The patient in these proceedings was a woman in her thirties (“B”). She suffers a learning disability and epilepsy and has considerable social care needs. She currently lives at home where she spends much of her time watching television. She struggles to manage her personal care and hygiene, and, in the judge’s words, she is “grossly overweight.”
She is prone to confrontational behaviour when challenged, and can be physically aggressive. She is assessed as requiring support to maintain her safety when communicating with others; when she receives information which she does not want to hear, she often becomes dismissive, verbally aggressive and refuses to engage.
This hearing concerned her capacity to litigate in these proceedings, to manage her property, to decide where she resides and her package of care, and to decide with whom she has contact. The main focus of the judgment was on the question that arose in the “A” case , as to the capacity of the patient to use the internet and communicate by social media. Closely related to this was the issue of her capacity to consent to sexual relations. Continue reading →
In this case Cobb J was asked to make declarations under the Mental Capacity Act 2005 regarding a learning disabled man’s capacity to use the internet and social media. (NB on 21 February judgment was also handed down in a similar case on which we will post shortly: B (Capacity: Social Media: Care and Contact)  EWCOP 3.
The rapid development of the internet and proliferation of social media networks over recent years have fundamentally reshaped the way we engage with each other. We spend more time on our digital electronic devices than we do interacting with other humans and naturally this has brought huge benefits in terms of entertainment, communication and gathering information. The social media ‘apps’ available for instant messaging and networking are mostly easy and free to use, amongst them chiefly Facebook, WhatsApp, Snapchat, Facetime, Skype, Instagram, and Twitter. For people with disabilities the internet and associated social media networks are particularly important:
On 20 March Dignity in Dying released a report exposing the fact that those behind the legal challenge to the RCP (detailed below) have a long history of campaigning for pro-life causes and connections to American pro-life lobbyists, the Alliance Defending Freedom (ADF).
In January we published episode 63 of Law Pod UK featuring Sarah Wootton, Chief Executive of Dignity in Dying. DID campaigns for a change in the law to allow doctors to prescribe lethal drugs for terminally ill people to hasten their own death in specific situations. Sarah referred in that interview to a poll that was about to be conducted of the members of the Royal College of Physicians, who have hitherto opposed assisted dying. The members are being asked whether they individually support a legal change to permit assisted dying, and what they think the RCP’s position should be. The RCP has said that it will move to a neutral position unless at least 60% of votes in a poll being sent out in the first week of February are either in favour of or opposed to a change in the law. The results will be announced in March but the poll has had a bumpy ride, including a threat of judicial review by one of its members for conducting the exercise as a “sham poll with a rigged outcome.” The Christian charity Duty of Care has called for signatures from doctors and medical students to a petition objecting to the poll.
While that has been going on, DID has supported the family of a man suffering from motor neurone disease. On 7 February Geoff Whaley travelled to Dignitas in Switzerland to end his life.
Before he died, Mr Whaley wrote an open letter all MPs to impress upon them the need for a change in the law after his wife was reported to the police, in an anonymous phone call, as a person potentially assisting someone to end their life. The Whaley’s MP Cheryl Gillan raised the family’s story in the Commons during Business of the House.
Geoff [and his wife] had to suffer the added mental anguish of facing a criminal investigation at a time when the family, and most of all Geoff, wanted to prepare his goodbyes and fulfil his last wish in peace. May I ask the Leader of the House if we can have a debate in Government time so that we can re-examine this area of law, particularly in the light of this amazing man’s efforts to give terminally ill people a choice over the way they leave this world, and to afford protection to their loved ones?
The claimant, Mrs Ninian, is the sole beneficiary of the residue of the estate of her late husband Mr Ninian under his will. Mr Ninian, who suffered from a progressive incurable disease, died on 16 November 2017 with the assistance of Dignitas in Switzerland. Mrs Ninian was with him throughout the trip to Switzerland, his assessment by representatives of Dignitas and the occasion of his suicide.
Shortly before the trip to Dignitas, Mrs Ninian applied for relief against forfeiture under section 2 of the Forfeiture Act 1982 on the basis that steps taken by her may have amounted to encouraging or assisting her husband to commit suicide which brought in play the forfeiture rule.
This case concerned a man, KG, who suffered from the human prion disease CJD. As was explained in the judgment, prion diseases are invariably fatal, neurodegenerative conditions.
They are involve the build-up in the brain and some other organs of a rogue form of a naturally-occurring protein known as the prion protein. The rogue protein results from a change in shape of the normal prion protein. Once formed in the body, these rogue proteins (or prions) recruit and convert more of the normal prion protein into the abnormal form, setting off a kind of chain reaction which leads to a progressive accumulation of the rogue protein.
This week has been dominated by Shamima Begum. On Tuesday last week, Home Secretary Sajid Javid issued an order depriving Ms Begum of citizenship under s.40(2) of the British Nationality Act 1981. The act authorises the Secretary of State to deprive a person of citizenship where this is “conducive to the public good” – but s.40(4) states that the order must not make the person stateless.
The Home Office claimed compliance with s.40(4) on the basis that Ms Begum could claim citizenship from Bangladesh, in light of her Bangladeshi heritage, until the age of 21. However, on Wednesday, the Bangladesh Ministry of Foreign Affairs released a statement that Ms Begum was not a Bangladeshi citizen, and that there was ‘no question’ of her being allowed into the country. Ms Begum herself told the BBC, “I wasn’t born in Bangladesh, I’ve never seen Bangladesh and I don’t even speak Bengali properly, so how can they claim I have Bangladeshi citizenship?”
From the popular four part episodes out of 1 Crown Office Row’s seminar ‘Erasure, Remediation and Rights of Appeal in Disciplinary Proceedings’, we bring you Episode 67 with Matthew Barnes, who asks the question in his talk about remediation – Can you teach an old dog new tricks?
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As a matter of policy, the UK government is committed to improving the welfare of all animals, or so we are given to understand. In this little-covered ruling, we see that the responsible authorities are trying to do what they can to alleviate the suffering of farm animals enduring transport for slaughter:
[The government] would prefer to see animals slaughtered as near as possible to their point of production and thus trade in meat is preferable to a trade based on the transport of live animals. Whilst it recognises the United Kingdom’s responsibilities whilst remaining a member of the EU, it will be looking to take early steps to control the export of live animals for slaughter as the UK moves towards a new relationship with Europe.
Livestock transport has been a controversial subject in the UK for many years. Efforts by public authorities to reduce or mitigate the movement or export of live animals have hitherto foundered on the rocks of free movement of goods (see my post on TFEU Article 35). Despite the ethical controversy, the current position is that long distance transport of nonhuman animals for slaughter is lawful (Barco de Vapor BV v Thanet District Council Bus LR 593.)
Renu Begum holds a photograph of her sister Shamima, taken prior to the then school girls travel to Syria to support the Islamic State. Credit: The Guardian
Immigration cases have dominated human rights case law this week. However, perhaps the greatest controversy concerned the Home Secretary’s intervention in the case of Shamima Begum. News broke on Sunday morning that the nineteen-year-old had given birth in Syria to baby boy, having travelled to the country to support ISIS as a school girl three years ago.
The Times newspaper’s report earlier in the week that Miss Begum wished to come back to the UK prompted Sajid Javid to tell the same paper that he “would not hesitate to prevent” her return. International law may be an obstacle; Article 8 of the UN Convention on the Reduction of Statelessness 1961, to which the UK is a signatory, prevents a government from depriving an individual of their nationality if it would render them stateless.
However, UK law does permit the removal of citizenship under certain conditions. Section 66 of the Immigration Act 2014 allows the removal of citizenship where that status results from naturalisation, the Secretary of State is satisfied that deprivation is conducive to the public good and there are reasonable grounds for believing the person is able to become a national of another country or territory. The Supreme Court has been happy to allow an individual to become de facto stateless, but not de jure stateless – Pham v Secretary of State for the Home Department  UKSC 19 (25 March 2015).
The key difference in Miss Begum’s case is that she appears to lack citizenship of another country. In R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2)  UKHL 61;  AC 453 (Paragraph 70), Lord Bingham cited Sir William Holdsworth’s ‘A History of English Law (1938’), vol X, p 393:
The Crown has never had a prerogative power to prevent its subjects from entering the kingdom, or to expel them from it
Similarly, Laws LJ, at paragraph 39 of the judgement in Bancoult (No 1), stated:
For my part I would certainly accept that a British subject enjoys a constitutional right to reside in or return to that part of the Queen’s dominions of which he is a citizen.
Mr Javid may well find that preventing Miss Begum’s return is more difficult than giving a hard-line soundbite to The Times. It is not difficult to imagine a whole array of different grounds on which to challenge such a decision, including her age at the time she left the United Kingdom, positive secondary duties owed under Human Rights law and obligations owed to her child, who appears to automatically inherit British citizenship through his mother.
In other news…
1 Crown Office Row’s Sarabjit Singh QC represented the government in a judicial review of circumstances surrounding an application for indefinite leave to remain. The review was brought by a Somali asylum seeker who had been subject to deportation orders after his conviction for wounding with intent – Guled, R (On the Application Of) v The Secretary of State for the Home Department  EWCA Civ 92. G. sought an order compelling the Home Secretary to grant him indefinite leave to remain, his deportation proceedings having extended over 12 years during which time he was diagnosed with schizophrenia. He alleged there was no realistic prospect of effecting his safe removal to Somalia under such circumstances. Ultimately, the Court of Appeal instructed the Home Office to reconsider his application, however it stopped short of granting a mandatory order compelling the Home Secretary to grant indefinite leave to remain.
Bhandari & Anor v Secretary of State for the Home Department  EWCA Civ 129 – The appeal of a Nepali woman against the decision to refuse her application for leave to remain as a Tier 4 migrant was rejected by the Court of Appeal. She had paid £9500 to a fraudulent third party in order to secure a ‘Confirmation of Acceptance for Studies’ document after she made what she thought was a valid application to study at King’s College London. Whilst sympathetic to her circumstances, the court found itself unable to support her appeal.
SB (Sri Lanka) v The Secretary of State for the Home Department  EWCA Civ 160 The appellant had put forward evidence suggesting his life would be endangered were he returned to Sri Lanka due to purported activities he had undertaken in support of Tamil fighters in the country’s civil war. All his evidence had been dismissed as lacking credibility by both previous tribunals. The Court of Appeal remitted the case back to the First tier Tribunal to go before a different judge.
Conor Monighan brings us the latest updates in human rights law
Credit: the Guardian
In the News:
The Joint Committee on Human Rights (JCHR) has concluded that indefinite detention in immigrations centres must cease. The Committee published a critical report into the issue, which found indefinite detention has a highly detrimental impact upon detainees’ mental health.
The Committee argued that individuals should be held for no more than 28 days. It said this would provide an incentive to the Home Office to speed up case management, thereby reducing costs. Harriet Harman MP, the JCHR’s Chairwoman, noted in an article that the Home Office has paid £20 million over five years to compensate for wrongful detentions. Continue reading →
The Lord Chancellor and Secretary of State for Justice, David Gauke, has published his report into the Review of Legal Aid for Inquests. This follows numerous campaigns and calls for more extensive funding for bereaved families at inquests, particularly those where the state is represented.
short, the news is not good for those campaigners:
Having considered the impact of additional representatives on bereaved families, the financial considerations, and the impact of a possible expansion on the wider legal aid scheme, we have decided that we will not be introducing non-means tested legal aid for inquests where the state has represented [sic]. However, going forward, we will be looking into further options for the funding of legal support at inquests where the state has state-funded representation. To do this we will work closely with other Government Departments.
Another search, it seems, for ‘alternative arrangements’.
Esegbona v Kings College Hospital  EWHC 77 (QB)
Twenty years on from Bournewood, the case that prompted the introduction of DoLS, and as the Mental Capacity Amendment Bill tolls the death knell for DoLS and introduces as their replacement Liberty Protection Safeguards, the High Court (HHJ Coe QC sitting as a High Court Judge) has given a sharp reminder of the human and financial cost of what happens when a hospital fails properly to discharge its obligations under the Mental Capacity Act and as a result, falsely imprisons (in a hospital) a patient.
Following our popular interview with James Badenoch QC on the “doctor knows best” rule of evidence in medical negligence cases, we bring you John Whitting QC, healthcare law specialist at 1 Crown Office Row (@JohnWhittingQC). In Episode 64 of Law Pod UK, John talks to Rosalind English about the realities of clinical encounters and considers to what extent patients are willing, or in some circumstances even able – to take on board multiple options for their treatment.
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