Right to die, asylum and extradition – The Human Rights Roundup

The news this week has been dominated by issues relating to Article 8 and the right to die. First, we had Tony Nicklinson, a man suffering from locked-in syndrome, and then there was the case of E, a woman suffering from anorexia who was being looked after in a community hospital under a palliative care regime whose purpose was to allow her to die. In other news, just when you (or rather, I) thought the fat lady had sung for Julian Assange, there was another twist in the tale as he requested asylum at the Ecuadorian embassy.

The sad case of E came before the Court of Protection this week, a woman of 32 who had been sexually abused from the ages of 4-11, who had developed an eating disorder shortly afterwards and who had then become an alcoholic. In considering whether to make an order to force-feed her, Mr Justice Peter Jackson had to decide (1) whether she had capacity to make decisions about her treatment, (2) if not, did she have mental capacity when she made an advance decision in October 2011, and was that decision valid and applicable, and (3), if she lacked capacity and had not made a valid advance decision, was it in her best interests to receive life-sustaining treatment in the form of forcible feeding with all necessary associated measures? He found that, whilst the competing factors were almost exactly in equilibrium, the balance tipped slowly but unmistakably in the direction of life-preserving treatment.

The judgment is well worth reading. For an analysis of the case, see Richard Mumford’s post on the UKHRB.

Charon QC has considered both this case and that of Tony Nicklinson on his blog, which is recommended. In relation to E, he notes that Mr Justice Peter Jackson specified in his judgment that had the authorities not made a commitment as regards the provision of resources for E’s care, he would not have reached the conclusion that he had. He invites comment from practitioners in this field who have expertise in this complex issue.  1 Crown Office Row’s Philip Havers QC is representing the other claimant in the case, ‘Martin’.

In an eloquent article on the BBC, Tony Nicklinson explains why he wants to change the current law regarding euthanasia, stating that it cannot be acceptable that he should be denied the right to take his own life just because he is physically handicapped. He describes the conditions he lives under and argues that we must be able to devise adequate rules governing assisted dying. He has asked the High Court to rule that if, and when, he decides he wants to die, a doctor will be immune from prosecution if they help him. Rosalind English posted on this back in March on the UKHRB.

On the same topic, she has written a post on the recent ruling of the British Columbia Supreme Court that certain provisions of the Canadian Criminal Code prohibiting physician-assisted suicide violate important rights of equality, life and liberty under the Charter. She sets out the Court’s reasoning and notes that this deeply considered and humane judgment is an excellent source of comparative, ethical, medical and social material on the question of end of life decisions.

Julian Assange this week confounded observers by requesting asylum at the Ecuadorian embassy, as reported on by the Guardian. Ecuador appears to be considering the application and, until a decision is made, he will remain at the embassy under the protection of the Ecuadorean government.

For those interested in asylum and refugee law, see this post on the United Kingdom Immigration Law Blog dealing with RT (Zimbabwe) & Ors (Respondents) v SSHD (Appellant) UKSC 2011/0011 and KM (Zimbabwe) (FC) (Appellant) v SSHD (Respondent) UKSC 2012/0020, both of which turn on the application of the Supreme Court’s decision in HJ (Iran) v SSHD [2010] UKSC 31. As stated by the Court of Appeal, none of the appellants is a political refugee in the ordinary sense and so in most contexts their claims to asylum would be hopeless.

The Committee of Ministers of the Council of Europe decided to pursue negotiations with the European Union last week with a view to finalising the legal instruments setting out the way in which the EU would accede to the ECHR, as discussed by David Hart QC in this post on the UKHRB. He notes how important it is to get the fine details of accession ironed out, and queries whether one check on an over-weening EU institution might be a European Court of Human Rights.

In a post on the UKHRB, Rosalind English considers the joined Supreme Court cases of HH (Appellant) v Deputy Prosecutor of the Italian Republic, Genoa (Respondent); PH (Appellant) v Deputy Prosecutor of the Italian Republic, Genoa (Respondent) [2012] UKSC 25. These appeals concern requests for extradition in the form of European Arrest Warrants (EAW). The issue in all three cases was whether extradition would be incompatible with the rights of the appellants’ children to respect for private and family life under Article 8 of the ECHR.

The law think blog’s own roundup of the latest human rights developments in the UK from 11 to 17 June is enlightening despite being updated a week ago.

Re E (Medical treatment: Anorexia) [2012] EWHC 1639 (COP) (15 June 2012). Court of Protection orders that anorexic who had signed “end of life” declaration probably did not have capacity at time, and therefore must be force-fed by medical staff.

R (on the application of Mhlanga) v Secretary of State for the Home Department. The Administrative Court rules that a foreign criminal who cannot be deported to Zimbabwe was unlawfully detained for 4 years.

Sullivan v The Government of the United States of America & Anor [2012] EWHC 1680 (Admin) (20 June 2012). Extradition to US of man facing child sex charges blocked due to “draconian” Minnesota sex offender policy. High Court concerned by Minnesota’s “civil commital” law: sex offenders may be committed indefinitely if he is a “sexually dangerous person”.

Hizb Ut -Tahrir & Ors v Germany – 27306/07 [2012] ECHR 1045 (12 June 2012). German ban of Hizb Ut-Tahrir, organisation “violent destruction of this State and for the banishment and killing of its inhabitants”, did not breach organisation’s human rights.

• Taking stock after Abu Qatada: Assurances, secret detention and evidence in closed proceedings June 24, 2012 Karwan Eskerie
• The South African ‘Secrecy Bill’: taking stock – Caroline Stone June 24, 2012 1 Crown 
• Interests of children should not prevent extradition for serious offences June 21, 2012 Rosalind English
• BC Supreme Court grasps the nettle in right to die case June 21, 2012 Rosalind English
• When is the ECHR going to start watching the EU? June 20, 2012 David Hart QC
• What have the Inuits got to do with keeping EU law in check? June 20, 2012 David Hart QC
• New Publication: ‘Justice Wide Open’ Working Papers – Judith Townend June 20, 2012 1 Crown Office Row
• Judge orders that anorexic woman can be force-fed | Analysis June 19, 2012 Richard Mumford
• Aarhus Convention trumps EU Regulation, says EU Luxembourg Court June 18, 2012 David Hart QC