Matthew Fisher is a doctor and aspiring barrister with an interest and experience in MedTech.
Regardless of whether one attributes this famous quote to Voltaire or Spider-Man, the sentiment is the same. Power and responsibility should be in equilibrium. More power than responsibility leads to decision-making with little concern for the consequences and more responsibility than power leads to excessive caution. This article argues that there is now a disequilibrium in the NHS, which is the root cause for defensive medical practice and the growing NHS litigation bill.
Montgomery v Lanarkshire affirmed a transition from patients as passive receivers of care to active consumers by making the collaborative patient-doctor relationship a legally enforceable right. However, as yet patients are not expected to share responsibility for a negative outcome. Medical paternalism may now be dead but judicial paternalism appears to be alive and well. However, contributory negligence is a necessary counter-weight in this balance and it must urgently be applied to restore equilibrium.
Re AB (Application for reporting restrictions: Inquest)  EWHC 1668 (QB) 27.6.19 (judgment here)
When seeking any order it always helps to make the right application, to the right court, following the right procedure. Although when it does go horribly wrong it at least provides valuable learning for the rest of us.
So make sure you are sitting comfortably, and get ready to be educated by Mr Justice Pepperall dishing out a lesson on making an application for reporting restrictions in respect of an inquest.
MA, BB v Secretary of State for the Home Department (The Equality and Human Rights Commission intervening)  EWHC 1523 — judgment not yet on Bailii but available here.
The High Court has held that an effective Article 3 investigation by the Prisons and Probation Ombudsman (“PPO”) into allegations of serious physical and mental abuse in an Immigration Removal Centre requires the PPO to have powers are to compel witness attendance, hold hearings in public and ensure that the claimants have properly-funded representation to enable them to review and comment on witness evidence and provide lines of enquiry.
Background: The Panorama exposé
MA and BA were detainees at Brook House Immigration Removal Centre (“the IRC”). Prior to their detention, both had served prison sentences. MA’s asylum claim had been refused and BA’s refugee status had been revoked following his sentencing. Both have mental illnesses.
The IRC is operated for the Home Office by the private company G4S, with healthcare services provided by NHS England and G4S Medical Services.
In unanimously allowing an appealagainst a decision to declare the appellant intentionally homeless due to her inability to pay her rent, the Supreme Court affirmed that non-housing benefits are not designed to create a surplus that can be used to account for insufficient housing benefits.
The appellant, Ms Samuels, was an assured shorthold tenant
of a property in Birmingham, where she lived with her four children. Having
fallen into rent arrears she was given notice to leave and subsequently applied
to the respondent council as homeless under Part VII of the Housing Act 1996.
The council instead decided that she was intentionally homeless on the grounds
that her current accommodation was affordable and it was only due to the
appellant’s deliberate decision not to pay the rent that had resulted in her becoming
At the time that Ms Samuels left the property she was entirely dependent on social security benefits which amounted to a total of £1,897.84 per month. This figure comprised: (a) housing benefit (£548.51); (b) income support (£290.33); (c) child tax credit (£819.00); and (d) child benefit (£240.00). Excluding the housing benefit, the total available for living expenses was £1,349.33.
Ms Samuels’ rent was £700, leaving a shortfall of £151.49 when compared to her housing benefit, whilst she calculated her other monthly expenditure to be £1,234.99, comprising: (a) food/household items (£750); (b) electricity (£80); (c) gas (£100); (d) clothes (£50); (e) TV license (£43.33); (f) school meals (£43.33); (g) travel (£108.33); (h) telephone (£20); and (i) daughter’s gymnastics (£40).
Overall, Ms Samuels was left in the unfortunate position of having expenses totalling £1,934.99 with only £1,897.84 worth of social security benefits to cover these expenses.
The Supreme Court has unanimously held that the Defamation Act 2013 altered the common law presumption of general damage in defamation. It is no longer sufficient for the imposition of liability that a statement is inherently injurious or has a “tendency” to injure a claimant’s reputation. Instead, the language of section 1(1) of the Act requires a statement to produce serious harm to reputation before it can be considered defamatory.
The factual background
Mr Bruno Lachaux, a French national working in the United Arab Emirates, had an acrimonious divorce from his British wife, Afsana. In January and February 2014 British newspapers published articles making allegations about Mr Lachaux’s conduct towards Afsana, including that he had been violent and abusive, had hidden their son’s passport to stop her from removing him from the UAE and had falsely accused her of abducting him.
Mr Lachaux brought libel actions against three newspapers in respect of five articles.
The Court of Appeal unanimously ruled that a nurse’s dismissal for improper proselytising was not unfair and that the hospital trust’s decision was not in contravention of the claimant’s rights as guaranteed by Article 9 of the European Convention on Human Rights.
The claimant, a committed Christian, had been employed as a band 5 nurse by the Trust since 2007. Following a medication error, she had been given a final written warning and transferred to work in a pre-operative assessment role. In this role the claimant was required to go through a pre-operative form with the patients. The form required the claimant to make a simple inquiry into the patient’s religious beliefs; importantly “it did not open the door to further religious discussion.” 
In March and April 2016 several complaints were made by
patients about the over-zealous religious preaching of the claimant, with one
patient being told shortly before major bowel surgery that he had a better
chance of survival if he prayed to God.
Following these complaints the matron gave the claimant both oral and written warning that her proselytising was not acceptable. The claimant confirmed that she would not engage in religious discussion unless prompted by the patient.
Two further complaints were made in May and the claimant was
suspended. Whilst suspended a further complaint was made alleging that the
claimant had forced a patient to sing Psalm 23 out loud in what he described as
a “very bizarre” encounter that was “like a Monty Python skit.”
The trust investigated the claims and after a disciplinary hearing the claimant was dismissed for repeated and inappropriate misconduct, including a breach of paragraph 20.7 of the Nursing and Midwifery Council (NMC) code which prohibits nurses from expressing their own personal views in an inappropriate way.
Matthew Fisher is a doctor and aspiring barrister with an interest and experience in MedTech.
Josef. K the protagonist of Kafka’s novel ‘The Trial’ was an ambitious and successful banker prior to his unexpected arrest. The criminal charges brought against him were never explained because they were beyond the comprehension of all but the most senior judges. Attempting to understand his guilt, consumed K’s every thought – he was distracted at work, subservient to his lawyer and ultimately docile when led to his execution. ‘The Trial’ eloquently argued that transparency is a prerequisite of accountability. In the Age of the Algorithm, Kafka’s novel is now more relevant than ever.
Machine learning algorithms increasingly regulate our lives making decisions about us in finance, education, employment and justice. Ultimately, it will become pervasive in most, if not all aspects of decision making in the foreseeable future. But what is a machine learning algorithm? How does it decide? What rights do data subjects have? This article aims to answer all three of these questions.
Codified constitutions are most commonly adopted following a major schism with the previous order. For example, following an armed uprising such as the American War of Independence or the French Revolution. The sweeping away of the old regime, of necessity, demands the creation of new fundamental principles and rules to organise the State. A codified constitution also presents an opportunity to set out the core values on which the nation can rally around. It is commonly asserted that the lack of such a critical break in UK history since the 17th century explains the absence of a codified constitution.
Rose Slowe is an Honorary Research Fellow at University of Bristol Law School, an author on EU law, and a barrister at Foundry Chambers.
Leaving the EU without a deal on 29 March 2019 is not the “legal default”, as has been repeatedly, but wrongly, asserted. It would, in fact, be in violation of the supreme law at both the domestic and supranational level, namely the UK constitution and EU Treaties (or more broadly, the General Principles of Community Law which includes ECJ jurisprudence alongside the Treaties). As such, without an Act of Parliament authorising Brexit in whatever form, the legal default is that the Article 50 notice issued will lapse, if not unilaterally revoked.
The Miller litigation, while lacking in a critical respect, as discussed elsewhere on the Blog, was an essential source of legal certainty in terms of our constitutional requirements and, specifically, the doctrine of parliamentary sovereignty as it pertains to Brexit; judicial clarification at the highest level of legal authority. Of significance, the majority held that the European Communities Act 1972 has rendered EU law a source of domestic law and, now that it has acquired that status, removing it, wholly or in part, is a matter on which Parliament has to legislate.
In February 1993, two-year-old James Bulger was abducted, tortured and then murdered by two 10-year-olds, Jon Venables (JV) and Robert Thompson. As Sir Andrew McFarlane P says in the opening words ofVenables & Anor v News Group Papers Ltd & Ors  EWHC 494 (Fam) (4 March 2019): ‘The family of young James Bulger were and are deserving of the greatest sympathy as the indirect victims of this most horrific crime.’ It was James’s father and his uncle who brought the question of publicity – or not – for JV back to court.
Their application was to vary a ‘confidentiality’ injunction. The application was made on the basis – said the applicants – that JV’s name and image are now freely available should any member of the public undertake an Internet search. Details of his identity, and locations with which he has been connected in the past, have therefore become ‘common knowledge’.
Samuel March is a paralegal and is due to start the Bar Professional Training Course later this year.
R (Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department  EWHC 452 (Admin), Spencer J, 01 March 2019, judgement here
The government’s ‘hostile environment’ policy took a hit in a High Court judgement on Friday. Spencer J declared the “right to rent” scheme, laid out in sections 20-37 of the Immigration Act 2014, incompatible with the European Convention on Human Rights (ECHR). He also declared that a decision by the Secretary of State for the Home Department to roll out the scheme in devolved territories without further evaluation of its efficacy and discriminatory impact would be irrational and would constitute a breach of s. 149 Equality Act 2010.
The case challenged an element of the government’s ‘hostile environment’ immigration policy, which was recently rebranded the “compliant environment” following criticism.
The sections of the Act relevant to this case contained the provisions of the controversial “right to rent” scheme. This required private landlords to check the immigration status of tenants and potential tenants. Knowingly leasing a property to a disqualified person became a criminal offence, punishable by up to 5 years’ imprisonment, an unlimited fine, or both.
This claim was brought by the Joint Council for the Welfare of Immigrants (JCWI) a small charity seeking to ensure that “immigration law and policy are based on sound evidence, promote the rule of law and are underpinned by respect for human rights and human dignity.” They were supported by interventions from Liberty, the Equality and Human Rights Commission and the Residential Landlords Association (RLA).
At the end of January the Investigatory Powers Commissioner published his first annual report for 2017. Its coverage of errors provides some very welcome transparency. But one matter remains opaque and exposes a legislative and policy challenge: when serious mistakes are made, who finds out?
In this post I set out what the IPC report says in this regard, explain the legislative framework, and then identify the challenges and choices for both law and policy. The two points I highlight are:
There is a policy choice underpinning the IPC report about what information to present, and what not to present. It would be helpful and appropriate for the IPC to provide more clarity about how often people were affected by errors but notinformed of it.
There are policy and legislative challenges that remain with regard to whether people will – as it currently seems – neverbe informed that they were affected by a serious error.
Domestic abuse is endemic in UK society. The law’s response has consisted of sporadic police prosecutions, a Protection from Harassment Act 1997 (rarely used), and uncoordinated remedies in family proceedings mostly under Family Law Act 1996 Part 4 (the non-molestation and the occupation order). Each is governed by a different set of procedural rules; and different means of enforcement. Views vary as to what is the legal definition of ‘domestic violence’ – still used by the Legal Aid Agency: see Legal Aid Sentencing and Punishment of Offenders Act 2012 – and ‘domestic abuse’, which is now defined by a family proceedings practice direction which deals only with children proceedings (yes, really): Family Procedure Rules 2010 PD12J.
Probably the only definition in law (as opposed to a Practice Direction) is still that of Lord Scarman in Davis v Johnson UKHL 1,  AC 264 at 276 where of the then Domestic Violence and Matrimonial Proceedings Act 1976 he said:
I conclude that the mischief against which Parliament has legislated by … the Act [there was no definition in the 1976 Act] may be described in these terms: conduct by a family partner which puts at risk the security, or sense of security, of the other partner in the home. Physical violence, or the threat of it, is clearly within the mischief. But there is more to it than that. Homelessness can be as great a threat as physical violence to the security of a woman (or man) and her children….’. I suspect that definition – though it should be – is rarely cited. (Davis v Johnsonremains important: it provides the continuing House of Lords definition of the stare decisisrule.)
The evolution of international human rights law (IHRL) in the UN era has seen a paradigm shift away from a view of international law as applying solely to states and their relations with other states, to a focus on the rights of individuals and the duties states owe to citizens. As articulated in the Universal Declaration of Human Rights, certain rights are so fundamental as to be universal in scope based on our common humanity. As Reisman notes‘no serious scholar still supports the contention that internal human rights are “essentially within the domestic jurisdiction of any state” and hence insulated from international law.’
The question is how these inalienable rights, expressed so forcefully on the international level, can be transposed into domestic law. One way is through the process of judicial interpretation. However, this poses a challenge in dualist systems where, traditionally, courts do not take international law into account, unless implemented by national legislation. This reluctance to engage with unincorporated IHRL is what the 1988 Bangalore Judicial Colloquium—a group including such luminaries as Michael Kirby, Ruth Bader Ginsburg, Anthony Lester and P.N. Bhagwati—sought to address. The resulting Bangalore Principles, concluded that:
It is within the proper nature of the judicial process and well-established judicial functions for national courts to have regard to international obligations which a country undertakes—whether or not they have been incorporated into domestic law—for the purpose of removing ambiguity or uncertainty from national constitutions, legislation or common law.
This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.