W (by her litigation friend, B) v M (by her litigation friend, the Official Solicitor) and others [2011] EWHC 2443 (Fam). Read judgment.

In the first case of its kind, the Court of Protection ruled that withdrawing artificial nutrition and hydration from a person in a minimally conscious state was not, in the circumstances, in that person’s best interests. The Court also made general observations for future cases.

See our earlier posts here and here for a summary of the facts of this case.

The judgment

Since M had left no legally valid advance decision expressing her wishes to forego life-sustaining treatment, the court had to determine whether it would be in M’s best interests to withdraw artificial nutrition and hydration (ANH). Continue reading →

We posted earlier on the Court of Protection’s refusal to declare that doctors could lawfully discontinue and withhold all life-sustaining treatment from a patient in a minimally conscious state (MCS) – “just above” a vegetative state (VS), which itself is slightly higher than a coma – read judgment.

The message underlying this ruling  is clear: if you want to avoid the risk of spending years of your life subject to aggressive medical intervention whilst imprisoned in a cage of bare-consciousness, make a living will. The Mental Capacity Act is remorseless, and courts will no longer come to the aid of those of us optimistic enough to think “it will never happen”.

We do not tend to think specifically about ending up in state of total dependency on medical support and therefore there is very little  likelihood of any significant section of the population making a formal advance decision in accordance with the Act. On the other hand, how many of us have said, as patient M said in this case, that if such a situation were to arise, we would want to “go quickly”? [para 230]

Such generalities however are to no effect. Despite the universal human instinct to live in denial of contingent disasters,  the court refused to give due weight to M’s previously expressed wish not to live a life dependent on others, because those these statements were not “specifically directed” at the consequences of withdrawing artificial nutrition and hydration (ANH) when conscious. Baker J could not consider those statements as a clear indication some eight years on from the onset of her illness, of what M would now want to happen.

Continue reading →

M and others v NHS Primary Healthcare Trust – read judgment

For the first time the courts have been asked to consider whether life-supporting treatment should be withdrawn from a patient who was not in a persistent vegetative state (PVS) but was minimally conscious. The patient’s family sought a declaration for the withdrawal of artificial nutrition and hydration withdrawn and said the woman, referred to as M in court, would not want to live “a life dependent on others”. Continue reading →

R (on the application of S) v Secretary of State for the Home Department [2011] EWHC 2120 (Admin) - read judgment

The High Court has found that the Secretary of State unlawfully detained a mentally ill foreign national who was awaiting deportation.  By failing to notify the claimant of the deportation order in good time or to follow the Home Office’s own published policies on the detention of mentally ill persons, and by detaining the claimant in degrading conditions, the Secretary of State had breached Article 3 (prohibition of inhuman and degrading treatment) and Article 5 (right to liberty and security of person) of the Convention. Continue reading →

C v United Kingdom Application no. 37334/08 – read judgment

The Strasbourg Court has rejected as manifestly ill-founded a complaint that the offence of strict liability for rape of a child under 13 violated the right to a presumption if innocence under Article 6 and respect for private life under Article 8.

This admissibility decision touches a sensitive nerve in the relationship between Strasbourg and national authorities by exploring the extent to which the Convention rights should influence prosecutorial policy.  Section 5 of the 2003 Sexual Offences Act creates an offence of strict liability, which means that penile penetration of a child under the age of 13 is an offence whether or not the victim gave consent and irrespective of the belief of the perpetrator regarding the victim’s age. This is because the law regards the attitude of the victim of this behaviour as irrelevant to the commission of the offence;  even if a child under 13 is fully capable of understanding and freely agreeing to such sexual activity, the law says that it makes no difference. He or she is legally disabled from consenting. Although absence of consent is not an ingredient of the offence, presence of consent is, material in relation to sentence which under Section 5 of the 2003 Act can range from absolute discharge to life imprisonment. Continue reading →

Oao  Neftyanay Kopaniya Yukos v Russia (Application no. 14902/04) - read judgment 

The collapse of the Russian oil giant Yukos following enforcement proceedings for multi-billion tax evasion has not prevented the ghost of the now-defunct company appearing in Strasbourg as a “victim” of the Convention.  After majority shareholder Mikhail Khodorkovsky  was prosecuted and imprisoned for fraud, the assets of Yukos were seized and the company was declared insolvent in 2006, and liquidated a  year later.  Nevertheless, the Strasbourg Court accepted its application because the issues raised by the case “transcended the person and the interests” of the applicant company. Striking out such claims, said the Court,

would undermine the very essence of the right of individual applications by legal persons, as it would encourage governments to deprive such entities of the possibility to pursue an application lodged at a time when they enjoyed legal personality…

The case raises interesting questions with regard to the policing and punishment of tax evasion, a matter which Strasbourg generally prefers to leave to national authorities. Whilst the wide margin of appreciation generally granted to a national governments cannot be boundless, there glimmers behind this ruling a reflection of  troubled water between the Council of Europe and its largest constituent. By admitting and upholding some of the complaints, Strasbourg signals its readiness to castigate failures in due process. But the rejection of the more fundamental charge of political motivation, though not exactly an olive branch, is proffered at least as a sign of non-aggression. Continue reading →

Updated |NS v Secretary of State for the Home Department (Principles of Community law) [2011] EUECJ C-493/10 (22 September 2011) - read opinion

The Common European Asylum System was designed to establish a fair and effective distribution of the burden on the asylum systems of the EU Member States. Regulation No 343/2003 was passed in order to introduce a clear and workable method for determining which single Member State is responsible for determining any given asylum application lodged within the European Union. The measure was also intended to prevent forum shopping by asylum seekers. 

Where a third-country national has applied for asylum in a Member State which is not primarily responsible for examining that application under the Regulation, it provides for mechanisms for the transfer of the asylum seeker to the Member State which is primarily responsible. Continue reading →