Cases against the medical profession: an extended review by Marina Wheeler QC

18 June 2021 by

During the pandemic, the public’s gratitude to the medical profession has been palpable. But rightly, practitioners continue to be regulated, supervised by the Courts. Here we report a clutch of decisions highlighting some common themes: the importance of transparency and maintaining public confidence in the profession; managing conflicts of interest; making and handling findings of dishonesty. 

In R (on the application of Young) v General Medical Council [2021] EWHC 534 (Admin), the Administrative Court upheld the decision of a GMC Assistant Registrar (AR) to proceed with charges against the Claimant notwithstanding a previous Assistant Registrar had taken a contrary view. 

The events giving rise to the case were tragic. In October 1996 Claire Roberts, age 9, died at the Royal Belfast Hospital for Sick Children two days after admission. Her death wasn’t referred to the Coroner and the certificate failed to record the diagnosis – hyponatraemia, a condition where sodium in the blood falls dangerously low, leading to cerebral oedema.

In late 2004, a public inquiry was convened following a documentary about the deaths of three other children from hyponatraemia, which prompted Claire’s parents to contact the hospital. The Claimant – Professor of Medicine at Queen’s University, Belfast – was asked to review Claire’s clinical notes and met with Mr and Mrs Roberts in December 2004. A letter to them followed in January 2005 to which he contributed. In May 2006 he gave evidence at the inquest convened to investigate Claire’s death. 


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The Weekly Round-Up: “Freedom Day” delayed

15 June 2021 by

In the News:

The Prime Minister’s recent decision to delay plans to lift coronavirus restrictions by a month has been met with criticism among some legal commentators. The removal of restrictions is now due to take place on 19 July, instead of 21 June. The new deadline was described by the PM as a “terminus date” after which we must “learn to live with Covid”.

In his announcement, the Prime Minister cited the spread of the highly transmissible Delta variant, which now accounts for more than 90% of cases in the UK, and promised to use the extra time to accelerate the vaccination programme. New analysis by Public Health England shows for the first time that two doses are highly effective against hospitalisation from the variant. More than half of UK adults have had their second jab, including 91% of people over 50, and people as young as 18 will be invited to book a jab from the end of the week.

Former Supreme Court Justice Lord Sumption, a prominent critic of the government’s lockdown measures, called the continued lockdown “wicked” and raised the “extreme example” of “Nazi race laws” in arguing that there was no moral obligation to comply with certain laws. In response, barrister Adam Wagner quipped that Lord Sumption’s comments represented “the best case for his own argument that judges should not get involved in politics.”

Elsewhere, however, Wagner acknowledged that the courts have been reluctant to intervene with Covid restrictions, but suggested that at this stage a legal challenge to a refusal to allow a business such as a nightclub to open to double vaccinated customers might be effective. Wagner suggested that “the continued closure of a small number of businesses when the balancing factors have radically changed due to vaccination” might engage Article 1 of protocol 1 of the European Convention on Human Rights, which requires any interference with the ‘peaceful enjoyment of property’ to be proportionate. The delay is predicted to cost UK hospitality £3bn in lost sales and have a “critical impact on struggling businesses.

The announcement was widely anticipated and the public response has been understated. However, it remains to be seen whether the midsummer “terminus date” will truly put lockdowns behind us once we enter the darker, colder months of this pandemic’s second year.


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High Court rejects ‘failure to remove’ abuse claim

14 June 2021 by

In a significant adverse judgment for child abuse claimants, DFX v Coventry City Council [2021] EWHC 1382 (QB), Mrs Justice Lambert rejected a claim brought by a number of claimants who alleged that the defendant council’s social services negligently delayed in instigating care proceedings and that had they been removed from the family home earlier they would have avoided serial abuse at the hands of their parents.

The factual background was that save for a hiatus between June 2001 and February 2002, the defendant’s social services department had been engaged with the claimants’ family throughout the 15 years from 1995 to 2010. Between 1996 and 1999, the first and second claimants were on the child protection register and, between March and September 2002, all of the claimants were on the register. In April 2009, the defendant issued care proceedings in the Coventry County Court. Initially, the removal of the children was sought under an emergency protection order. This was not successful. An interim order was in March 2010 removing all of the children, save for the eldest (a boy, by then aged 17), into foster care. In June 2010, full care orders were made and care plans removing the eight children from the family were approved by the court.

The claimants’ case was that they each suffered abuse, including sexual abuse, and neglect whilst in the care of their parents before their removal from the family in 2010. The claimants alleged that their parents were unfit to be parents and that this should have been obvious to the social workers involved with the family. Between 1992 and 1997, the father was convicted of four offences of indecency towards teenage girls. He had learning difficulties and had limited insight into his offending. The mother also had learning difficulties and it was alleged that she demonstrated repeatedly that she was either unable or disinclined to protect the claimants from their father or from predatory men who visited the home. The risks to the children were increased by the presence in the home of the maternal grandmother who lived with the family until March 2004. She also had learning difficulties and was associated with three “risky adult” men who visited the home. The home was often squalid and the children dirty and unkempt.


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UK’s Bulk interception of communications violated Articles 8 and 10

4 June 2021 by

In its judgment of 25 May 2021 the Grand Chamber of the European Court of Human Rights found that certain aspects of the UK’s regime governing bulk interception of communications were contrary to Articles 8 and 10 of the Convention. 

The case concerned three different interception regimes: bulk interception of communications; the receipt of intercepted material from foreign governments and intelligence agencies; and the obtaining of communications data from communication service providers (“CSPs”). The three applications were introduced by individuals, journalists and human rights organisations following Edward Snowden’s revelations about surveillance programmes operated by the intelligence services of the USA and the UK. 


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Withdrawal of life sustaining treatment v profound religious beliefs in sanctity of life

3 June 2021 by

Manchester University NHS Foundation Trust v Alta Fixsler (By Her Children’s Guardian) (First Respondent) v Mrs Fixsler (Second Respondent) and Mr Fixsler (Third Respondent)

Alta Fixsler was born with catastrophic brain injury. She now two years old, currently a patient at the Royal Manchester Children’s Hospital Paediatric Intensive Care Unit on intensive life sustaining treatment. In this case the court was asked to decide whether it would be in Alta’s best interests for that life-sustaining treatment to be continued. The inevitable consequence of it being discontinued will be the death of Alta.

The parents are Chassidic Practising Jews and Israeli citizens.  They emphasised the fact that being devout members of the Jewish faith meant that their faith was not simply a religion but also a way of life. Within this context, the parents took detailed rabbinical advice as to their religious duties and obligations in the context of Alta’s medical situation. They opposed the application brought by the NHS Trust and instead sought to take Alta to Israel for continued treatment and the exploration of long-term ventilation at home in Israel in due course or, if the court concluded that it is in Alta’s best interests for life sustaining treatment to be withdrawn, for that step to be taken in Israel.

Specifically, the Trust sought the following:

A declaration pursuant to the inherent jurisdiction of the High Court that it is not in the best interests of Alta for life-sustaining medical treatment to be continued, and that is it in her best interests for a palliative care regime to be implemented;

A specific issue order under section 8 of the Children Act 1989 determining that life-sustaining medical treatment should cease to be provided and a palliative care regime implemented instead.


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The Tigray Conflict: Ethiopia’s Humanitarian Disaster — Harry Sanders

3 June 2021 by

Map of the Tigray conflict, which began in November and remains ongoing

This article was written by Harry Sanders, a content writer for the Immigration Advice Service.

Since November 2020, the Tigray region in the north of Ethiopia has been the epicentre of an awful (and hugely underreported) humanitarian disaster. War and violence have sent the region’s inhabitants fleeing over the Ethiopian border in search of asylum, while those who have not escaped are left to suffer increasingly disturbing conditions. Although the conflict was declared ‘over’ very quickly by the Ethiopian central government, abhorrent human rights abuses have continued while humanitarian access has been turned away. To understand how a nation led by a Nobel Laureate has fallen from grace on the world stage so dramatically, it is important to consider the circumstances which led to the outbreak of violence, and furthermore what it may mean for the future of Ethiopia and her people.

Ethiopia has long been a fairly fractious nation in terms of the patchwork of demographics within its borders. The Tigray region (bordering Eritrea to the north) is home not only to a majority of Tigrayan people – who account for 6.1% of Ethiopia’s population – but also myriad other ethnic groups. The majority ethnic group in Ethiopia are the Oromo, comprising 34.4% of the Ethiopian people.

Upon taking office, Ethiopian PM Abiy Ahmed promised to heal Ethiopia’s ethnic divide; all things told, he has been fairly true to his word, and in 2019 he was awarded the Nobel Peace Prize for having brought an end to the 20-year old conflict with Eritrea. However, 2020 proved to be a defining chapter in Abiy Ahmed’s political career; citing social restrictions necessary to curtail the spread of COVID-19, he delayed the Ethiopian General Election from August 2020 to 5th June 2021. These actions were already disagreeable enough to some critics, though Abiy only stoked tensions further by having several of his rivals incarcerated. Most notably among these was Jawar Mohammed, who saw his ‘terror charge’ as a badge of honour and denounced PM Abiy for his blatant targeting of political opponents.


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Latest Law Pod UK episode: Bill Browder on the Magnitsky Act

2 June 2021 by

In Episode 145, Emma-Louise Fenelon speaks to Bill Browder, co-founder of Hermitage Capital, author of best-selling book Red Notice and justice activist. The episode focuses on Sergei Magnitsky, a lawyer who died in pre-trial detention in Russia after uncovering and exposing a tax fraud of $230m and Bill Browder’s campaign to bring those responsible to justice. The campaign culminated with the Magnitsky Act, which was passed by the United States Congress in 2012, and later became the Global Magnitsky Act. Similar legislation has been introduced by Canada, Lithuania, Estonia and the United Kingdom. 

The episode refers to:   

1. The judgment of the ECtHR, Magnistky and Others v Russia 27 August 2019

2. House of Commons briefing paper on Magnitsky legislation

3. Red Notice, available to buy here

Law Pod UK is available on Spotify, Apple PodcastsAudioboomPlayer FM,  ListenNotesPodbeaniHeartRadio PublicDeezer  or wherever you listen to our podcasts. 

Please remember to rate and review us if you like what you hear.

German Courts: more questioning of the legality of Coronavirus restrictions

1 June 2021 by

The first provision of German Basic Law (Grundgesetz)

On 28th of April I wrote up a judgment by Weimar District Court Judge Dettmar against masks and social distancing in schools, and his subsequent handling by the police and District Prosecutor. Judge Dettmar’s decision of the 8th of April was overturned last week and the proceedings were discontinued.

The same court had produced a similar judgment ( 6 OWi 583 Js 200030/21) in a “Corona trial” on the 15th of March 2021 published on the 6th of May 2021. This was a ruling from a judge with a different jurisdiction in the same court. Judge Güricke, unlike Judge Dettmar, is not a family judge. Part of his jurisdiction concerns the validity of subordinate legislation, particularly ordinances banning certain behaviour, on pain of a fine or even a prison sentence. All administrative offences that are not traffic offences fall into this jurisdiction; and the Corona fine cases fall into the Special Administrative Offences division of which Judge Güricke is part. This, his latest judgment, examines in great depth what the government actually knew and should have known about the situation prevailing when the government decided on lockdown in March 2020.

It is well worth reading. Despite the fact that the German media has barely picked up on it, it is being commented upon and read in legal circles.

Judge Güricke’s ruling on the constitutional point is final. The public prosecutor’s office have not been able to appeal because the Thuringian Constitutional Court handed down a ruling on 1 March 2021 that all Thuringian Corona decrees, starting with the first one issued in March 2020 until the beginning of June 2020, were unlawful and null and void due to an error in formalities.


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The Weekly Round-up: Further sanctions for Belarus and the end of the legal road for Hillsborough

1 June 2021 by

In the news:

The arrest of opposition activist Roman Protasevich and his girlfriend, Sofia Sapega in Minsk last Sunday, following the forced grounding of Ryanair flight FR4978 from Athens to Vilnius has captured headlines this week. Mr Protasevich is a former editor of Nexta, an online dissident group with the most popular Telegram messaging channel in Belarus. Nexta produces online content in a similar style to that of Russian activist Alexei Navalny, uncovering corruption in Europe’s last dictatorship.

Although state-run Belarussian TV initially claimed that the plane had requested the diversion to Minsk, a later transcript was shown in which air traffic controllers told the pilot that there was a bomb on board the plane. A Russian-bought MiG fighter jet escorted the plane to Minsk airport, where Mr Protasevich and Miss Sapega were detained. Belarus is the last country in Europe to impose the death penalty, and the inclusion of Mr Protasevich on a KGB list of terrorist suspects (for which the death penalty applies in Belarus) has sparked fears over his sentencing. However, he has so far only been charged with organising mass unrest for his coverage of the 2020 election (widely known to have been rigged). The Committee to Protect Journalists records the murders of six journalists in Belarus since 1994, when Alexander Lukashenko became dictator. Self-exiled opposition leader Sviatlana Tsikhanouskaya, who entered politics herself after the arrest of her journalist husband, has reported that she believes Mr Protasevich (who suffers from heart disease) may currently be in hospital following heart complications.

Estonia’s president, Kersti Kaljulaid, has reiterated her pleas for the UK to take a tougher stance on money entering the country from corrupt regimes, whereafter it is dissipated through the London financial sector. She first requested the UK make needed changes after the attempted murders of Sergei and Yulia Skripal in 2018 by FSB agents. While the government has stated it will take action, there is not yet any evidence of fresh safeguards to prevent money flowing through the UK system. The UK, which already sanctions Belarus, is now preparing to discuss further sanctions in tandem with EU leaders.


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The Weekly Round-up: Criminal justice scandals and ‘prison-like’ hotels for victims of modern slavery

24 May 2021 by

In the news:

Failures of the criminal justice system were once again under the spotlight this week.

On Wednesday, business minister Paul Scully announced a statutory inquiry into the sub-postmaster scandal, following widespread outrage at one of the greatest miscarriages of justice un UK legal history. After the Court of Appeal quashed the convictions of 39 former sub-postmasters last month, hundreds more have been invited to appeal their own convictions for theft and fraudulent accounting, which may have been based on faulty evidence from the Post Office’s ‘Horizon’ digital accounting system. 

The full public inquiry may include an investigation of the role played by Post Office lawyers in possible failures to disclose important evidence discrediting the accuracy of the Horizon system. The Solicitors Regulation Authority had already confirmed last month that it was monitoring the case, after the judgment levelled criticism at a culture among the prosecution counsel of ‘seeking to avoid legal obligations when fulfilment of those obligations would be inconvenient and/or costly.’

The inquiry will be led by Sir Wyn Williams, President of Welsh Tribunals, and is expected to submit its findings in autumn 2022. 

Meanwhile, a stand-off emerged between the Home Secretary and an independent panel set up to investigate the murder of private investigator Daniel Morgan in 1987, for which no one has been convicted.


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Retention of data on alleged rapist lawful despite acquittal in criminal proceedings

21 May 2021 by

YZ, R (on the application of) v Chief Constable of South Wales Police (Rev 1) [2021] EWHC 1060 (30 April 2021)

The claimant YZ had been acquitted on three counts raping his former wife but details concerning these matters remain on the Police National Computer (PNC). These proceedings concerned whether such retention was lawful.

The question at the heart of this application was whether onus was on the competent authority to justify its processing of the claimant’s dat was lawful and fair under the Data Protection Act 2018. The claimant’s argument was that the relevant guidance ( issued pursuant to the 1984 Police and Criminal Evidence Act) to the police was not compatible with this statutory requirement as it put the onus on an applicant for deletion to give reasons for that deletion [para 40].


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Court of Appeal holds modern slavery conclusive grounds decisions are NOT admissible as expert evidence

21 May 2021 by

R v Brecani [2021] EWCA Crim 731 — judgment here

On 19 May 2021 the Court of Appeal was asked to determine whether a Conclusive Grounds Decision made by the Single Competent Authority (“SCA”) that a person is a victim of modern slavery is admissible evidence in a criminal trial.

Respectfully disagreeing with the decision of the Administrative Court in DPP v M [2020] EWHC 3422 (Admin) (discussed on the Blog here), the Lord Chief Justice held that SCA caseworkers are not experts in human trafficking or modern slavery, further noting that their reports do not comply with the expert evidence requirements set out in CrimPR 19. Therefore, a decision by the SCA is not admissible in a criminal trial.


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Law Pod UK: First Episode in Family Law Series from 1 Crown Office Row Brighton

19 May 2021 by

Clare Ciborowska and Richard Ager join Rosalind English in the first of a series of discussions from the family law team at 1 Crown Office Row in Brighton, highlighting developments and analysing case law from the family courts.

In Episode 144 of Law Pod UK, we focus on the challenges presented to family court judges by the obligation to conduct full fact finding hearings where allegations of domestic abuse are raised. The details of this duty are to be found in Practice Direction 12J FPR2010, but the difficulties have yet to be played out in practice. There are problems with the overlap between criminal and family law, with the lack of legal aid for defendants, and, above all, the difficulties faced by judges tasked with the business of trying to run an in inquisitorial hearing whilst being as supportive as possible to litigants in person.

Clare and Richard talk about the various issues arising out of the practice direction and the case law that preceded and followed PDJ12. Here, as promised, are the citations and references touched upon in the podcast:

Practice Direction 12J Child Arrangements and Contact Orders: Domestic Abuse and Harm

The Children Act 1989

H-N and others (Children) (domestic abuse: fact finding) [2021] EWCA Civ 448 (4 conjoined appeals, 30 March 2021) (President of the Family Division)

F v M 15 [2021] EWFC 4 15 January 2021

The Harm Panel Report: Assessing Risk of harm to Children and Parents in Private Law Children Cases

The Domestic Abuse Bill 2020 , now the Domestic Abuse Bill 2021 (yet to be brought into force)

Law Pod UK is available on Spotify, Apple PodcastsAudioboomPlayer FM,  ListenNotesPodbeaniHeartRadio PublicDeezer  or wherever you listen to our podcasts. 

Please remember to rate and review us if you like what you hear.

LGBT rights in Northern Ireland

18 May 2021 by

Belfast Pride
Belfast Pride, 2018 © Love Belfast

Introduction

In Northern Ireland, the Troubles are not the only part of its troubled past and present. In March this year, the Stormont administration found itself mired in controversy over women’s reproductive rights and access to abortion services. In April, a fresh controversy arose: a legislative ban on so-called “gay conversion therapy”. On 18 March 2021, Ulster Unionist Party MLAs Doug Beattie and John Stewart tabled a private member’s motion in the Northern Ireland Assembly calling for a legislative ban on the practice. The motion was debated on 20 April, with one amendment ringfencing religious activities from the proposed ban, taking centre-stage.

To characterise the debate which followed as polarising would be to put it mildly. The Assembly Hansard for 20 April records angry, frustrated exchanges between MLAs who called for safeguarding the LGBTQ community from harmful practices (condemned by the UN Human Rights Council as creating “a significant risk of torture”) and MLAs who called for safeguarding the free exercise of religion.

In the event, the DUP amendment failed and the UUP motion was passed unamended by 59 votes to 24, providing Communities Minister Deirdre Hargey MLA with a strong mandate to bring legislation to ban conversion therapy in Northern Ireland. However, that was not the end of the matter. In the immediate aftermath of the Assembly vote, the DUP signalled its intent to block legislation unless “robust protections for churches” were included. Eight days after the vote, the Northern Ireland First Minister and DUP leader Arlene Foster MLA faced significant rebellion in the party against her leadership and announced her intention to resign both the leadership of the DUP and the First Ministership. The extent to which the motion to ban conversion therapy played a part in the rebellion against Foster remains a matter for debate, especially given concerns about the impact of the DUP’s political stance on the very recently enacted access to abortion and same-sex marriage in Northern Ireland.

Almost a month later, Mr Justice Scoffield in the Northern Ireland High Court handed down judgment in JR111’s application for judicial review [2021] NIQB 48, declaring the language of “disorder” in the Gender Recognition Act 2004 (GRA) to be in breach of the ECHR.

As many around the world celebrated the International Day against Homophobia, Biphobia and Transphobia on 17 May, the events of the past month were a reminder of how different the story of LGBT equality was in Northern Ireland, compared to Great Britain.


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The Weekly Round-Up: The Queen’s Speech and Gendered Violence

18 May 2021 by

In the News:

In the Queen’s Speech last week, the government presented its legislative programme for the next session of parliament, including a number of bills with important human rights implications. The speech was of particular interest because of the extent to which Brexit and COVID-19 have dominated the prime minister’s time in office so far.

Last Tuesday’s to-do list includes an enormous 31 bills, listed in full here and set out in greater detail here. Two bills with key implications are addressed below.


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