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How to determine “best interests” in the case of an adult lacking capacity, where a proposed medical donation for the benefit of a close relative may cause lasting harm to the donor?
Here, MC was the subject of an application by an NHS Trust seeking the court’s consent for the harvesting of peripheral blood stem cells so they can be donated to her mother who has chronic leukaemia. As Cohen J noted, this was the first time that an application for the extraction of bone marrow or stem cell donation by someone lacking capacity had come before the Court of Protection and the first time the Human Tissue Authority (“HTA”) had been involved in a case of this nature.
MC’s mother had been diagnosed with leukaemia several years previously. The medical advice was that despite repeated cycles of chemotherapy she had not achieved remission and her life expectancy without a stem cell transplant was estimated to be about 12 months. Other members of family have been screened as potential donors but MC was the only one who was a match.
It was established that MC herself, who had long standing learning and language difficulties, did not grasp the implications of the donation procedure.
PBSC donation is not trivial. MC would be required to have repeated screening blood tests and four injections given over consecutive days. The purpose of these injections is to encourage the stem cells to move out of the bone marrow and into the blood stream. The side effects include pain and flu-like symptoms, and the procedure would require hospital visits by MC in the midst of a pandemic.
In determining whether this would be in MC’s best interests, it was important to bear in mind that this procedure would have no physical benefit for MC herself. It would be “entirely to benefit a third party.”
The fact that such a process would obviously benefit the plaintiff is not relevant unless, as a result of the defendant helping the plaintiff in that way, the best interests of the defendant are served. [Re Y (Mental Patient: bone marrow donation) [1997] Fam 110].
On the other hand, Morgan J in Re G (TJ) observed that
The word “interest” in the best interests test does not confine the court to considering the self-interest of P. The actual wishes of P, which are altruistic and not in any way, directly or indirectly self-interested, can be a relevant factor. [54] [2010] EWHC 3005 (COP)
In this case, the determination of “best interests” was a relatively easy one to make. For MC’s mother, the stem cell donation procedure would elevate a poor chance of survival to a 43-45% survival rate at 5 years, and that was obviously a “potentially highly significant benefit.” There were clear benefits, emotional, social and psychological, to MC of her mother’s life being extended. It was therefore “overwhelmingly” in MC’s best interest to participate in the proposed programme and donate her stem cells for the benefit of her mother. “It was in MC’s best interests as much her mother’s.”
Despite the clarity of the case before him, Cohen J emphasised the concerns of the Official Solicitor in this unusual set of circumstances:
Apparently, there are about 65 individuals each year under the age of 18 for whom the HTA gives approval for this sort of procedure. It is not known how many of those individuals have difficulties with capacity in the way MC has. MC’s case has come before the court because she is in law an adult in circumstances where there is no Lasting Power of Attorney or a Court Appointed Deputy who can give consent
For those under the age of 18, on the other hand, there is something of a vacuum in the law. The Health Authority only owes a duty of care to the donee; and the HTA is only obliged to check if there is consent (which is sufficient if given by a parent) and that no money has changed hands, which is prohibited.
Nowhere is there at the centre of what is being considered either by the treating Trust or the Human Tissue Authority, the best interests of the donor.
In his concluding remarks, Cohen J called for “a considered risk and benefit analysis by the accredited assessor”, that is, a considered deliberation of the factors set out within s.4 of the Mental Capacity Act 2005 to be performed in each case where the HTA is faced with an issue of capacity of the donee.
It is just over five years since the landmark United States Supreme Court decision in the case of Obergefell v Hodges (26 June 2015), and just over fifty-one years since the Stonewall riots (28 June 1969). To the many important dates in Pride Month must now be added 15 June 2020, the date of the Supreme Court’s decision in Bostock v Clayton County, which confirmed that is, in fact, illegal to fire an employee because they are homosexual or transgender.
It might seem surprising to many readers of this blog that there was a question about this. In the United States. In 2020. Yet even here in the UK it can hardly be said that employment protections for gay and transgender people have existed since time immemorial. It was only in December 2003, for example, that the UK Government enacted the Employment Equality (Sexual Orientation) Regulations 2003, which prohibited employers from committing direct and indirect discrimination, victimisation and harassment “on grounds of sexual orientation” (for which thanks is owed to the European Union, which mandated such legislation pursuant to the Equal Treatment Framework Directive of November 2000).
It can be said, however, that the legislation in the UK is sufficiently clear to put the question beyond doubt. Since 2010, sexual orientation and gender reassignment have been “protected characteristics” for the purposes of general discrimination law, pursuant to sections 4, 7 and 12 of the Equality Act 2010.
The law in the United States is not so explicit. Rather, Title VII of the Civil Rights Act 1964 makes it “unlawful…for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual…because of such individual’s race, colour, religion, sex, or national origin.” The question for the Supreme Court in Bostock was whether the prohibition of discrimination because of an individual’s sex also entailed a prohibition of discrimination on the basis that an employee was gay or transgender.
Three cases were being appealed together, and the facts in each of them were simple, and stark:
Mr Gerald Bostock worked for his local authority (Clayton County) in Georgia as a child welfare advocate. After a decade of employment, during which time the County won national awards for its work, Mr Bostock made the fateful decision to start participation in a recreational gay softball league. He was promptly fired.
Mr Donald Zarda was a sky-diving instructor in New York. He tried to reassure a female customer who had concerns about a tandem skydive with a male instructor by confirming that he was “100% gay”. She complained, and he was dismissed days later.
Ms Aimee Stephens worked in a funeral home in Michigan. At the start of her employment she presented as male. Two years into her employment she underwent psychiatric treatment for “despair and loneliness” and was diagnosed with gender dysphoria. Her clinicians recommended that she start to live as a woman. Several years later, when she informed her employer that she would be returning to work as a woman after her vacation, she was fired because it was “not going to work out”.
In all three cases the employers openly acknowledged that their motive for dismissing their employees was that they were gay/transgender; but they said that was a wholly lawful thing to do. The plaintiffs argued that it was not, pursuant to a proper reading of Title VII of the Civil Rights Act 1964.
The decision was hotly anticipated. In the United States, the appointment of judges to the Supreme Court is lamentably politicised, and after President Obama’s nomination of Merrick Garland had been blocked by the Republican-controlled Senate in 2016, and the current occupant of the White House had apparently assured a 5-4 conservative majority by appointing two justices (most recently, following a harrowing confirmation process, Kavanaugh J), socially progressive groups could be forgiven for awaiting the judgment with some trepidation.These background issues are discussed further on the blog here.
On this occasion, they need not have worried. The split of votes was a refreshingly decisive and bipartisan 6-3, including Chief Justice Roberts. What’s more, the majority opinion was written by Gorsuch J, a “conservative justice” appointed in 2017.
The opinions make for a thoroughly enjoyable read (don’t be put off by the 172 pages — it is mostly appendices to Alito J’s dissenting opinion). As a student of English law, I am used to reading judgments which are characterised by temperate language, caveats, a degree of circumspection, or even consternation. In contrast, at least in this case, the opinions of the justices (particularly Gorsuch and Alito JJ) read like the most passionate of essays or written arguments — almost as if they were advocates rather than judges.
This case is a timely illustration of the unenviable task faced by judges, doctors and mental health professionals during Lockdown.
This judgment was delivered following a remote hearing conducted on a video conferencing platform of an urgent application brought by the University Hospital Coventry and Warwickshire NHS Trust. In this final hearing, held remotely, the Trust have asked the Court of Protection to consider questions of capacity and best interests relating to a young woman named in this judgment as “K.”
K, the patient, was 36 years old and lived in secure accommodation. She had never been formally assessed but had been to a special needs school and was recognised as having learning difficulties. In late May she was diagnosed with cervical cancer. In this application, the Trust sought an order declaring that K lacked the capacity to consent to the medical treatment for her cancer and further, that it was in her best interests to undergo a combination of radiotherapy and chemotherapy with the aim of trying to cure her or at least to provide her palliative and symptomatic relief.
The judge noted consensus amongst the treating clinicians both in respect of K’s capacity to understand the treatment and that receiving the treatment would in K’s best interest. K’s mother agreed. But the application had been properly brought before the court. Firstly, because the proposed treatment was highly intrusive, secondly it involved the premature onset of menopause, but most importantly because the treatment plan was so onerous that there was distinct possibility that K might withdraw her co-operation from it as it became more challenging.
As Hayden J observed, K was a young woman who had an understanding that she had a condition which was serious or bad, but he did not believe that she understood that she might die from it:
although K has heard the word, “cancer,” it had not sunk in that this is a life – threatening condition. The judge accepted the expert evidence to the effect that “K can understand words and concepts to a degree but cannot retain them to evaluate them so as to be able to use or weigh them. In these circumstances she lacks the capacity to consent to medical treatment.”
It was with “very little hesitation” that the court concluded that K did not have the capacity to evaluate the necessary decision in relation to her medical treatment. Hayden J granted the hospital’s application and commended the pre-emptive approach taken by the trust, which was to commence chemotherapy treatment on the 30th of June 2020.
News just in: The UK’s Nightingale hospitals will be converted into cancer testing centres from next week to help deal with the growing backlog in testing.
Together with anti-racism protests sparked by the death of George Floyd, the coronavirus pandemic has continued to dominate the news. Two recently published reports have highlighted flaws in the government’s response in relation to the provision of social security and domestic abuse support during the crisis.
The pandemic has propelled an estimated 3 million new claimants onto universal credit, prompting fresh criticisms of the UK’s social security system. On 22 June, the Work and Pension Committee published a report on the response by the Department for Work & Pensions to the outbreak, available in full here. While praising the efforts of DWP frontline staff, Chair Rt Hon Stephen Timms MP said the pandemic “has highlighted weaknesses” in the system. The Committee found shortcomings in relation to:
Legacy benefits. While the government had raised the rates of Universal Credit and Working Tax Credits to reflect the fact that the virus has increased living costs for disabled people, people on benefits yet to be replaced by UC have not been similarly helped. It was “unacceptable” that such people were left facing hardship through no fault of their own.
No Recourse to Public Funds. The report calls for the suspension of this condition. During a pandemic, it argues, it cannot be in the public interest to deny people, including key workers and frontline staff, access to the welfare safety net on the basis of their immigration status.
Universal Credit. The minimum five-week wait for a first payment was singled out for particular criticism. It led to many people taking out a repayable Advance, but the system lacked any flexibility to suspend repayments of these Advances.
In related news, and on the same day, four single mothers secured a victory against the government. The Court of Appeal unanimously ruled that the Secretary of State for Work and Pensions (SSWP) has acted irrationally and unlawfully by making universal credit regulations which fail to take into account that the date monthly salaries are paid can vary because of weekends and bank holidays.
Considerable criticism has been levied against the government for its provision of essential support and services for survivors of domestic violence before and during the pandemic. Among others, Human Rights Watch argue that the crisis has “exposed longstanding flaws” in the system exacerbated by an “erosion of support for specialist domestic abuse services”.
On 25 June, following a review by legal, charitable and academic experts assessing the risk of harm to children and parents in private law children’s cases, the MoJ has published a report, available in full here. The Domestic Abuse Commissioner Nicole Jacobs noted with approval that the report’s publication comes “in time to implement its recommendations through the Domestic Abuse Bill”, which entered its its report stage in the Commons last Thursday. The report’s key recommendations included:
Physical barriers. Victims will be provided with separate court entrances and waiting rooms, as well as protective screens to shield them from their alleged abuser in court.
Preventing abusers from dragging victims back to court. Judges will make it easier for judges to issue barring orders to protect victims from harassment and re-traumatising.
Reviewing “parental involvement”. The report states that “[a] review of the presumption of parental involvement in s.1(2A) of the Children Act 1989 is needed urgently in order to address its detrimental effects.” In cases of domestic abuse, it could prioritise the abusive power’s right to family life, above the child’s welfare and the abused parent’s right to safety.
Trialling a “problem solving approach”. On the basis that an adversarial approach in the family courts often worsened conflict between parents and retraumatised victims and their children, a new investigative approach will be trialled. Judges will explore evidence and try to get to the root of issues, rather than parents presenting their cases against each other with limited intervention.
In Other News
Liberty and Ed Bridges, a Cardiff resident, have brought a legal challenge against the use of automated facial recognition technology by South Wales police in the Court of Appeal. It was argued that the technology’s use radically alters the way in which Britain is policed, is racially discriminatory, breaches privacy rights and is contrary to data protection laws.
A review into the use of pain-inducing techniques against children in custody has concluded that they should be an “absolute exception” to save life or prevent serious harm, but stopped short of calling for an outright ban.
Leilani Farha, the UN’s special rapporteur on adequate housing, has warned the UK government that its failure to replace dangerous cladding on buildings in the wake of the Grenfell Tower fire could be a breach of international law.
In the Courts
LC (A Child – Placement Order) [2020] EWCA Civ 787: the Court of Appeal dismissed an appeal by a local authority against a decision to refuse the authority’s placement order in respect of a child. The two-year-old child, who had an Indian father and a Hungarian Roma mother, was of unusual heritage, which she shared with her two brothers, aged eight and seven. The authority had argued that the best option for the child was to be adopted, while her older siblings were placed in long-term foster care. The recorder had ruled that the stability this arrangement would offer did not outweigh the importance of the child maintaining a bond with her birth family, including her siblings, and her cultural heritage. The court was satisfied the recorder had “carried out a fair and balanced analysis.” The case comes shortly after the Supreme Court’s consideration of the role of siblings in the procedures by which children’s hearings in Scotland make compulsory supervision orders.
Inkster v R [2020] EWCA Crim 796: the Court of Appeal quashed the appellant father’s conviction for breach of a non-molestation order preventing him from directly contacting the complainant mother. The mother’s repeated failure to respond to contact from designated third party intermediaries in relation to child arrangements amount to a “reasonable excuse” for making contact. The judge’s interventions had placed pressure on the unrepresented appellant to plead guilty by leading him to wrongly believe that he had no defence on the basis of a reasonable excuse.
Bater-James & Anor v R. [2020] EWCA Crim 790: the Court of Appeal dismissed two otherwise unrelated appeals against conviction which were listed together to provide the court an opportunity to consider various issues relating to the retention, inspection, copying, disclosure and deletion of the electronic records held by prosecution witnesses. The cases focussed on claimants alleging sexual assault, but the four principles laid out would be “equally relevant – depending always on the facts – to other prosecution witnesses.”
First, a “reasonable line of inquiry” was necessary for investigators to seek to review a witness’s digital material, which would depend on the facts.
Second, investigators should adopt an incremental approach to reviewing a witness’s electronic communications.
Third, a complainant should be reassured that (i) the prosecution will keep them informed as to any decision made as to disclosure, (ii) that any device would only be inspected if there is no other appropriate method of discharging the prosecution’s disclosure obligations, and (iii) that material will be provided to the defence only if it meets the strict test for disclosure, in a redacted form.
Fourth, if a complainant refuses to permit access to a device or deletes relevant material, the court will need to consider the reasons for this action carefully.
Gerulskis & Anor v The Prosecutor General’s Office of the Republic of Lithuania [2020] EWHC 1645: the High Court heard granted two appeals and dismissed the rolled up hearings against orders for extradition to Lithuania. The court found that there did not exist a real risk of impermissible treatment contrary to article 3 of the ECHR. The “danger caused by the spread of COVID-19” was raised, but dismissed since there was no evidence of the virus in prisons in Lithuania. There had been no breach of article 8, since the interference with the appellants’ rights and the rights of their children had been correctly balanced against the public interest in complying with extradition obligations. The extraditions had therefore been proportionate.
On the UKHRB
Anna Dannreuther considersRe X [2020] EWFC 39, which concerned the statutory criteria for granting parental orders over children born as the result of surrogacy arrangement in circumstances involving the death of an intending parent.
Henry Tufnell clarifies the confusion surrounding cross-border travel between England and Wales under the Coronavirus Regulations.
Ben Christman discusses the functions and powers of Scotland’s new environmental watchdog, Environmental Standard Scotland, in the UK Withdrawal from the EU (Continuity) (Scotland) Bill.
Clodagh Bradley QC outlinesGMC v Awan[2020] EWHC 1553, which concerned GP’s sexually motivated online chat with someone posing as a 13-year-old child.
Rosalind English surveys a report considering the GDPR requirements for machine learning in healthcare and medical research.
In the latest episode of Law Pod UK, Emma-Louise Fenelon speaks to Martin Forde QC, Independent Adviser to the Windrush Compensation Scheme, about racial inequality in the UK, in immigration history and at the Bar.
In the preceding episode, Fenelon speaks to Richard Scorer, Head of Abuse at Slater and Gordon, about progress of the Independent Inquiry into Child Sexual Abuse.
In Re X (Parental Order: Death of Intended Parent Prior to Birth) [2020] EWFC 39 the Family Court read down section 54 of the Human Fertilisation and Embryology Act 2008 to enable a parental order to be granted where an intending parent died shortly before the child’s birth. This ensured the child’s Article 8 and 14 rights were protected, and prevented much emotional hardship for this family.
The case has already been cited in Re A (Surrogacy: s.54 Criteria) M [2020] EWHC 1426 (Fam) as comprehensively setting out when a court may ‘read down’ the statutory criteria in section 54.
Parental orders – an introduction
Section 54 of the Human Fertilisation and Embryology Act 2008 enables two people to apply for a parental order over a child who has been born as the result of a surrogacy arrangement. A parental order transfers legal parenthood from the legal parents at the time of the child’s birth (usually the surrogate and – if applicable – her husband or civil partner) to the intended parents.
Parental orders are recognised as having a “transformative effect on the legal relationship between the child and the [intended parents]. The effect of the order is that the child is treated as though born to the applicants. It has a clear implication as regards the right to respect for family life under Article 8.” A v P [2011] EWHC 1738 (Family), per Munby J [24].
It is now over a month since the death of George Floyd.
The UK Human Rights Blog and Law Pod are committed to continuing the conversation about racism in the UK prompted by his death and the Black Lives Matter protests.
Michael Paulin has discussed a number of issues in his recent article.
The beginning of this week marked Windrush Day, introduced in June 2018 on the 70th anniversary of the Windrush migration, to celebrate the contribution of the Windrush Generation and their descendants to Britain. In Episode 117, Emma-Louise Fenelon speaks to Martin Forde QC, Independent Adviser to the Windrush Compensation Scheme about racial inequality in the UK, in immigration history and at the Bar. The Counsel magazine front cover interview with Martin Forde QC in their June Issue is available here.
This post is written in response to a comment by a reader, John Burton, of Rosalind English’s post on the latest in the Lockdown challenge launched by Simon Dolan in which Philip Havers QC has been instructed.
We don’t dispense legal advice from the UKHRB, but I thought this was a very interesting question and the editorial board felt it best to try to answer it in a separate post, so here it is, and many thanks to Henry Tufnell, one of our pupil barristers, soon to become one of our new tenants, for taking up the challenge.
The vigilant gaze of the European Commission will begin to turn away from UK when the post-Brexit transition period ends at the turn of the year. The Commission has used its powers as the ‘guardian of the treaties’ to enforce EU laws relating to nature conservation, waste and air pollution. Its absence will leave a governance gap, and replacement institutions are needed to ensure that environmental laws are enforced.
This article discusses the functions and powers of the ESS in the Bill and then analyses the proposals through the lens of the UN’s Paris Principles (used for assessing the credibility of national human rights institutions).
This week the UK government lowered the COVID-19 alert level from level 4 to level 3, with non-essential shops reopening for business on 15 June. July 4 will be “the next big stage” in the government’s plan; it is expected that pubs and restaurants may reopen then. The 2m social distancing rule is under review, and the government have implied that it may be lifted soon.
Meanwhile, the contact tracing app which had been developed by the ‘healthtech’ body NHSX has been scrapped, owing to severe limitations in detecting contacts from iPhones. The government will now move forward instead with a Bluetooth tracing system developed by Google and Apple, looking to incorporate the successful parts of the NHSX app where possible. Whichever system is eventually deployed will face intense scrutiny. Contact tracing apps worldwide are raising human rights concerns, as has been explained by Amnesty International and other organisations.
Black Lives Matter protests continued this week across the cities of the UK, with protesters calling for the removal of statues of figures from UK history associated with the colonial past of the British Empire, such as that of Winston Churchill in Parliament Square. Protesters have also called for the removal of Boris Johnson’s Director of Policy, Munira Mirza. Mirza is a long-standing opponent of the ‘anti-racism’ movement which has gained significant ground during the last few weeks, having been a critic of Blairite ‘multiculturalism’ and the 2017 Lammy Review of BAME groups in the justice system, and having played down allegations of institutional racism such as those raised by the Windrush scandal. She has been asked by the Prime Minister to head a new commission on racial inequalities.
In other news:
The US Supreme Court issued two landmark decisions this week. In Bostock v Clayton County, the court interpreted the word ‘sex’ in Title VII of the Civil Rights Act 1964 as including both sexuality and gender identity, such that it is unlawful for an employer to fire someone merely for being gay or transgender. In Department of Homeland Security v Regents of the University of California et al, the court blocked the Trump administration’s attempt to end Deferred Action for Childhood Arrivals (‘DACA’), a program which protects child immigrants from deportation, on the basis that the administration had failed to provide a ‘reasoned explanation’ for its decision.
UN Human Rights Chief Michelle Bachelet has called for worldwide action on systemic racism. Speaking to the UN Human Rights Council, she said that “behind today’s racial violence, systemic violence and discriminatory policing lies the failure to acknowledge and confront the legacy of the slave trade and colonialism”, and urged countries to “make amends for centuries of violence and discrimination, including through formal apologies, truth-telling policies, and reparations in various forms.”
The US Congress has passed a new law, under which Chinese officials deemed to be responsible for the arbitrary detention and torture of Uighurs will be denied entry to the country and have any assets held in the USA frozen. China’s foreign ministry has strongly criticised the law, stating that the US should ‘immediately correct its mistakes’.
In the courts
There were three noteworthy decisions in the courts this week. These considered, respectively, workers’ rights and coronavirus; criminal procedure and Article 5 ECHR; and Scottish family law and Article 8 ECHR.
R (oao Adiatu & anor) v HM Treasury: this was a judicial review of decisions made by the Treasury in respect of the availability of Statutory Sick Pay (‘SSP’) and the Coronavirus Job Retention Scheme (‘JRS’) during the pandemic. The challenge was brought by Mr Adiatu, a Nigerian Uber driver with leave to remain, together with the Independent Workers’ Union of Great Britain. The Claimants sought a declaration that the Treasury’s decisions were discriminatory under the ECHR and/or EU law and/or in breach of the public sector equality duty (‘PSED’) under s.149 Equality Act 2010. The court rejected this on all counts: the Treasury was within its margin of appreciation under the ECHR, noting the urgency and practical difficulties involved in applying SSP and the JRS during the coronavirus crisis; the means adopted by the Treasury were proportionate; and ministerial submissions prior to the roll-out of the JRS discussing the possible effects on women and BAME people confirmed that sufficient regard had been had by the Treasury to the PSED.
Archer v The Commissioner of Police of the Metropolis: in 2012, aged 15, the Claimant was involved in an incident at a chicken shop in Woolwich where he was stabbed in the back and head by local gang-members. He was arrested on suspicion of violent disorder and possession of an offensive weapon, and subsequently detained pursuant to s.38(1)(b)(ii) Police and Criminal Evidence At 1984 (‘PACE’), which authorises detention where “the custody officer has reasonable grounds for believing that [the arrested juvenile] ought to be detained in his own interests.” He sought a declaration of incompatibility on the basis of Article 5 ECHR, together with damages for unlawful detention under s.8 Human Rights Act 1998. The court held that his detention had not been incompatible with Article 5 ECHR, and so he was not entitled to damages, nor was the impugned section of PACE incompatible with Article 5. In reaching this conclusion, the court followed IA v France, where it had been held that ‘own protection’ could be a ‘relevant and sufficient’ reason for detention. Although the detention was justified by the Claimant’s own protection, it was still ‘with a view to’ bringing him before a court, and therefore was “for the purpose of bringing him before the competent legal authority” under Article 5(1)(c)– even if but for the need to protect the suspect, detention would not have been necessary. Granting the declaration would have risked making it “impracticable for the police to fulfil their duties”.
ABC v Principal Reporter & Anor (Scotland): this appeal concerned the role of siblings in the procedures by which ‘children’s hearings’ in Scotland make compulsory supervision orders (‘CSOs’). The hearings in question are attended by the child in question, together with ‘relevant persons’, who must attend or face criminal sanction; ‘relevant persons’ are understood in the legislative scheme as persons who have had a significant involvement in the child’s upbringing, and therefore will ordinarily not include siblings. The Claimants, ‘ABC’ and ‘XY’, had not been deemed relevant persons in respect of their younger siblings who were made subject to CSOs. They argued that the legislative scheme was incompatible with Article 6 and Article 8, and that siblings should have procedural rights in relation to these hearings, in particular to attend and make representations. The court rejected this argument, noting that concerns about privacy and the dissemination of sensitive information outweighed the rights of siblings in these cases. However, Lady Hale and Lord Hodge emphasised in their judgement that there must always be a ‘bespoke enquiry about the child’s relationship with his or her siblings’ in each case.
Yesterday’s judgment of Mr Justice Mostyn in GMC v Awan [2020] EWHC 1553 (Admin) illustrates the fact that the Court’s deference to the specialist Tribunal’s judgment on sanction continues to be extended to cases relating to sexually motivated online misconduct, as also occurred in GMC v X [2019] EWHC 493 (Admin) last year, when Soole J upheld a 12-month suspension.
GMC v Awan concerns a GP’s sexually motivated online chat with someone posing as 13 year old child. The GMC’s appeal under section 40A of the Medical Act 1983 was dismissed by Mostyn J and the 9-month suspension imposed by the Tribunal was upheld.
The Facts
In November 2019 Dr Hafeez-Ur Rehman Awan came before the Medical Practitioners’ Tribunal facing allegations that on 5 January 2016, when he was working as a GP, he had logged into a chat room with the username “medic333” which “obviously signified that he was a member of the medical profession” [#15]. Once in the chat room, the Respondent started exchanging messages with a person with the username “Sophiasheff”, who was in fact a police officer conducting an undercover sting operation.
Close up of Asian women with hi tech digital technology screen over the eye.
PHG, linked with Cambridge University, provides independent advice and evaluations of biomedical and digital innovations in healthcare. PHG has recently published a series of reports exploring the interpretability of machine learning in this context. The one I will focus on in this post is the report considering the requirements of the GDPR for machine learning in healthcare and medical research by way of transparency, interpretability, or explanation. Links to the other reports are given at the end of this post.
Just a brief summary of machine learning in healthcare (for the detail, go to PHG’s report Machine Learning Landscape).
Machine learning typically denotes “methods that only have task-specific intelligence and lack the broad powers of cognition feared when ‘AI’ is mentioned”. Artificial intelligence (AI) can be defined as “the science and engineering of making computers behave in ways that, until recently, we thought required human intelligence.” We are only beginning to realise the scope of intelligence that is silicone-based, rather than meat-based, in the reductionist words of neurscientist and author Sam Harris. It is important too to grasp the difference between types of programming. As this report puts it,
Machine learningas a programming paradigm differs from classical programming in that machine learning systems are trained rather than explicitly programmed. Classical programming combines rules and data to provide answers. Machine learning combines data and answers to provide the rules
Recent Black Lives Matter protests in London. Image: The Guardian
“In the end, we will remember not the words of our enemies, but the silence of our friends” said Martin Luther King in the context of White America’s silence with respect to the struggle for civil rights. The Prime Minister considers it relevant that the murder of George Floyd occurred thousands of miles away – “in another jurisdiction” – yet the former colonies that now compose the United States of America is a jurisdiction which owes its common law legal system and heritage to the United Kingdom. St. George Tucker, in the appendix to his 1803 edition of Blackstone’s Commentaries, wrote that
the common law of England, and every statute of that Kingdom, made for the security of the life, liberty, or property of the subject … were brought over to America, by the first settlers of the colonies, respectively; and remained in full force therein [1].
The Black Lives Matter movement illuminates an incontrovertible chasm in the application of the rule of law in liberal democracy. The basic premise of the rule of law, which in Joseph Raz’s conception is that it should be capable of guiding behaviour, includes the necessary restriction on crime-preventing agencies from perverting the law. A society in which those tasked with upholding and applying the law – under the powers of stop-and-search and arrest – are instead themselves regular perpetrators of racist discrimination and violence, is one in which the rule of law can become a randomised hope that is more or less likely to be realised depending on the race of the citizen in question.
In Episode 116 Emma-Louise Fenelon speaks to Richard Scorer, Head of Abuse at Slater and Gordon, about progress of the Independent Inquiry into Child Sexual Abuse and in particular the investigation into abuse within minority religions (including non conformist Christian denominations, the Jehovah’s Witnesses, Baptists, Methodists, Islam, Judaism, Sikhism, Hinduism and Buddhism). The episode also examines the effect of Covid-19, and the impact virtual hearings has had on evidence at the Inquiry to date.
More information on the module on minority religions can be found here.
Ten years after the Equality Act came into force, the Equality and Human Rights Commission (EHRC) have published their findings and recommendations in a report entitled “Inclusive Justice: a system designed for all”.Although the report recognises where progress has been made, it also identifies very significant problems.
The inquiry, which covered England, Wales and Scotland, heard from defendants, legal professionals, charities, intermediaries and organisations who help people with what are often referred to as “hidden disabilities” – cognitive impairments, mental health conditions, and neuro-diverse conditions.
The EHRC’s key recommendations focus on the pre-trial phase, when important decisions are made about adjustments and whether the defendant will plead guilty or not guilty. The report is concerned both with participation and also the opportunities and risks arising from the increase in modernisation (for example, video hearings).
Conor Monighan brings us the latest updates in human rights law
In the News:
Credit: Lorie Shaull
Anti-racism protests, sparked by the death of George Floyd, continued across the world. This week much of the focus has been on statues commemorating controversial historical figures. In Bristol, campaigners toppled the statue of a 17th century slave trader called Edward Colston.
The move led to a debate about what ought to be done with such statues. The founder of the Scouts, Robert Baden-Powell, was accused of racism, homophobia, and anti-Semitism. Initially it seemed his statue would be put into storage, but following an outcry it has been boarded up instead. A number of other figures have received similar treatment, including Sir Winston Churchill.
In the US, it seems change is coming to policing. The Democratic Party is proposing a police reform bill which, if passed, would become the Justice in Policing Act of 2020. The Bill would ban chokeholds from being used, limit the use of military weapons, and restrict qualified immunity (the legal principle which has prevented many officers from being sued for alleged misconduct). President Trump confirmed that he ‘generally’ supported ending the use of chokeholds.
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