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The High Court has ruled that the health authorities owed a duty of care to the daughter of their patient who suffered from the hereditary neurodegenerative order Huntington’s Chorea, to inform her about his condition. But in the circumstances, Yip J concluded that the duty was not breached and that causation had not been established.
The facts of this case are set out in our previous post about the interlocutory proceedings before Nicol J. It will be recalled that the father had killed the claimant’s mother and was detained in a psychiatric hospital at the time of these events.
The outcome of the hearing on the merits has been awaited with anticipation because the finding of an obligation on a doctor to inform a third party may undermine the doctor-patient confidentiality rule, and this in turn would have a significant impact on the health services, particularly as genetic medicine increases the number of diagnoses that affect not just the individual patients but their relatives as well.
The issues before the Court
Now that the full trial of the merits of this case has been held, we have a more nuanced picture of the legal duties and defences. For a start, there were a number of defendants, not just the father’s clinician, but the medical team that made up the family therapy group that treated both claimant and her father. Furthermore evidence has come to light about the claimant’s attitude to the dilemma that she faced which has had implications for the decision on causation.
But first, let’s look at the issues that Yip J had to determine in this important case involving the implications for medical confidentiality in the context of hereditary disease.
i) Did the defendants (or any of them) owe a relevant duty of care to the claimant?
ii) If so, what was the nature and scope of that duty?
iii) Did any duty that existed, require that the claimant be given sufficient information for her to be aware of the genetic risk at a stage that would have allowed for her to undergo genetic testing and termination of her pregnancy?
iv) If a duty of care was owed, did the defendants (or any of them) breach that duty by failing to give her information about the risk that she might have a genetic condition while it was open to her to opt to terminate her pregnancy?
v) If there was a breach of duty, did it cause the continuation of the claimant’s pregnancy when it would otherwise have been terminated? (This involves consideration of whether the claimant would in fact have had the opportunity to undergo genetic testing and a termination in time but for the breach, and whether she would have chosen to do so.)
Airport expansion has taken a long and winding road, not least at Heathrow. But the proponents of the 3rd runway at Heathrow would have been heartened by the Secretary of State’s decision in June 2018 to set out a policy which preferred Heathrow over Gatwick and which was designed to steer planning processes thereafter in support of the new runway.
It is this decision which has just been declared unlawful by the Court of Appeal.
I am afraid this is where the planning jargon starts and the acronyms proliferate. The challenged decision was an Airports National Policy Statement (ANPS). Under planning legislation, an ANPS “sets the fundamental framework within which further decisions will be taken,” as the CA put it in [275]. Those further decisions include the grant of permission for the particular project, done through the Development Consent Order (DCO) process. But you cannot challenge that fundamental framework later in the DCO process; you cannot say later, for instance, that expansion is not necessary at all, or there is a better alternative, say, Gatwick, if the ANPS has decided otherwise.
Caroline Flack appearing at Highbury Corner Magistrates’ Court
The intersection between technology and human rights is growing exponentially. In places, the growth is immensely productive. The internet has become integral to how we communicate in moments of historic crisis and transformation. Social networks have played a complex and contradictory role in pivotal episodes from the Arab Spring to #MeToo. For more than three billion people, the internet directly facilitates access to news and information, religion and politics, markets and trade, and even justice. In this country, half the population gets their news from social media. In 2016, a report from the Human Rights Council of the United Nations General Assembly declared access to the internet to be a basic human right. This blog post is itself both byproduct and contributor to the phenomenon.
Can the police indefinitely retain an individual’s DNA profile, fingerprints and photograph after they have been convicted?
That was the question before the European Court of Human Rights (ECtHR) in Gaughran v UK (no. 45245/15, ECHR 2020). This judgment — which was given for the applicant — is of interest both on the merits and as an example of the way the Court continues to approach issues of this kind.
Earlier this month, the Scottish Parliament’s Justice Sub-Committee on Policing published a report which concluded that live facial recognition technology is currently “not fit” for use by Police Scotland.
Police Scotland had initially planned to introduce live facial recognition technology (“the technology”) in 2026. However, this has now been called into question as a result of the report’s findings – that the technology is extremely inaccurate, discriminatory, and ineffective. Not only that, but it also noted that the technology would be a “radical departure” from Police Scotland’s fundamental principle of policing by consent.
In light of the above, the Sub-Committee concluded that there would be “no justifiable basis” for Police Scotland to invest in the technology.
Police Scotland agreed – at least for the time being – and confirmed in the report that they will not introduce the technology at this time. Instead, they will engage in a wider debate with various stakeholders to ensure that the necessary safeguards are in place before introducing it. The Sub-Committee believed that such a debate was essential in order to assess the necessity and accuracy of the technology, as well as the potential impact it could have on people and communities.
The report is undoubtedly significant as it reaffirms that the current state of the technology is ineffective. It therefore strengthens the argument that we should have a much wider debate about the technology before we ever introduce it onto our streets. This is important not only on a practical level but also from a human rights perspective, especially set against the backdrop of the technology’s controversial use elsewhere.
According to Jewish religious law, if a husband refuses to grant his wife a divorce (a “get”) she has no recourse to the Jewish authorities for a certificate and must either be content with a civil divorce, or remain a “chained woman” or “argunot”. One of the consequences of this system is that any child she may have by a subsequent relationship is considered a “manner”, or illegitimate.
For the first time in legal history Anthony Metzer QC of Goldsmith’s Chambers has used the secular criminal law to persuade a recalcitrant husband to grant his client a “get”, the threat of a prosecution for the offence of coercive and controlling behaviour leading to a maximum prison sentence of five years. This is a fascinating breakthrough and has implications not only for other “chained women” in Jewish communities but in the wider world of religious traditions where women are often the victim of unfair religious laws.
Rosalind English discusses the implications of this case with Mr Metzer QC in this week’s episode (No. 103) of Law Pod UK. You may want to refresh your memories on the use of the offence of criminal and coercive behaviour in proceedings in the family courts by listening to Rosalind’s interview with Clare Ciborowska of 1 Crown Office Row in Episode 43.
The following article comes from a student of IP law at Georgetown University in Washington DC. Although somewhat outside the range of subjects usually covered by UKHRB I feel it is sufficiently important to keep up to date with this difficult and fast moving area, as law tries to keep pace with technological developments in this field. So here we have John Butcher’s survey of the field.
Inventors come from many different disciplines and fields of study. Arguably one of the most important are biotechnicians whose inventions dramatically help to improve our standards of living. From healing the body of diseases to restoring the environment, biotechnology pervades all aspects of life.
While that sounds really nice, you might be wondering what exactly falls under biotechnology?
What is Biotechnology?
Biotechnology in the United Kingdom is the industry of organisms that manufacture commercial products. Interestingly, it can be quite controversial at times i.e. stem cells and gene cloning. Despite this, biotechnology is integral to advancements in the healthcare and pharmaceutical industry.
Currently, most industrial biotechnological expenditure in the UK is in the field of healthcare. Consequently, the UK is the leader in Europe in the development of biopharmaceuticals – by quite a lead.
But it would be too narrow to characterise the case as being about trans rights only. At its core, it concerns the role of the police in responding to reports of hate incidents which do not amount to criminal behaviour. As such, the findings of Julian Knowles J have implications that extend beyond trans rights, impacting on how police should respond to reports of racism, antisemitism, Islamophobia, and other forms of discrimination that fall short of criminality. Clearly, the case raises extremely important questions. The Claimant already has permission to appeal to the Court of Appeal and a leapfrog certificate, allowing him to go directly to the Supreme Court to ask for permission to appeal there.
Tonight, in the Old Hall, Lincoln’s Inn, Judge Robert Spano will deliver the inaugural Bonavero Institute Human Rights Lecture entitled “The Democratic Virtues of Human Rights Law” in which he responds to Lord Sumption’s Reith Lectures on the BBC last year. Jonathon Sumption will be there himself to respond to Robert Spano’s observations. The event, which is moderated by Helen Mountfield QC, principal of Mansfield College, Oxford, will be recorded and filmed, and the director of the Bonavero Institute Catherine O’Regan (whom I interviewed in Episode 97 on Law Pod UK has kindly given permission for the audio recording to be republished on Law Pod UK in due course.
So, here is Robert Spano in his own words.
At the outset let me say this, I bring an external perspective, I will not be commenting on domestic political issues or developments in the British legal system. For that I am not equipped. Rather, I will begin by focussing in general on Lord Sumption’s views on the expanding role of law at the expense of politics before engaging with his third lecture, entitled ‘Human Rights and Wrongs’, and his criticism of the European Court of Human Rights. I proceed in this manner as it is difficult to disentangle the third lecture from Lord Sumption’s overall thesis. The five lectures must in other words fairly be read as a whole. When referring to his lectures, I will use the language Lord Sumption deploys in his published volume entitled Trials of the State – Law and the Decline of Politics (Profile Books, London (2019). In my intervention, I offer my personal views which should not be ascribed to the Court on which I serve.
If your domestic mutt makes friends with a wolf, and is prepared to eat and play with this visitor from the wild in your garden, does that deprive said wolf of the protection of the EU rules on the protection of listed species? AG Kokott at the European Court of Justice has just handed down her opinion on this tricky question of conservation referred to the Court.
Background law
The Habitats Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora calls for the introduction of a system of strict protection for species, such as the wolf (Canis lupus), which are listed in Annex IV(a) thereto. However, must that system of protection also be applied in the case where a wolf plays with dogs in a village? That is the question that has been put to the Court in these proceedings. As the AG continues
Even in its specific form, that question may be of greater practical importance than one might think. The answer to it will be decisive above all, however, in determining whether the substantively extensive protection of species provided for in the Habitats Directive is primarily relevant to natural and semi-natural areas, that is to say, in particular, to activities such as agriculture, forestry and hunting, or whether it is to be taken into account without restriction in all human activities, such as the operation of roads.
You only have to think about this for a few seconds before realising the far reaching implications of the latter interpretation.
The European Court of Human Rights continues to make it clear that a failure by member states to protect people from domestic violence is likely to cross the high hurdle of the prohibition on degrading and inhumane treatment under Article 3.” It isn’t all about women. In the latest decision, Affaire Buturuga v Romania (App No. 56867/15), (available only in French) the Court found a breach of articles 3 and 8 in respect of a failure to investigate adequately and/or take action on complaints of domestic violence and awarded €10,000 general damages.
Demonstrators protest government deportation flights outside Downing Street. Credit: The Guardian.
The last week provided no shortage of legal controversy, and posed the author of this blog considerable difficulty when trying to identify which developments deserved the most prominence. In analysing this avalanche of legal news, however, certain key themes started to develop.
In two related judgments, Lieven J considered an application made by a Hospital Trust to withdraw treatment from a child receiving mechanical ventilation to keep him alive and an application for anonymity on behalf of his treating clinicians. The Trust succeeded in both.The decision has been upheld by the Court of Appeal.
The application to withdraw treatment was opposed by the parents. As always in such cases the circumstances were tragic and emotions ran high, which provides some context to the anonymity application.
The Court of Appeal has just dismissed the actions in nuisance by residents of flats adjacent to the the Tate Modern art gallery on the south bank of the River Thames in central London. (Disclaimer: the author of this post has just moved into an apartment in the area but has no association with the flats or the residents central to this appeal.)
At the outset of this judgment, the Court observed that
the case, and this appeal, raise important issues about the application of the common law cause of action for private nuisance to overlooking from one property to another and the consequent invasion of privacy of those occupying the overlooked property.
The following discussion quotes from the Court’s own press report. References to paragraph numbers are in bold.
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