruddock, on The 7.30 Report, 24 January 2002, on Lateline, 29 January 2002.
 Silove, D., Steel, Z. and Watters, C., ‘Policies of Deterrence and the Mental Health of Asylum Seekers’, (2000) 284 Journal of the American Medical Association 604–611.
 HREOC report, above, ref 6.
 Brockman, Bea, ‘Food Refusal in Prisoners: A Communication or a Method of Self-killing? The Role of the Psychiatrist and Resulting Ethical Challenges’, (1999) 25 Journal of Medical Ethics 1.
 See Section 1, Chapter 2 in M.H. Beers and R. Berkow (eds), The Merck Manual of Diagnosis and Therapy, 7th edn, available online at <http://www.merck.com> .
 Bennett, S., ‘The Privacy and Procedural Due Process Rights of Hunger Striking Prisoners’, (1983) 58 NYUL Rev 1157 at 1177–1178.
 Silove, D. et al, above, ref 4.
 These obligations are detailed further under the Standard Minimum Rules for the Treatment of Prisoners and the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.
 (1995) Aust Torts Reports 81-367, 62,795.
 Commonwealth Parliament Joint Standing Committee on Migration, Report on Inspections of Immigration Detention Centres throughout Australia, August 1998, p.5.
 See B v Croydon Health Authority  1 All ER 683, at 686.
 See Sneed, D. and Stonecipher, H., ‘Prisoner Fasting as Symbolic Speech: The Ultimate Speech–Action Test’, (1989) 32 How LJ; Bennett, S., above, ref 12; Greenberg, J., ‘Hunger Striking Prisoners: The Constitutionality of Force-Feeding’, (1983) 51 Fordham L. Rev 747.
 See Zellick, G., ‘Forcible Feeding: Legality of Enforced Therapy’, (1976) Public Law 154, at 154.
 Zellick, G., above, at 155.
 Referred to with approval in R (On the Application of Wilkinson) v The Responsible Medical Officer Broadmoor Hospital  EWCA Civ 1545 (22nd October, 2001) cf R v Collins and Ashworth Hospital Authority ex parte Brady  LLRM 355, where the court ordered that the force-feeding of a prisoner was permissible as ‘treatment’ under the Mental Health Act 1983 for Brady’s mental disorder. But even if the Act had not applied, the court was satisfied that Brady was incompetent, and therefore doctors could lawfully feed him in his best interests.
 Section 3 of the Human Rights Act 1998 (UK).
 Article 8 Right to Privacy, Article 19 Freedom of Expression.
 See cases referred to in Ms B v An NHS Hospital Trust  EWHC 429 (Fam).
 Decision delivered on 24 April 2002 by Dame Elizabeth Butler-Sloss P in the Family Division of the High Court. See also V. Dodd, ‘Self-mutilating Prisoner Wins Right to Die’ Guardian, 25 April 2002.
 See articles, above, ref 18.
 See State ex rel. White v Narick, 292 SE 2d 54 (W. Va 1982), Von Holden v Chapman, 87 A.D. 2d 66, 450 N.Y.S. 2d 623 (1982); In re Sanchez, 577 F. Supp.7 (S.D.N.Y. 1983), In re Caulk, 125 N.H. 226, 480 A.2d 93 (1984).
 See Stewart, C., ‘Advanced Directives, the Right to Die and the Common Law: Recent Problems with Blood Transfusions’,  MULR 6 at 10.
 Unreported Supreme Court of NSW, Administrative Law division, Lee J. No 4082 of 1983, 8 April 1983 (BC 8300004).
 A discussion of their treatment and of the particular ethical dilemmas that arose in their cases is discussed in Silove, D. et al, above ref 4.
 As reported in Department of Immigration, Local Government and Ethnic Affairs v Gek Bouy Mok Supreme Court of New South Wales Equity Division, Powell J, 4982 of 1992, 30 September 1992, unreported.
 Regulation 5.35(6).
 Millett, M., ‘Hunger Strikers can Be Fed by Force’, Sydney Morning Herald, 13 October 1992.
 Maynard , R., above, ref 3.
 Silove, D., above, ref 4.
 Note that in the United States prisoners on hunger strike have argued that a hunger strike should be regarded as ‘symbolic speech’ and protected by the first amendment to the Constitution, see Sneed and Stonecipher, above, ref 18.
 Regulation 5.35(6).
 HREOC Report, above, ref 5, recommendation number 6.8 p.124, note also that the report documents problems with the handling of detainees on hunger strikes by detention centre staff and makes further recommendations about the supervision and treatment of hunger strikers that draws on appropriate medical and psychological expertise.