Aintree University Hospitals NHS Foundation Trust (Respondent) v James (Appellant)  UKSC 67 – Read judgment / press summary
The Supreme Court has given judgment in the first case to come before it under the Mental Capacity Act 2005. The sole judgment was given by Lady Hale (Deputy President of the Court), with whom Lord Neuberger, Lord Clarke, Lord Carnwath and Lord Hughes.
The case concerned best interests decisions in the case of a patient lacking capacity. The patient, David James, had been admitted to hospital in May 2012 aged around 68 because of a problem with a stoma he had had fitted in 2001 during successful treatment for cancer of the colon. The problem was soon solved but he acquired an infection which was complicated by the development of chronic obstructive pulmonary disease, an acute kidney injury and persistent low blood pressure. He was admitted to the critical care unit and placed on a ventilator.
A somewhat curious additional point arises out of the case of R (Antoniou) – see my earlier post for the main issue – in which the court decided that Article 2 ECHR does not require an independent investigation into deaths in state detention prior to a coroner’s inquest. There was therefore no obligation to ensure that there was an independent investigation into the suicide, or death resulting from self-harm, of a mentally ill person detained under Section 3 of the Mental Health Act 1983. There is such an investigation when a prisoner commits suicide. The Claimant thought this smacked of discrimination against the mentally disabled. The Court disagreed – on the somewhat surprising ground that you can’t be disabled once you’re dead.
Where a prisoner commits suicide, or dies as a result of self-harm, there will be an independent investigation from the outset. Any death in prison or in probation custody is automatically referred immediately to the Prisons and Probation Ombudsman for independent investigation. The Independent Police Complaints Commission performs a similar role for deaths in police, immigration or Customs & Excise detention. There is no equivalent independent investigator of deaths in mental health detention, which are investigated by the hospital where they occurred. The Claimant said this distinction discriminates between people who are mentally disabled and those of sound mind.
Human rights protection for residents in private care homes could be a step closer after the House of Lords passed an amendment to the Care Bill.
The amendment, moved by Lord Low of Dalston and supported by Lord Lester of Herne Hill QC and Lord Pannick QC, makes clear that a person who provides regulated “social care” is to be taken for the purposes of subsection 6(3)(b) of the Human Rights Act 1998 to be exercising a function of a public nature.
It is the latest development in a long-running battle to secure human rights protection for service users who are not in local authority-run care homes.
R (Antoniou) v (1) Central and North West London NHS Foundation Trust; (2) Secretary of State for Health; (3) NHS England  EWHC 3055 (Admin) – read judgment
Where a patient, detained in hospital under Section 3 of the Mental Health Act 1983, takes their own life, Article 2 imposes procedural obligations on the State to investigate the circumstances of the death. These obligations are fulfilled by a coroner’s inquest. Unlike in prison and police station deaths, there need not be any independent investigation system prior to the inquest stage, and nor does Article 2 require one.
In a previous blog post on these pages, the case of Lindsay Sandiford was examined. Sandiford – a British citizen facing the death penalty in Indonesia – had asked the UK Government for funding to help her appeal, but was refused financial help. The Court of Appeal ruled in favour of the Government, stating that the decision to provide legal aid to a British citizen abroad is a discretionary matter for the executive.
Regardless of whether one agrees with the decisions of the Government and the Court, the case raises interesting questions about the obligations that are imposed on states that have abolished the death penalty. The primary duty on states is to simply refrain from imposing the death penalty, but it is possible to detect an emerging secondary obligation to refrain from facilitating the use of the death penalty elsewhere. This issue is particularly relevant to the UK, because although the UK takes a leading role internationally in campaigning for the abolition of the death penalty, there is evidence that the UK has on occasion aided the use of capital punishment elsewhere.