Sir Robert Francis’ Review of Whistleblowing Processes in the NHS – Joanna Glynn QC

stream_imgIt has long been recognised that enabling healthcare professionals to speak up about concerns at work is a key element of the promotion of patient safety. The Final Report of the Freedom to Speak Up review of whistleblowing processes in the NHS was published on 11 February 2015.

Sir Robert Francis recommends the implementation of twenty “Principles” and “Actions” by organisations which provide NHS healthcare and by professional and systems regulators. These measures are to address “an urgent need for system wide action,” in spite of some positive developments in the handling of whistleblowing processes since the February 2013 report of the public inquiry into the failings at the Mid Staffordshire NHS Foundation Trust.

The Principles and Actions appear under five “overarching themes” which are addressed at chapters 5-9 of the 222 page report, each chapter describing the Principles that should be followed to bring about the change required, and the Actions which follow from each. Annex A to the report is a summary of good practice which cross refers to the Principles. Continue reading

The Investigatory Powers Tribunal and the rule of law – Natasha Simonsen

gchqLiberty & Ors v GCHQ [2015] UKIPTrib 13_77-H (6 February 2015) – read judgment

Despite being hailed as an ‘historic victory in the age-old battle for the right to privacy and free expression’, closer examination of a recent ruling by the Investigatory Powers Tribunal (‘IPT’)  reveals it to have been a hollow victory.

The case arose from the Snowden leaks, which unveiled a vast communications interception program led by the US National Security Agency (‘NSA’). Intercepted communications can include the content of emails as well as ‘metadata’, and can extend to purely internal communications as well as communications with a US connection. For example, an email exchange between Leeds and London may be liable to interception by the NSA simply because it happens to be routed through a US server at some stage along the line. The Regulation of Investigatory Powers Act 2000 (‘RIPA’) establishes a framework for interception of communications by UK authorities, but of course those provisions don’t apply to interceptions by foreign state authorities in their own territory. Once intercepted by the NSA, mutual intelligence sharing arrangements can lead the same Leeds-London email to be handed over to the UK authorities, notwithstanding that the UK authorities would have needed a RIPA warrant had they wished to conduct the interception themselves. Continue reading

Critics of Islam prevented from entering UK to attend Lee Rigby rally

rigby-mother_2659292bGeller and another, R (on the application of) v  The Secretary of State for the Home Department [2015] EWCA Civ – read judgment

This short case involves the old dilemma of public order law: whether it is right to shut down speech when the speaker himself does not intend to incite violence, but whose presence it is said may lead third parties to commit violence. Indeed the facts of this particular case go further than that , because the applicants had no plans to make any public address during their proposed visit to Britain. It was their presence alone which was feared would inflame “community tensions”.

The applicants were two well-known US writers whose critical views of Islam led to them being prevented from entering the country in May 2013, to speak at a rally  in the aftermath of the terrorist murder of Drummer Lee Rigby.  An exclusion order was issued against them on grounds of public order, of which they sought judicial review. This was their appeal against the Immigration Tribunal’s refusal to allow them to proceed with the judicial review claim. Continue reading

Court of Appeal strikes down state immunity rules that prevent embassy employees seeking justice – Diarmuid Laffan

SudanBenkharbouche & Anor v Embassy of the Republic of Sudan [2015] EWCA Civ 33, 5th February 2015 – read judgment

This judgment concerned the conjoined appeals of Ms. Benkharbouche and Ms. Janah which arose from employment law claims brought against, respectively, the Sudanese and Libyan embassies. Certain of their claims, such as those for unfair dismissal, were founded on domestic law. Others, such as those under the Working Time Regulations 1998, fell within the scope of EU law. All were met with pleas of state immunity under the State Immunity Act 1978.

The Court of Appeal’s judgment provides a neat illustration of the relative remedial potency, on the one hand of human rights claims based on the European Convention on Human Rights by way of the Human Rights Act 1998, and on the other, those based on the EU Charter of Fundamental Rights via the doctrine of ‘horizontal direct effect’. Continue reading

Supreme Court says Welsh NHS charges Bill in breach of A1P1

Asbestos-588x340Recovery of Medical Costs for Asbestos Diseases (Wales) Bill: reference by Counsel General for Wales [2015] UKSC 3, 9 February 2015 – read judgment here

Sounds like a rather abstruse case, but the Supreme Court has had some important things to say about how the courts should approach an argument that Article 1 of Protocol 1 to ECHR (the right to peaceful enjoyment of possessions) is breached by a legislative decision. The clash is always between public benefit and private impairment, and this is a good example. 

The Welsh Bill in issue seeks to fix those responsible for compensating asbestos victims (say, employers) with a liability to pay the costs incurred by the Welsh NHS in treating those victims. It also places the liability to make such payments on the insurers of those employers.

In short, the Supreme Court found the Bill to be in breach of A1P1, as well as lying outside the legislative competence of the Welsh Assembly.  Let’s see how they got there, and compare the conclusion with the failed A1P1 challenge brought in the AXA case (see [2011] UKSC 46, and my post here) concerning Scottish legislative changes about respiratory disease.
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DNA sample taken for criminal purposes may not be used for paternity test – Amy Woolfson

dna-evidenceX & Anor v Z (Children) & Anor [2015] EWCA Civ 34 – read judgment

The Court of Appeal has ruled that it would not be lawful for DNA originally collected by the police to be used by a local authority for the purposes of a paternity test. 

Factual and legal background

X’s wife had been found murdered.  The police took DNA from the crime scene.  Some of the DNA belonged to X’s wife and some was found to be X’s.  X was tried and convicted of his wife’s murder.

X’s wife had young children and they were taken into the care of the local authority.  During the care proceedings X asserted that he was the biological father of the children and said he wanted to have contact with them.  He refused to take a DNA test to prove his alleged paternity.  The local authority asked the police to make the DNA from the crime scene available so that it could be used in a paternity test.  The police, with the support of the Home Secretary, refused on the grounds that they did not believe that it would be lawful to do so. Continue reading

Supreme Court of Canada upholds physician-assisted dying

TaylorCarter v. Canada (Attorney General), 2015 SCC 5 (CanLII) 6 February 2015 – read judgment

The Supreme Court of Canada has upheld a challenge to the constitutionality of the prohibition on assisted dying, saying that since they last ruled on this issue in the 1993 case of Rodriguez (where a “slim majority” upheld the prohibition), there had been a change in the circumstances which “fundamentally shifted the parameters” of this debate.

The Court issued a declaration of invalidity relating to those provisions in the Canadian criminal code that prohibit physician assisted dying for competent adults who seek such assistance as a result of a “grievous and irremediable” medical condition that causes “endurable and intolerable” suffering. These laws should be struck down as depriving those adults of their right to life, liberty and security of the person under Section 7 of the Canadian Charter of Rights (The Constitution Act 1982)

Importantly, the court recognised what has long been proposed by campaigners on both sides of the Atlantic, that the prohibition deprives some individuals of life, as it has the effect of forcing people to take their own lives prematurely, for fear that they would be incapable of doing so when they reached the point where suffering was intolerable. Continue reading