The Round-up 16-3-2020

16 March 2020 by Thomas Hayes

The worsening of the Covid-19 pandemic seemed to relegate all other business to a position of relative insignificance this week. Undoubtedly  the human, economic and social cost of the outbreak is already severe, with its impact increasingly felt across the globe. However, perhaps more than any other conceivable event, the progression of the disease casts a spotlight on numerous areas of legal controversy. It is hard to recall a post-war phenomenon which so frequently pits the rights and interests of individuals against those of broader society (more here). Indeed, the potential material for upcoming pupillage interview questions seems virtually inexhaustible, assuming that they too don’t fall victim to social distancing measures.

I will be posting a longer article on Covid-19 later today.

For the time being in the UK, however, it was business as usual in the courts. Returning to the Mental Health Act theme, the week saw judgment in the case of A Healthcare B NHS Trust v CC [2020] EWHC 574 (Fam) (11 March 2020). The case saw care providers seek confirmation from the court that providing dialysis under sedation to a non-compliant patient detained under s 3 MHA 1983 for his psychiatric condition fell within the scope of treatment permitted by the Act. It is noteworthy that the gentleman, when well, appears to give informed consent to his dialysis, but often withdraws such consent when his mental health deteriorates. 

Counsel for the patient submitted that for section 63 to apply, the primary purpose of the treatment must be to treat the mental disorder. This would appear to be reflected in the wording of s 63  and would disqualify his dialysis treatment, which is administered for renal failure, rather than his mental disorder:

The consent of a patient shall not be required for any medical treatment given to him for the mental disorder from which he is suffering, if the treatment is given by or under the direction of the [approved clinician in charge of the treatment].

The judge however rejected this submission, holding that it was sufficient for the proposed treatment to alleviate a manifestation of his mental disorder. As his renal failure was likely contributed to by his poor mental health, it was permissible to administer his dialysis under the provisions of s63. Whilst potentially a common-sense decision on the facts, the interpretation appears significantly to extend  the scope of s63 beyond its natural reading, permitting doctors to administer treatments not just for mental disorders, but also for physical disorders worsened by the effects of any such disorder. 

In other cases this week:

• R (on the application of Christie Elan-Cane) v Secretary of State for the Home Department with Human Rights Watch intervening [2020] EWCA Civ 363 . The Court of Appeal upheld the judgment of the High Court that the requirement for passport applicants to choose a gender did not breach Article 8 of the European Convention on Human Rights. Read more on the decision here.

• The court clarified the time limit for abortions to be performed under s 1 of the Abortion Act 1967 in a judicial review brought by the British Pregnancy Advice Service – British Pregnancy Advisory Service, R (on the application of) v The Secretary of State for Health and Social Care [2020] EWCA Civ 355 (10 March 2020).  A woman will have exceeded her 24^th week of pregnancy once she is 24 weeks + 0 days pregnant, i.e. after midnight on the expiration of 23 weeks + 6 days.

• Uddin v The Secretary of State for the Home Department [2020] EWCA Civ 338 (12 March 2020) – In a judgment with more than a hint of suggestion about how a reconstituted First-tier Tribunal may wish to proceed, the Court of Appeal overturned the previous judgments of the immigration tribunals to uphold the decision of the Home Secretary to refuse leave to remain to a young Bangladeshi man who reportedly was brought to the UK as an orphan aged 13. The case gave rise to issues about how such an individual’s relationships with foster carers should be interpreted in light of Article 8 ECHR. 

On the UK Human Rights Blog:

• David Hart QC considers the case of Vodafone et al v Ofcom [2020] EWCA Civ 183 (19 February 2020) here;

• Shaheen Rahman QC considers the question of whether a person subject to a home curfew under immigration powers had been falsely imprisoned at common law and its interplay with the concept of deprivation of liberty under Article 5 ECHR – read here;

• Rafe Jennings discusses the new Environment Bill 2020 – click here.

On Law Pod UK:

• Emma-Louise Fenelon discusses the ongoing status of EU law in the UK as the country moves towards the end of the Brexit transition period – here

Lastly, in other news:

• Baroness Hale spoke at the launch event for Women in Family Law. The network has been set up to connect, encourage and promote professional women across the field of family law in England and Wales.

• The event “Special Advocates in the Adversarial System: A Panel Discussion” however unfortunately fell victim to the coronavirus outbreak. Originally scheduled for March 31^st, a new date will be announced in due course. 

• Hart Publishers are offering 20% off titles using the code HE6 at checkout. Titles include:

• • Mariagiulia Giuffré: The Readmission of Asylum Seekers under International Law.
  • Nasia Hadjigeorgiou: Protecting Human Rights and Building Peace in Post Violence Societies. 
  • Hedvig Bernitz and Victoria Enkvist: Freedom of Religion
  • Dalia Palombo: Business and Human Rights.

visit www.hartpublishing.co.uk for more.