Monthly News Archives: May 2017


Human rights and the 2017 General Election

31 May 2017 by

There is just over a week to go before the General Election next Thursday. Polls are narrowing, apparently.

If you are still not sure who to vote for, and you want to know how to factor in the parties’ positions on human rights to your decision, here are two things which should help:

Image via RightsInfo

More on junior doctors’ liability: audio.

28 May 2017 by

FB v. Princess Alexandra Hospital NHS Trust [2017] EWCA Civ 334, 12 May 2017, Court of Appeal – read judgment

The UK Human Rights Blog is not only for the reading eye. Here’s an audio version of David Hart’s post on the case of a junior doctor, a sick baby and the question of what we expect of senior house officers on busy Accident and Emergency admissions.

These audio files will soon be searchable in iTunes or wherever you like to find your podcasts for download onto your phone, to listen to on the train, in the gym, on your bike or gardening. We will let you know as soon as they become available.

The Round-Up audio version – who’s on the Rights-side this election?

26 May 2017 by

Here’s an audio version of Poppy Rimington-Pounder’s post this week where she expands on some of the developments and news items she covers in conversation with Rosalind English. We hope soon to have a podcast platform for these news roundups and other interviews with members of 1 Crown Office Row: watch this space.

What can reasonably be expected of junior doctors

22 May 2017 by

FB v. Princess Alexandra Hospital NHS Trust [2017] EWCA Civ 334, 12 May 2017, Court of Appeal – read judgment

All the advocates in this case were from 1 Crown Office Row, Elizabeth-Anne Gumbel QC for the claimant/appellant FB, and John Whitting QC and Alasdair Henderson for the hospital. None of them were involved in the writing of this post.

FB fell ill with meningitis when she was just one. The illness was diagnosed too late, and she suffered brain damage. This appeal was against the judge’s dismissal of the claim against the hospital, where she was seen, some time before she was admitted and the infection treated. All agreed that avoiding the time between being seen and being admitted would have led to the brain damage being avoided. 

But should the junior doctor have picked up enough about her condition to admit her?

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Strasbourg grapples with international surrogacy and the concept of “family”

21 May 2017 by

Paradiso and Campanelli v Italy (Application no. 25358/12), 24 January 2017 – read judgment

The Strasbourg Court ruled earlier this year that the prohibition on commercial surrogacy arrangements did not justify the Italian authorities’ actions in removing a 9 month old child from its non-biological parents and taking him into social care. Although they found no right to family life applied in the circumstances, there was a right to private life which the Italian authorities had breached.

The majority judgment as well as the dissenting and partially concurring opinions summarised below reveal very different approaches to the concept of family life across the Strasbourg bench.
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The UKHRB launches new podcast stream

18 May 2017 by


In a few weeks’ time we hope to have regular podcasts of our roundups and other legal news available from iTunes for subscription or one off downloads. In the meantime here’s a link to my interview with Sarah-Jane Ewart, where we’re talking about the events and cases she has covered in her most recent roundup for the UK Human Rights Blog. I’ve converted this audiofile to MP3 format so it should be easy to download onto any device and does not take up much room. We will let you know as soon as the full UK Human Rights Podcast series is launched for download onto your smartphone or wherever you like listening to audio.

 

 

 

 

Will genetically-informed medicine upend medical confidentiality?

17 May 2017 by

ABC v St George’s Healthcare NHS Trust and Others [2017] EWCA Civ 336 – read judgment

All the advocates in this case are from 1 Crown Office Row. Elizabeth-Anne Gumbel QC, Henry Witcomb QC and Jim Duffy for the Appellant, and Philip Havers QC and Hannah Noyce for the Respondents. None of them were involved in the writing of this post.

In a fascinating twist to the drama of futuristic diagnosis, the Court of Appeal has allowed an argument that doctors treating a Huntington’s patient should have imparted information about his diagnosis to his pregnant daughter to go to trial.

The background to this case is outlined in my earlier post on Nicol J’s ruling in the court below. A patient with an inherited fatal disease asked his doctors not to disclose information to his daughter. The daughter came upon this information accidentally, shortly after the birth of her child, and found, after a genetic test, that she suffered from this condition as well, which has a 50% chance of appearing in the next generation. Had she known this, she would have sought a termination of the pregnancy. She claimed that the doctors were liable to her in damages for the direct effect on her health and welfare.

A claim for “wrongful birth” is well established in law; no claim was made on behalf of the child, who was too young to be tested for the condition. The twist is the duty of secrecy between doctor and patient, which has held very well for the past two centuries. Short of confessions pertaining to homicide or information regarding contagious diseases, the dialogue behind the consulting door should end there.

The problem is that the typical medical relationship only pertains to the pathology of the individual patient. Now that tests are available that make every single one of us a walking diagnosis not only for our own offspring but those of our siblings and their offspring, the one-to-one scenario collapses, along with the limited class of people to whom a doctor owes a duty of care. The pregnant daughter who came across the information about her father’s condition was not the defendant doctor’s patient. In pre-genetic days, that meant there was no duty of care relationship between her father’s doctors and her. But the certainty of hereditability brings her into that circle.
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The Round-Up: Minimum Wage, Article 6 and Housing

16 May 2017 by

IN THE NEWS

Three women, including a mother and her daughter, have been charged with conspiracy and attempt in the first all-female terror plot in the UK. This accolade means it is sure to be feverishly anticipated by the press when the charges reach the Old Bailey on May 19th.

The Children’s Society is looking for evidence on the impact of LASPO (2012) on unaccompanied migrant children, and are calling for the participation of legal practitioners in a survey which can be found here. Evidence would be used in the pending review of LASPO and in a strategic litigation case intended by the Children’s Society to bring unaccompanied migrant children under the auspices of legal aid. For more information contact Dr Helen Connolly at helen.connolly@beds.ac.uk or Richard Crellin, Policy Manager at the Children’s Society at richard.crellin@childrenssociety.org.uk.

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Purdah: Government should obey the law in the run-up to an election

16 May 2017 by

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R (ClientEarth) v Secretary of State for Environment, Food & Rural Affairs, Garnham J, 27 April 2017, judgment here

Last November (here) the judge decided that the UK’s air pollution plans under EU and domestic laws were not good enough.  The case has a long, and unedifying back-story of Government not doing what the law says it should do – see the depressing list of posts at the bottom of this post.

The pollutant was nitrogen dioxide, a product of vehicle exhaust fumes. And as the judge reminded us in this latest instalment, the Department for Transport’s own evidence suggests that 64 people are dying everyday as a result of this pollutant.

The particular issue might seem legally unpromising. Government wanted to delay the publication of its latest consultation proposal from 24 April 2017 (the date ordered by the judge last November) until after the Council elections on 4 May, and, then, once the general election had been called, until after 8 June 2017. It accepted that it had its report drafted, but did not want to release it.

But the only justification for the delay was Purdah.

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Supreme and Strasbourg Courts square off on Art. 6 and housing

10 May 2017 by

Poshteh v Royal Borough of Kensington & Chelsea S [2017] UKSC 36, 10 May 2017 – read judgment 

For the last 15 years, whether the right of the homeless to suitable council accommodation is an Art.6(1) ECHR civil right has been argued over in the courts.  And the question arose again in today’s judgment of the Supreme Court.

Ms Poshteh had been imprisoned and tortured in Iran, and asked her local council in London to house her as she was homeless in the UK. She then rejected the offer of a flat because she said its windows reminded her of those in her Iranian prison cell. This rejection was held fatal to her housing claim, as we shall see.

To understand the Art.6 point, we need to have a quick look at the council’s housing duties for the homeless.

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Coroner’s conundrums: born alive or still-birth, and mother’s anonymity

6 May 2017 by

R (o.t.a T)  v. HM Senior Coroner for West Yorkshire [2017] EWCA 187 (Civ), 28 April 2017 read judgment

A sad story of human frailty posed two difficult problems for the Coroner, and the Court of Appeal.

A 19-year old mother went into hospital, with a shoebox. In the shoebox was the 6-days dead body of her daughter. She told the hospital and the police that she had been raped, hence the shame about reporting the death. She had given birth in her bedroom at home, and she said that the baby had been cold when born.
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Convention Rights page updated

6 May 2017 by

We have finished an overhaul of the Convention rights pages to reflect recent political and legal developments since they were last reviewed. The most important of these is the vote to leave the European Union and what implications this might have for the UK’s obligations under the European Charter of Fundamental Rights and Freedoms. For the moment I have left in place the editorial material matching each of the Charter rights with the Convention rights but the Charter and the role of the ECJ in UK legal affairs may be one of the first features of the post-Brexit landscape to change (see Marina Wheeler’s post on how that court might have overstepped the mark with the Charter, and David Hart’s discussion on the topic of ECJ muscle-flexing here, here and here).

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The right to put your past behind you: Court of Appeal Art.8 ruling

4 May 2017 by

R (o.t.a P & others) v. Secretary of State for Home Department & others [2017] EWCA Civ 321, Court of Appeal, 3 May 2017 – read judgment 

The Court of Appeal has upheld challenges to the system of the police retaining information about past misconduct. It held that the system, even after a re-boot in 2013 in response to an earlier successful challenge, remains non-compliant with Article 8

The  problem is well summarised by Leveson P in the first paragraph of the judgment, namely the interface between a system of rehabilitation of offenders and the minimisation of risk to the public caused by the employment of those with misconduct in their pasts.

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