Passive smoking in prison not a breach of human rights – Court of Appeal

Cigarette_smokeSmith, R (on the application of v Secretary of State for Justice and G4S UK Ltd  [2014] EWCA Civ 380 – read judgment

This case raises the question of whether it is a breach of a non-smoking prisoner’s Convention right to respect for his private life and to equality of access to such rights (ECHR Articles 8 and 14) to compel him to share a cell with a smoker.

The appellant, a convicted sex offender serving a long sentence, was required between 21st and 28th March 2012 to share a cell with a fellow prisoner who was a smoker. It was known to the prison authorities that the appellant was a non-smoker, and the requirement to share with a smoker was contrary to his wishes. The sharing complained of ended when the appellant was transferred to another prison on 28th March 2012.

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Frivolous Atmospherics

1563029463_f7bb4c814fis what the technology giant Myriad calls the US First Amendment and other human rights arguments raised by their opponents in the litigation concerning Myriad’s patents over cancer gene sequences BRCA1 and BRCA2.

We’ve been here before, in this previous post and in this, and next week the US Supreme Court starts hearing arguments in the latest round of this battle. The only reason for mentioning the issue now is to draw attention to  a fascinating article by US science historian Daniel Kevles in a recent edition of the New York Review of Books.

The author provides a dispassionate view of patent law, from its roots in the philosophy of the American revolution, which gave birth to the “Progress Clause” in the American Constitution. Clause 8 authorises Congress

to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. Continue reading

The Patentability of Human Genes: more developments

Breast Cancer in DNA StrandsCancer Voices Australia v Myriad Inc 13 February 2013 – read judgment

Another battle in the war against gene patenting has been lost, this time in Australia.

The US litigation is still ongoing, with the US Court of Appeals for the Federal Circuit upholding Myriad’s patents on DNA sequenced in the laboratory: see my post on that judgment. On 30 November 2012, the US Supreme Court announced that it would hear an appeal in the Myriad case. The US law in relation to the patentability is therefore not likely to be settled until the Supreme Court reaches it own decision on the issue.

This Federal Court ruling in Australia has now endorsed the government’s rejection of calls for an outright ban on the patenting of genes  by ruling that  isolated nucleic acid (including isolated DNA and RNA) is patentable.   Continue reading

Unlawful to refuse support for Portuguese with AIDS – Nearly Legal

De Almeida, R (on the application of) v Royal Borough of Kensington and Chelsea [2012] EWHC 1082 (Admin) – Read judgment

This was a judicial review of RBK&C’s refusal to provide support under s.21 and s.29 National Assistance Act 1948 and indeed to carry out an assessment under s.47 of the National Health Service and Community Care Act 1990.

Mr De A is a Portuguese national. He lived in the UK from 1998 to 2001 and from 2008 to date. He worked during the first period and for a year after his return. Mr De A had contracted HIV and AIDS. His health deteriorated so that he was not able to work. His prognosis in October 2010 was that he had about a year to live. At the time of the first hearing in this case in November 2011, his prognosis was about 6 months.

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Consultation on children’s heart surgery was lawful, rules Court of Appeal

Royal Brompton and Harefield NHS Foundation Trust, R (on the application of) v Joint Committee of Primary Care Trusts & Anor [2012] EWCA Civ 472 – Read judgment.

Marina Wheeler of 1 Crown Office Row appeared for the successful Appellant in this case. She is not the author of this post

When is reorganisation of healthcare services unlawful? When can consultation, rather than a final decision, successfully be challenged? These were the questions dealt with by the Court of Appeal in relation to the reconfiguration of paediatric heart surgery services. The Bristol Royal Infirmary scandal had left these services in need of change; the Court of Appeal found that there was nothing unlawful in the consultation process resulting in the Royal Brompton failing to be chosen as one of the two specialist centres in London.

Following the failures in Bristol that were subject to a public inquiry in 1998, there have been a number of reports on paediatric heart surgical care. This is an extremely specialised area of medicine. The recent trend has been for such specialist areas (another example is major trauma care) to become concentrated in fewer hospitals: the principle being that when professionals come into contact with such work more regularly they become better at it; spreading such cases wide and thin results in poor outcomes.

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GP’s rights not violated by suspension from performers list

Malik v United Kingdom 23780/08 [2012] ECHR 438 (13 March 2012) – Read judgment

The European Court of Human Rights held that the suspension of a GP from the Primary Care Trust (PCT) Performers List did not violate his right to peaceful enjoyment of possessions under Article 1 Protocol 1 (A1P1) of the European Convention on Human Rights. The Court declined to decide whether there was a possession that could be interfered with in this case, but held that suspension did not affect Dr Malik.

Dr Malik ran a general practice from premises he owned in London. He was under a general medical services contract with his PCT so that he had to ensure patients on his list were provided with GP services (whether by himself or a salaried doctor); his premises was rented (for a notional amount) so that it could be used for NHS services. Dr Malik was also on the PCT’s performers list so that he personally could provide GP services.

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Case summary: Cigarette vending machine ban not breach of human rights

Sinclair Collis Limited, The Members of National Association of Cigarette Machine Operators (Interested Party) v Secretary of State for Health [2010] EWHC 3112 (Admin)Read judgment or Rosalind English’s analysis of the decision

The High Court has ruled that the Secretary of State for Health did not breach the human right to peaceful enjoyment of property or European Union law by banning the sale of tobacco products from automatic vending machines.

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