‘Do Not Resuscitate’ and the Right to Die – the Human Rights Roundup

Do-not-resuscitate-band-HRRWelcome back to the UK Human Rights Roundup, your regular game, set and match of human rights news and views. The full list of links can be found here. You can find previous roundups here. Links compiled by Adam Wagner, post by Celia Rooney.

In the News

The Right to Die

This week, in the cases of R (on the application of Nicklinson and another) v Ministry of Justice; R (on the application of AM) (AP) v The Director of Public Prosecutions [2014] UKSC 38, the Supreme Court rejected the appeal of campaigners who asserted a right to die under Article 8 of the Convention.

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Supreme Court rejects right to die appeals

Tony NicklinsonR (on the application of Nicklinson and another) (Appellants) v Ministry of Justice (Respondent); R (on the application of AM) (AP) (Respondent) v The Director of Public Prosecutions (Appellant) [2014] UKSC 38 – read judgment

On appeal from [2013] EWCA Civ 961

The Supreme Court has declined to uphold a right to die a dignified death.  However, a glimmer is is to be found in this judgment in that two out of the seven justices who concluded that it was for the United Kingdom to decide whether the current law on assisted suicide was incompatible with the right to privacy and dignity under Article 8, would have granted such a declaration in these proceedings., particularly where the means of death was one that could have been autonomously operated by the disabled appellant, leaving no doubt as to the voluntary and rational nature of his decision.

But the majority concluded that this was a matter for Parliament, not for the Courts.

The following summary is from the Supreme Court’s Press Summary

Bacground 

These appeals arise from tragic facts and raise difficult and significant issues, namely whether the present state of the law of England and Wales relating to assisting suicide infringes the European Convention on Human Rights (“the Convention”), and whether the code published by the Director of Public Prosecutions (“the DPP”) relating to prosecutions of those who are alleged to have assisted suicide is lawful. Continue reading

“Europe needs the Convention and Europe needs the Court”

PhaleTwo fascinating speeches to recommend.

Lord Phillips, former Supreme Court President, gave a thoughtful speech at Kings College on whether human rights are a “force for good or a threat to democracy”. He expressed quite significant concerns over some recent Strasbourg decisions on jurisdiction, prisoner votes etc. (you know the drill – see Rosalind’s post on the other senior judges/former judges speaking their minds).

The conclusion he reaches, on balance but also with “no hesitation”  is that “Europe needs the Convention and Europe needs the Court. … Strasbourg is a powerful force for good.

I really must do a chart of the senior judiciary and ex-judiciary’s positions on Strasbourg. They are falling over themselves to express a view.

Meanwhile, over at the Law Society of Ireland, Lady Hale gave a speech on Freedom of Religion and Belief, which readers will know is one of this blog’s pet topics (see our other posts on religion).

Old and minor convictions and cautions need not be disclosed – Supreme Court

criminal-background-checkR (On the application of T and another) (Respondents) v Secretary of State for the Home Department and another (Appellants) – read judgment

The Supreme Court has unanimously declared that government rules regarding the disclosure of spent convictions are unlawful and incompatible with Article 8 of the Convention.

One of these conjoined appeals involved T,  who was prevented from employment involving contact with children when  a police caution was disclose in respect of the theft of two bicycles when the respondent was eleven years old (see my previous post on the Court of Appeal judgment in T). In JB, the police issued a caution to a 41 year-old woman in 2001 when she was caught shoplifting (a packet of false fingernails).  In 2009 she completed a training course for employment in the care sector. She was required to obtain an “enhanced criminal record certificate” or ECRC, which disclosed the caution. The training organisation told JB that it felt unable to put her forward for employment in the care sector. Continue reading

Supreme Court revises confiscation order via A1P1

_41773060_mtic_carousel416x302R v Ahmad and others [2014] UKSC 36, 18 June 2014 – read judgment

A bit of a familiar refrain in which A1P1, the right to property, comes in and stops an order being made which would otherwise be lawful under statute: see my recent post here on the Eastenders case.

The case concerns confiscation proceedings following the conviction of two sets of defendants for carousel fraud.  A carousel fraud involves setting up a whole series of paper transactions to generate an apparent entitlement to reclaim VAT from the tax man: see the pic for an example. The VAT is repaid, at which point the money, and the fraudsters, disappear into the dust. But in these cases, they were found, prosecuted and confiscation orders made against the individuals to try and get the money back.

In the first case, the Ahmad defendants ran a company MST, and took £12.6m (£16.1m uprated for inflation) off the taxman. In the second, the Fields defendants got £1.6m (including inflation) via their company, MDL.

In each case, the order was made in those sums against each individual defendant. So each Ahmad defendant was ordered to pay £16.1m, even if some of that £16.1m was thereafter repaid by another defendant. It was this element of the order which the Supreme Court revised.

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Do Not Resuscitate notices: Patients’ rights under Article 8

Hospital-BedR (on the application of David Tracey, personally and on behalf of the estate of Janet Tracey (deceased)) v Cambridge University Hospital and The Secretary of State for Health with the Resuscitation Council and Others intervening (17 June 2014) [2014] EWCA Civ 822 – read judgment

Philip Havers QC, Jeremy Hyam and Kate Beattie of 1 Crown Office Row represented the appellant in this hearing. They have nothing to do with the writing of this post.

The Court of Appeal has declared that the failure of a hospital to consult a patient in their decision to insert a Do Not Attempt Cardiopulmonary Resuscitation Notice in her notes was unlawful and in breach of her right to have her physical integrity and autonomy protected under Article 8.

The Resuscitation Council, intervening, made the point that in recent years there has been a reduction of inappropriate and unsuccessful attempts at CPR . Their concern was that a judgment requiring consultation with the patient save in exceptional cases would be likely to reverse that process.

Background Facts

The wife of the appellant, Mrs Tracey, had been diagnosed with lung cancer in February 2011 and given nine months to live. Two weeks after this diagnosis she sustained a serious cervical fracture in a major road accident and was placed on a ventilator in a critical condition. When the medical team reviewed her treatment, a first Do Not Attempt Cardiopulmonary Resuscitation Notice was placed in her notes. However, she was subsequently successfully weaned from the ventilator and her condition appeared to improve. A few days later her condition deteriorated again and a second DNACPR notice was completed. Mrs Tracey died on 7 March. Continue reading

Whose Magna Carta is it anyway?

90291Yesterday was Magna Carta Day. It is now only 364 days until the 800th anniversary of the sealing of England’s oldest charter of rights, and one of the world’s most influential legal documents.

There will be much celebration in the coming year, and rightly so. Despite its age, Magna Carta is still partly on our statute books. It represents the first legal constraints imposed on the English king by his subjects. It has influenced every major rights law since – notably, the United States Constitution and the European Convention on Human Rights, both of which are very much still in force.

According to the Magna Carta Trust, there will be eight century beer, festivities, new books, an opera, a calypso tribute and even a new roundabout on the A308 at Runnymede. And if a new roundabout isn’t “English” enough for you, there will of course be lots of dressing up in silly costumes.

But along with celebration, there will be disagreement. It has already started. Continue reading