Informed consent: Surgeons respond to Montgomery

ec4e596da86038e44828eb708fa82e3dOn 27 October 2016, the Royal College of Surgeons issued some guidance (here) on obtaining consent in the light of the 2015 Supreme Court decision in Montgomery (judgment here, my post here).

The angle of the guidance is obvious, not simply addressed to its member surgeons, but to the NHS to persuade it to allow enough time for surgeons to consent patients properly. And the “steel” in its message was that there would be a significant hike in the bill which would be paid by the NHS for successful claims if consent was not taken properly in future.

Most readers will know the importance of Montgomery. It reversed Sidaway, 30 years before, which said that it was for doctors to decide how much to tell patients about the risks of treatment, and,  if what the patient was told was in line with what other doctors would say (the Bolam principle), no claim would lie. So, per 1980s law, the quality of consent should be determined by medical evidence rather than what the individual patient could reasonably expect to be told.

Montgomery strongly disagreed. Patients have their own autonomy. They differ in their appreciation of surgical risks, and the impact that the occurrence of the risk might have upon their particular lives. The point is well illustrated by an example in the RCS press release. Bypass surgery carries the possibility of loss of sensation in the hand, which may be a minor risk for many patients but very important to, say, a pianist. Why should a clinician be able to advise a patient in the abstract, without knowing whether they have a pianist before them?

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Belfast court dismisses Brexit challenge

eu-1473958_1920McCord, Re Judicial Review [2016] NIQB 85 (28 October 2016) – read judgment

A challenge to the legality of the UK’s departure proceedings from the EU has been rejected by the High Court in Northern Ireland. In a judgment which will be of considerable interest to the government defending a similar challenge in England, Maguire J concluded that the UK government does not require parliamentary approval to trigger Article 50 of the Lisbon treaty. This is, par excellence, an area for the exercise of the government’s treaty making powers under the Royal Prerogative.

See our previous post on Article 50 and a summary of the arguments in the English proceedings.

This ruling was made in response to two separate challenges. One was brought by a group of politicians, including members of the Northern Ireland assembly, the other by Raymond McCord, a civil rights campaigner whose son was murdered by loyalist paramilitaries in 1997. They argued that the 1997 peace deal (“the Good Friday Agreement”) gave Northern Ireland sovereignty over its constitutional future and therefore a veto over leaving the EU. Like the English challengers, they also argued that Article 50 could only be invoked after a vote in Parliament.

At centre stage in the English case is the means by which Article 50 TEU is to be triggered and the question of the displacement of prerogative executive power by statute.  While this issue was also raised in the challenge before the Northern Ireland court, Maguire J also had before him a range of specifically Northern Irish constitutional provisions which were said to have a similar impact on the means of triggering Article 50. To avoid duplication of the central issues which the English court will deal with, this judgment concerned itself with the impact of Northern Ireland constitutional provisions in respect of notice under Article 50.

However, the judge had some clear views on the role of prerogative powers in the Brexit procedure, which, whilst respecting the outcome of the English proceedings, he did not hesitate to set out. Continue reading

Subsidy withdrawal from renewable energy entirely lawful – Court of Appeal

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Infinis Energy Holdings Ltd v HM Treasury and Anor [2016] EWCA Civ 1030 – read judgment

In July 2015 the government announced that it was removing a subsidy for renewable energy. Its decision in fact was to take away the exemption that renewable source electricity enjoyed from a tax known as the climate change levy. We have covered previous episodes in the renewables saga on the UKHRB in various posts.

The appellant, the largest landfill gas operator in the UK and one of the leading onshore wind generators, challenged the government’s removal of the subsidy on the basis of the EU law principles of foreseeability, legal certainty, the protection of legitimate expectations or proportionality. At first instance the judge upheld the Secretary of State’s decision, and the Court of Appeal dismissed the appeal against this finding.

Legal and Factual Background

The subsidy took the form of an exemption for renewable source electricity (RSE) such as that provided by the appellant’s company, from the climate change levy (CCL). (The judgment is replete with these acronyms so it’s worth getting to grips with them before reading.)

Jay J, the judge at first instance, summarised the government’s reasons for removing the exemption. The government wanted to move away from a system of indirect support to one of direct support, the latter being more efficient and cost-effective. The exemption, it was said, benefited foreign generators and there were incentives and support in place that would continue to support domestic generators of renewable energy.  The government had considered the impact of this decision on companies such as Infinis,  but it was decided that it was outweighed by the public interest.  Continue reading

Quantifying Damages for Breach of Privacy

TLT and others v Secretary of State for the Home Department [2016] EWHC 2217 (QB)

How do you quantify damages for data breaches? Is the distress caused by an accidental data breach comparable to phone-hacking? Should damages for distress be equivalent to damages for psychiatric injuries?

In October 2013, the Home Office published statistics on its family returns process, the means by which children with no right to remain in the UK are sent back to their country of origin. In addition to anonymised statistics uploaded onto the government website, the Home Office mistakenly uploaded the spreadsheet of raw data on which those statistics were based. That spreadsheet included personal details such as names and rough geographical locations of applicants for asylum or leave to remain, though not their addresses. The data was online for 13 days before being removed, but a number of IP addresses in the UK and abroad visited the relevant web page.  Those concerned were notified, and brought claims under the Data Protection Act 1998 and the common law tort of misuse of private information.

As far as privacy breaches go, this appears less sinister than having the contents of your private telephone conversations splashed across the front pages. But consider the effect on these individuals at a time when their residence status is uncertain. Taking one example, an Iranian man – referred to as TLT – had applied for leave to remain with his family. They had been told that a member of their family had been detained in Iran and questioned about them. They reasonably believed that the Iranian authorities would have looked at the published details and, as a result, they feared for their lives if they were returned to Iran, their security in the UK and their extended family in Iran. A significant issue is how to quantify ‘distress’ of that nature for the purposes of claims brought.

Judgment

It was not in dispute that the inadvertent publication of the information constituted misuse of private information and a breach of the first, second and seventh principles of the Data Protection Act. Neither was it in dispute that, following the Court of Appeal decision in Vidal-Hall v Google Inc [2015] EWCA Civ 311, a claimant can recover damages for ‘distress’ for such a breach.

But Mitting J’s judgment is interesting for two reasons. First, it tackled four questions which will provide guidance for similar claims in the future. Secondly, and perhaps more controversially, he considered the quantification of damages for individual breaches in this new and developing area of law.

  1. Can individuals who were not named in the data, but who were identifiable as family members, recover?

Simply, yes. Given that the data related to family asylum or leave to remain applications, Mitting J found that anyone with knowledge of the family would be able to identify the children and other family members from the lead applicant.

  1. Is there a level of distress which is below the threshold for the recovery of damages?

Again, and perhaps unsurprisingly, yes: the de minimis threshold which applies in personal injury cases also applies to data breaches.

  1. Should the courts take guidance from the damages awards in the phone-hacking cases – or, as Mitting J referred to them, “cases involving deliberate dissemination for gain by media publishers or individuals engaged in that trade, such as Max Clifford” [16]?

Without going into any detail, this idea was dismissed by Mitting J. The distress described by the claimants was comparable to a psychiatric injury suffered as a result of an actionable wrong.

  1. Can you recover damages for the loss of the right to control private information?

Yes – a claimant can recover for the loss of control of personal and confidential information but there is no separate and additional award. Rather, the judge takes it into account when making an award for distress.

Damages awards and Gulati

Mitting J made awards ranging from £2,500 to £12,500 for each claimant, using psychiatric and psychological damage cases as guideline comparators after carefully assessing the evidence of the applicants and the distress caused by the data breaches. In Gulati v MGN [2015] EWCA Civ 1291 – one of the phone-hacking cases – the Court of Appeal affirmed the principle that damages for non-pecuniary loss for the misuse of private information should have some “reasonable relationship” with damages for personal injury. Arden LJ explained the reason for this [61]:

“if there is no such consideration or relationship, the reasonable observer may doubt the logic of the law or form the view that the law places a higher value on a person’s right to privacy than it does on (say) a person’s lifelong disability as a result of another’s negligence, and this would bring the law into disrepute and diminish public confidence in the impartiality of the legal system.”

However, this rationale also undermines the very basis on which Mitting J made awards. A claimant in a psychiatric personal injury case must demonstrate that they have suffered a recognised psychiatric injury; simple distress is not sufficient. The awards in TLT take into account the loss of control of private information, but are predominantly awards for distress. None of the individuals were shown to have suffered a recognised psychiatric injury as a consequence of the publication of their details, yet their damages awards were made by comparison to those for recognised and diagnosed psychiatric injury.

In seeking consistency, this judgment sits uncomfortably with psychiatric damage cases. Was Arden LJ’s warning prophetic? If Mitting J’s approach is followed in the future, will the reasonable observer form the view that the law places a higher value on a person’s right to privacy than a lifelong disability?

Oliver Sanders and Michael Deacon of One Crown Office Row acted for the Defendants in this case. This blog post was written independently by Gideon Barth.

The subtle hand of human rights – and more Aarhus

1440788_1738fc0eR (o.t.a. Dowley) v. Secretary of State for Communities and Local Government [2016] EWHC 2618 (Admin) Patterson J, 20 October 2016 – read judgment

This challenge was about a landowner not wishing to let those wishing to develop Sizewell C nuclear power station onto her land to carry out surveys and investigations. But it came down to a disagreement about the terms which such entry might occur. For s.53 Planning Act 2008 enables the Secretary of State to allow such entry, subject to conditions, and with the proviso that the landowner may claim compensation for “damage caused to lands or chattels” (s.53(7)) via a claim to the Upper Tribunal.

The entry in question was not insubstantial; the developer wished to have access to some 75 acres of the 420 acres of the claimant’s estate, for surveys relating for possible spoil storage, roads and builders accommodation if the project was to proceed.

The major fall-out was over the issue of the extent of compensation. And this, as we shall see, is where human rights came in, albeit in a topsy-turvy way.

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Mandatory order to stop bribery investigation?

wasR (o.t.a Soma Oil & Gas) v. Director of the Serious Fraud Office [2016] EWHC 2471 (Admin) 12 October 2016 – read judgment

Soma are investing heavily ($40m spent on seismic work) in looking at oil and gas extraction in Somalia, so it was a bit of a set-back, to say the least, when their “capacity-building” efforts – funding infrastructure in the relevant Ministry – were alleged to fall under the Bribery Act 2010, and this led to a fraud investigation by the UK SFO. The investigations, as investigations do, dragged on, and Soma brought these, somewhat ambitious, proceedings to get an order telling the SFO to stop them.

As you may have guessed, the claim failed, though, as we will see, it may have achieved rather different benefits.

The judgment of the Administrative Court is a concise account of when the private challenger can and cannot seek orders in respect of investigations and prosecutions – whether to stop or start them. Here Soma wanted to stop the investigation. In other circumstances, a victim may want the authorities to start an investigation or prosecution into another party: see, e.g. Chaudhry, decided earlier this week.

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A New Book on Parliaments and Human Rights Protection – Judge Robert Spano

9780198734246

 

On the occasion of the publication of the book Parliaments and the European Court of Human Rights by Professors Alice Donald and Philip Leach, Judge Robert Spano of the European Court of Human Rights comments on the general themes presented in the book and its contribution to the ongoing debate on the European Convention on Human Rights and the Principle of Subsidiarity.

A culture of human rights in national parliaments

The effective implementation of human rights requires a culture of human rights at all levels of government as well as in society in general. Therefore, it is a possibly trans­formative development in European human rights law that the role of national parliaments in the realisation of human rights protection within the Convention system has increasingly become a focus-point in recent years, both at the level of policy within the Council of Europe, but as well, and importantly, at the level of adjudication of actual human rights cases in the Strasbourg Court.

This new book provides an excellent overview of this important development, by highlighting the arguments in favour of a more parliamentary-focussed human rights jurisprudence, while at the same time identifying the potential risks to be addressed in future cases.

As a serving judge of the Strasbourg Court, I would like to make a couple of remarks on the core of the normative argument in this regard, as developed by the authors, on the relationship between human rights, democratic governance and legitimate authority.

The first is a doctrinal point, while the second is more practical.

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