These are the words that Hayden J, Vice President of the Court of Protection, used to describe AH, the applicant in this case. The Official Solicitor identified it as “the most troubling and tragic of cases of this kind” with which she has been involved.
This case is the most recent and cogent in the consideration of best interests under the Mental Capacity Act in terms of continuing life-saving treatment. The “best interests” test is laid out in Aintree University Hospital NHS Trust v James  UKSC 67.
AH’s family was originally from Pakistan. She and her family moved to Uganda but they were expelled, as South Asian residents, under the Idi Amin regime, in the early 1970’s. AH’s medical history showed signs of non-specific arthralgia, raised calcium levels and Type 2 diabetes. She had been diagnosed with carpal tunnel syndrome. She did not smoke, nor did she drink alcohol.
In early January 2020 she suffered a high fever which her doctors identified symptomatic and not causative of the cytokine/autoimmune ‘storm’ which created the “devastating” neurological damage and the pathological processes she has suffered from since. Both her treating doctors had seen similar cytokine ‘storms’ in patients critically ill with Covid-19 although neither has seen damage as extensive as that sustained by the applicant. All agreed that it was in consequence of this ‘storm’ that there had been such “extensive damage” to the nerves and to the muscle as well as to the brain.
I have posted on the extraordinary goings-on in Thuringen, Germany where two Weimar judges, one family and one administrative, have been subject to searches by the public prosecutor’s office following their respective rulings containing comments critical of the various lockdown and testing measures during the C-19 pandemic. You can find my posts here, here and here.
So it’s something of an irony that, whilst a leading member state of the European Union is going after its judges for rulings of which it disapproves, the European Commission lodges an application for interim measures under Article 279 TFEU and Article 160(2) of the Rules of Procedure, requesting that the European Court of Justice order the Republic of Poland to suspend various Polish laws concerning disciplinary cases against judges. As the ECJ said, when considering the request,
The European Union is composed of States which have freely and voluntarily committed themselves to the common values referred to in Article 2 TEU, which respect those values and which undertake to promote them. In particular, it follows from Article 2 TEU that the European Union is founded on values, such as the rule of law, which are common to the Member States in a society in which, inter alia, justice prevails.
Fine words, indeed. But the aspiration needs some enforcement. On the 15th of July the European Court of Justice (ECJ) ruled that the moves by the Polish government to institute a “Disciplinary Chamber of the Supreme Court” interfered with the guarantees of impartiality and independence of the judiciary, as well as the protection of the judiciary from executive disciplinary action, was in breach of EU law (Case C‑791/19, action for failure to fulfil obligations under Article 258 TFEU).
The Federal Court of Justice in Germany (the Bundesgerichtshof, or BGH) has ruled against the social network provider that deleted posts and suspended accounts amid allegations of “hate speech”.
The ruling was handed down on the 29th of July (Bundesgerichtshof, Urteile vom 29. Juli 2021 – III ZR 179/20 und III ZR 192/20) and at the time of writing this post, the full judgment had not been published. The following summary is based upon the Bundesgerichtshof’s press release. NB the quotes from the plaintiff’s Facebook entries are in the judgment, i.e. the public domain, in other words no offence is intended by repeating them here.
Judgments of July 29, 2021 – III ZR 179/20 and III ZR 192/20
The III Civil Senate of the German Federal Court of Justice has ruled that Facebook’s terms and conditions of April 19, 2018 for the deletion of user posts and account blocking in the event of violations of the communication standards set out in the terms and conditions are invalid. This was because the defendant provider had not undertaken to inform the user about the removal of his post at least subsequently and about an intended blocking of his user account in advance, had not informed them of the reason for this and had not given them an opportunity to respond with a subsequent new decision. If, due to the invalid terms and conditions of the provider’s contract, a user’s contribution was deleted and their account temporarily subject to a partial blocking, the user should be able to claim the activation of the deleted contribution and, an undertaking that there would be no further account blocking or deletion of the contribution upon its renewed posting.
The parties disputed the legality of a temporary partial blocking of the plaintiffs’ Facebook user accounts and the deletion of their comments by the defendant.
The plaintiffs each maintained a user account for a worldwide social network operated by the defendant’s parent company, whose provider and contractual partner for users based in Germany was the defendant. They claimed against the defendant – to the extent still relevant for the appeal proceedings – in respect of activation of the posts published by them on the network and deleted by the defendant, for an injunction against renewed blocking of their user accounts and deletion of their posts, and – in one of the appeal proceedings – for information about a company commissioned to implement the account blocking.
The ability to make interim care orders under s.38 Children Act 1989 is one of the family court’s most significant powers. With newborn babies, prompt action is not only desirable, it’s essential. But not so easy to achieve in practice, as you will hear from our lively and comprehensive conversation.
This episode will be the last before we take our August break, but plans for Law Pod UK from September are already being hatched so remember to tune in!
The focus of this judgment was on the jurisdiction, if any, that the High Court Family Division has to maintain a Reporting Restriction Order (‘RRO’) prohibiting the naming of any medical clinicians as being involved in the care and treatment of a child who had been the subject of “end of life” proceedings before the High Court prior to their death, and where an RRO had been made at that time preventing the identification of any of the treating clinicians and staff until further order.
Each of the children, Zainab Abbasi and Isaiah Haastrup, had been the subject of end of life proceedings under the inherent jurisdiction of the High Court, in which the issue was whether life-support should be withdrawn from them. Each of the two children died; Zainab Abbasi dying after the issue of proceedings but before the court could conduct a substantive adjudication, and Isaiah Haastrup dying following the removal of life-sustaining ventilation at the conclusion of a full legal process including an application to the Court of Appeal. In both cases, widely drawn RROs were made during the proceedings.
The offence of “Rechtsbeugung” in German law is not easy to translate. The best match we have for it in English is the offence of “misconduct in public office”. Misfeasance in public office, according to Archibold, is committed by
(a) a public officer acting as such who
(b) wilfully neglects to perform his duty and/or wilfully misconducts himself
(c) to such a degree as to amount to an abuse of the public’s trust in the office holder,
(d) without reasonable justification.
I have not been able to find any examples of judges being prosecuted for misconduct in public office in this country. However, this past fortnight in Germany, no less than eight searches have been carried out in the homes of judges, their expert witnesses, a guardian ad litem and others associated with a controversial ruling regarding Covid-19 restrictions. I posted on Judge Christian Dettmar’s ruling in early April and subsequent investigation here. Reminder: Judge Dettmar issued an injunction against two schools in Weimar to stop them imposing masking, social distancing and testing. This was in his view necessary in order to avert (further) compromising of children’s welfare.
Over ten years ago I posted on the wasteful prohibition under the EU Animal By-Product Regulation on feeding meat and bone meal – waste from slaughterhouses – to omnivorous farm animals, poultry and pigs. See Pigswill and public health: a load of EU Bull, 7 January 2011. While this regulation has been in force the protein needed by these fast growing animals has had to come from expensive soybeans, imported from South America where hundreds of miles of rainforests have been laid waste to make room for the soy crop. As you will remember from that post, the ban was introduced following the BSE crisis, itself a possibly predictable consequence of feeding spinal tissue to vegetarian ruminants.
This ban extended to anyone feeding food scraps to farmed animals, no matter how small the operation and how innocent the scraps. As I said in my last post,
Anyone with a few hens pecking away in the backyard needs to look sharp: a “farmed animal” for the purpose of the Regulation means any animal kept for the provision of food, and a couple of eggs a week may bring a Defra van trundling up the drive at any moment.
And in 2004 our very own Prime Minister, then MP for Henley, reported that in his constituency a hotel
must now pay an extra £1,000 a year to a licensed collector, whose responsibility it is to remove wet waste that previously went to a pigswill feeder. Given that there is room for only three years’ waste in our landfill sites, that is not the cleanest and greenest solution. It is estimated that the ban on swill feeding is generating an extra 1.7 million tonnes of waste per year, and that which does not fill up our landfill sites must be going down our drains, clogging up the sewers and attracting vermin
Finally it seems to have dawned on the EU Commission that this is a very un-green piece of legislation in an era where the EU obliges its member states by draconian legislation to recycle, limit landfill, restrict incineration, cut down on carbon emissions and save energy.
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.
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.
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.
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].
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:
In October 2020 the App Drivers & Couriers Union (‘ADCU’) filed a legal challenge against Uber Technologies Inc. for the dismissal of drivers by an algorithm in the UK and Portugal. The District Court of Amsterdam heard claims by the ADCU on behalf of three drivers from the UK, and a fourth driver from Lisbon, Portugal, was represented by the International Alliance of App-based Transport Workers.
The claims were brought under Article 22 of the General Data Protection Regulation (Regulation (EU) 2016/679) (‘GDPR’). The drivers’ complaints related to dismissals resulting from, among others, Uber systems’ detection of irregular trips associated with fraudulent activities in one case, and the installation and use of software with the intention and effect of manipulating the Uber’s Driver App in another case. The drivers were dismissed, given no further explanation, and denied the right to appeal. The Court was asked to determine to what extent the GDPR could protect individuals from unfair automated decision-making, specifically, individuals have the right to certain protections from automated decisions which create negative affects but are carried out without meaningful human intervention.
Episode 143 features Isabel McArdle and Sarabjit Singh QC of 1 Crown Office Row. Isabel practises in indirect tax, healthcare law, personal injury and public law. Sarabjit (“Sab”) specialises in tax, with a particular emphasis on all forms of indirect tax and the interface between tax and public law. They have both given seminars on the implications of Brexit for tax lawyers. In this episode, Rosalind English discusses with Sab and Isabel a number of laws containing Henry VIII powers, including the Childcare Act 2016, Section 8 of the European Union Withdrawal Act 2018, Section 31 of the EU Future Relationship Act 2020, the Coronavirus Act 2020 and Section 51 of the Taxation (Cross-Border Trade) Act 2018. Emma-Louise Fenelon did of course explore this subject in depth with the Public Law Project and Lord Anderson of Ipswich QC in Episode 129: Brexit and the Flaws of Delegated Legislation ; this episode takes this important subject further.
Henry VIII powers enable a minister to amend primary law by secondary legislation, effectively bypassing parliament. They also touch on the popularity of so-called “skeleton bills”. These bills are favoured by those in power because they have no policy in them so there’s nothing to scrutinise by both Houses of Parliament. And Henry VIII clauses are what feed these bills.
Following Brexit, everything from financial services, immigration from Europe, fisheries, agriculture – can all be achieved under Henry VIII in skeleton bills. The concern, from a constitutional perspective, is that there’s a lack of parliamentary scrutiny. They give huge power to ministers to amend and repeal Acts of Parliament.
We have to apologise for the building works sound effects in the background of this episode. We welcome our listeners to perceive them as an appropriate metaphor for the government hammering home their policies under these Henry VIII powers.
On 8 April 2021, the Weimar District Family Court ruled in Amtsgericht Weimar, Beschluss vom 08.04.2021, Az.: 9 F 148/21) that two Weimar schools were prohibited with immediate effect from requiring pupils to wear mouth-nose coverings of any kind (especially qualified masks such as FFP2 masks), to comply with AHA minimum distances and/or to take part in SARS-CoV-2 rapid tests. At the same time, the court ruled that classroom instruction must be maintained.
This is the first time that expert evidence has now been presented before a German court regarding the scientific reasonableness and necessity of the prescribed anti-Corona measures.The expert witnesses were the hygienist Prof. Dr. med Ines Kappstein, the psychologist Prof. Dr. Christof Kuhbandner and the biologist Prof. Dr. Ulrike Kämmerer were heard. 2020NewsDe has published a summary of the judgment, the salient parts of which are set out in full below (translation by DeepL).
The reason for highlighting this judgment in such detail is because of the consequences reported by the news website to the judge of his decision. According to 2020NewsDe, “the judge at the Weimar District Court, Christiaan Dettmar, had his house searched today [26 April 2021]. His office, private premises and car were searched. The judge’s mobile phone was confiscated by the police. The judge had made a sensational decision on 8 April 2021, which was very inconvenient for the government’s policy on the measures.” In a side note on the fringes of proceedings with other parties, continues 2020NewsDe, “the decision in question has been described as unlawful by the Weimar Administrative Court without comprehensible justification.”
A cautionary note: I have been informed by Holger Hestermeyer, Professor of International and EU Law at King’s Law School (@hhesterm), that cases quashing administrative acts (like the one at issue in the AG Weimar case) go to administrative courts in Germany. The case, says Professor Hestermeyer
had, indeed, been brought to the administrative court, but the court had not quashed the administrative act. The attorney then (according to Spiegel reports) was looking for plaintiffs to bring the case before this particular judge via telegram (competence is based on first letters of surnames, so the attorney was looking for plaintiffs with the right surname). The judge then assumed his competence (unprecedented), ruled not just for the plaintiffs but all kids at the school (peculiar), excluded an oral hearing (hmmm), rejected all mainstream scientific advise to base the judgment exclusively on the minority of experts rejecting all such measures (again hmmm) and excluded an appeal.
So there are important procedural problems with this judgment which must be borne in mind when reading my summary with excepts both from the original judgment and the report by 2020De below.
The court case was a child protection case under to § 1666 paragraph 1 and 4 of the German Civil Code (BGB), which a mother had initiated for her two sons, aged 14 and 8 respectively, at the local Family Court. She had argued that her children were being physically, psychologically and pedagogically damaged without any benefit for the children or third parties. At the same time, she claimed this constituted a violation of a range of rights of the children and their parents under the law, the German constitution (Grundgesetz or Basic Law) and international conventions.
Informed consent to medical treatment is at the heart of the vaccine debate. Consent is also at the centre of most of the cases that come before the Court of Protection. So now we have a very specific problem: what happens, if someone lacks capacity under the Mental Capacity Act, and their family for whatever reason objects to the Covid vaccine?
In the latest episode of Law Pod UK, Rosalind English talks to Amelia Walker of 1 Crown Office Row about three recent cases that came before the COP where the “protected person” (incapacitous under the Mental Capacity Act) was due to be vaccinated, but family members objected. Here are the citations to the cases discussed and the relevant statutes:
E (by her Accredited Legal Representative, Keith Clarke), Applicant v London Borough of Hammersmith and Fulham (Respondent) and W (2nd Respondent)  EWCOP 7
SD (Applicant) v Royal Borough of Kensington and Chelsea (Respondent)  EWCOP 14
NHS Tameside & Glossop CCG v CR (by his litigation friend CW)  EWCOP 19
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