Abortion, mental incapacity and prior intentions: Court of Protection Clarifies the law

logoAn NHS Trust v CS (By Her Litigation Friend, the Official Solicitor) ] EWCOP Read the  judgement.

The Court of Protection does the work of Solomon on a daily basis. Matters of life and death are brought before it, and with them come a mass of conflicting rights, overlapping statutes, and an array of case law from which arguments can be drawn. At the end of it, an individual judge must make a stark decision, which may have the most profound impact on another human being. One of those charged with making such decisions once divided the advocates who appeared before him into those who complicate and those who clarify. There is no surprise as to which he preferred.

Baker J’s judgment in this disturbing case will boost the cause of the clarifiers. CS has two children and, before Christmas, became pregnant by her then partner. It was a relationship that, it is alleged, became “characterised by domestic violence” (a phrase that it somehow more chilling for its judicial restraint). CS told friends and families that, in the circumstances, she intended to terminate the pregnancy. Days later she was, allegedly, assaulted by her partner. She was hospitalised with serious head injuries comprising fractures, intracranial bleeding and brain damage. She has post-traumatic amnesia and her behaviour has become extremely unsettled, marked by agitation, restlessness and disruptive acts. Her prognosis is uncertain.

The Trust treating her brought an application to the Court, seeking an urgent order to allow them to perform a surgical abortion. The urgency arose because the window of time during which such a procedure could be performed was closing. With the urgency came a plethora of issues. CS’s condition may improve in the future, but by then it could be too late to terminate the pregnancy. In those circumstances, what weight should be given to the evidence from CS family and friends of her prior intention to have a termination? How should that be balanced against her current wishes, insofar as they can be ascertained? What significance should be attached to the fact that she had previously had a termination? And what, if any, attention should be paid to the views of her partner, now arrested and remanded in custody? Continue reading

Judicial Review: What is meant by “totally without merit”

Samia Wasif and another v Secretary of State for the Home Department [2016] EWCA Civ 82

Read judgment here

What is the difference between a case that is “totally without merit” and one that is “not arguable”? Are either of those more or less hopeless than a case that is “bound to fail”? Continue reading

No article 2 inquest over 14-year-old overdose death, despite failings

Methadone

Kent County Council, R (on the application of) v HM Coroner for the County of Kent (North-West District) & Ors [2012] EWHC 2768 (Admin) – read judgment

The High Court – including the new Chief Coroner – has held that the enhanced investigative duty under Article 2, the right to life, is not engaged in an inquest into the death of a 14 year old boy, despite “many missed opportunities” for intervention by social services being identified.  

Another sad case on when and how the enhanced investigative duty under Article 2 ECHR is engaged. EB, a troubled 14 year old, died of a methadone overdose in November 2009.  He was known to the claimant’s social services department, who were the subject of criticism in a serious case review following his death.  The review found that there had been “many missed opportunities” to intervene, but felt that:  “It cannot be concluded that a different approach … would have prevented [EB]’s death, but there is a possibility that there may have been a different outcome.”  The council have since apologised unreservedly to the family.

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No public inquiry into alleged 1948 massacre by British troops, yet

Communist prisoners held during the Malaya emergency Photograph: Jack Birns/Time & Life Pictures

Chong Nyok Keyu and ors v Secretary of State for Foreign and Commonwealth Affairs and another [2012]  EWHC 2445 (Admin), read judgment

Although the High Court has rejected an attempt to force the Government to hold a public inquiry into an alleged massacre of unarmed civilians by British troops in 1948, the case represents a further example of the use of the Courts to redress historical grievances.

There are two German words for dealing with the traumatic recent past, neither of which has a direct equivalent in English.  This linguistic quirk reflects history and national self-identity.  The defeats of the Kaiser, the Nazis and the GDR Communists led to national introspection in Germany, whereas the United Kingdom, on the winning side in each of the those three struggles, evaded such soul-searching.  The post-war decline was relatively gentle and easy to fit in to the national myth of historical continuity.  An Empire absent-mindedly acquired was considered to be the subject of an orderly and benevolent liquidation, with lasting benefits of railways and the rule of law left to the inheritors.

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From County Court Strike Out to Strasbourg Success

Reynolds v United Kingdom [2012] ECHR 437 – read judgment

What – if anything – can a claimant do when she suspects that the domestic law is not only out of kilter with Strasbourg jurisprudence but is also denying her even an opportunity to bring a claim? Taking arms against a whole legal system may be an heroic ideal, but the mundane reality is a strike out under CPR rule 3.4 by a district judge in the County Court. It is a long way from there to the European Court of Human Rights.

This was the position in which Patricia Reynolds and her daughter Catherine King found themselves following the sad death of (respectively) their son and brother. David Reynolds suffered from schizophrenia. On 16 March 2005 he contacted his NHS Care Co-ordinator and told him that he was hearing voices telling him to kill himself. There were no beds available in the local psychiatric unit, so Mr Reynolds was placed in a Council run intensive support unit. His room was on the sixth floor and at about 10.30 that night Mr Reynolds broke his (non-reinforced) window and fell to his death. Continue reading

Analysis | Rabone and the rights to life of voluntary mental health patients – Part 2/2

This is the second of two blogs on the recent Supreme Court case of Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 . Part 1 is here.

In my previous blog on the Supreme Court’s judgment in Rabone I discussed the central feature of the case, the extension of the operational duty on the state to protect specific individuals from threats to their life, including suicide. Here, I consider the other elements of the case that Melanie Rabone’s parents had to establish in order to succeed in their claim for damages under the Human Rights Act 1998 (“HRA”).

Existence of the operational duty in Melanie’s case

Having established that the operational duty could be applied in Melanie’s case, her parents then had to establish, on the facts, that it was – by showing that there was a “real and immediate” threat to her life from which she should have been protected. Ever since the notion of an operational duty was first enunciated in Osman v United Kingdom (2000) 29 EHRR 245, it has become something of a judicial mantra that the threshold for establishing a “real and immediate” threat was high (see for example Re Officer L [2007] UKHL 36, and Savage v South Essex Partnership NHS Foundation Trust [2009] AC 681 [41] and [66],). There are good reasons for not imposing the operational duty lightly, given the enormous pressures and complexities involved in running police, prison and mental health services for the community as a whole. However, an overly-stringent test risked making the operational duty an obligation that was more hypothetical than real.

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Analysis | Rabone and the rights to life of voluntary mental health patients – Part 1/2

Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 – Read judgment  (On appeal from [2010] EWCA Civ 698  and [2009] EWHC 1827 )

At first sight, Article 2 – the ‘right to life’ – seems to be a prohibition on extra-judicial executions and state-sponsored death squads. It does, of course have a role to play in that respect (and one that is not limited to those countries whose signature of the Convention is viewed with scepticism from Western Europe).

But through a combination of logic, inventive legal argument and what can either be characterised as the incremental development of a new area of law, or the expansionist tendencies of Strasbourg judges, the scope of Article 2 has broadened significantly, and can be cited in cases concerning prison administration and coronial procedural law.

In Rabone, the Supreme Court extended the obligations that the Article places on the state and its servants still further, beyond even the existing decisions from Strasbourg. They held that – in the specific circumstances of this tragic case – an NHS Trust had violated the positive duty that it had, under Article 2, to protect a voluntary patient from the risk of suicide.

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