More vaccine litigation

swine_flu_vaccine313John (A Minor: Vaccine Damage Payments scheme), Re [2017] EWCA Civ – read judgment

As commentators to my previous post on immunisation have pointed out, vaccinations are not cost-free. But the benefit of eliminating pathogens through herd immunity is generally agreed to outweigh the occasional risk to individuals. Acknowledging that there are such risks,  the government has run a modern compensation system since 1979 for people who are “severely disabled” as a result of vaccination (now the 2012 Vaccine Damage Payments Scheme). The initial scheme was put in place in response to side effects of the whooping cough vaccine.

The question before the Court of Appeal in the present case was whether the determination of the severity of a person’s disablement could take account of prognosis. If an individual has been assessed as having a lifelong condition, is the state obliged to compensate them for future disabilities?

Yes, said the Court of Appeal: this is not speculation, our legal system is used to it. It is the “very stuff” of personal injury litigation.

Continue reading

Should courts order vaccination against parents’ wishes?

Vaccine in vial with syringe. Vaccination concept. 3d

Vaccine in vial with syringe. Vaccination concept. 3d

SL (Permission to Vaccinate), Re 2017 EWHC (Fam) EWHC (30 January 2017) [2017] EWHC 125 (Fam)

The alleged risks attending on vaccination were outweighed by the benefits of immunisation by a clear margin, the Family Court has ruled.

Background facts

The seven month old baby SL was subject of an interim care order. The mother (the third respondent) objected to immunisations on the basis that her other children had suffered adverse reactions from them in the past. The local authority applied under the court’s inherent jurisdiction for a declaration that it was in the child’s interests for it to be given permission to arrange for him to receive the Haemophilus Influenza Type b (Hib) vaccine and the pneumococcal conjugate (PCV) vaccine. Continue reading

Computer algorithm predicts most Strasbourg judgments

brainwigArtificial intelligence … it’s no longer in the future. It’s with us now.

I posted a review of a book about artificial intelligence in autumn last year. The author’s argument was not that we might find ourselves, some time in the future, subservient to or even enslaved by cool-looking androids from Westworld. His thesis is more disturbing: it’s happening now, and it’s not robots. We are handing over our autonomy to a set of computer instructions called algorithms.

If you remember from my post on that book, I picked out a paragraph that should give pause to any parent urging their offspring to run the gamut of law-school, training contract, pupillage and the never never land of equity partnership or tenancy in today’s competitive legal industry. Yuval Noah Harari suggests that the everything lawyers do now – from the management of company mergers and acquisitions, to deciding on intentionality in negligence or criminal cases – can and will be performed a hundred times more efficiently by computers.

Now here is proof of concept. University College London has just announced the results of the project it gave to its AI researchers, working with a team from the universities of Sheffield and Pennsylvania. Its news website announces that a machine learning algorithm has just analysed, and predicted, “the outcomes of a major international court”:

The judicial decisions of the European Court of Human Rights (ECtHR) have been predicted to 79% accuracy using an artificial intelligence (AI) method.

Continue reading

Sanctity of life v personal autonomy: Court of Protection

brainmapBriggs v Briggs & Ors [2016] EWCOP 53 (20 December 2016) – read judgment

Apologies for starting the new year on such a sombre note, but there is a shaft of light in that this Court of Protection judgement is a clear indication that judges – or some of them – are prepared to favour an individual’s autonomy over the traditional emphasis on the sanctity of life above all else.

As Charles J points out, this case raises issues of life and death and so vitally important principles and strongly held views. The decision he had to make was whether a part of the current treatment of Mr Paul Briggs, namely clinically assisted nutrition and hydration (CANH), should be continued. Mr Briggs was in a minimally conscious state (MCS) as the result of serious and permanent brain damage he suffered as the victim of a traffic accident eighteen months ago. He was not in a permanent vegetative state (PVS) and so the approach taken by the House of Lords in the Tony Bland case did not apply to him (Airedale NHS Trust v Bland [1993] AC 789). In that case, it will be remembered, their Lordships concluded that the continuation of life in such a state was futile. Problems arose with subsequent advancements in neurological diagnosis, where a less catastrophic condition known as MCS was established. In 2012 a court ruled that a patient in MCS could not be deemed to have made an advance directive regarding medical treatment even though during her lifetime she had made her position very clear that she would not want to continue living in such a reduced state (Re M (Adult Patient) (Minimally Conscious State: Withdrawal of Treatment) [2012] 1 WLR 1653). Her views did not, in their view, encapsulate the state of MCS. See my post on that decision here. Baker J’s refusal of the family’s application to allow treatment to be withdrawn came in for severe criticism in the British Medical Journal (see Richard Mumford’s post on that article). The author took Baker J to task for not according significant weight to the informally expressed views of M on life-sustaining treatment, expressed before she came ill. Charles J took a very different approach in this case. Continue reading

Aggrieved student wins right to challenge degree grade in full trial

mortarboard-svgSiddiqui v University of Oxford [2016] EWHC 3150 (5 December 2016) – read judgment

This case raises the interesting question of whether a disappointed graduate may call upon the courts to redress a grievance concerning the grade he was given for his degree; not just what his ground of claim should be, but whether this is the kind of grievance which should be navigated through the courts at all. There are some matters which are arguably non-justiciable matters of academic judgment.

The facts of the case may be summarised briefly. The claimant is a former history student at Brasenose College, Oxford. The defendants are, or the defendant is, collectively, the Chancellor, Masters and Scholars of the University of Oxford. The defendant is referred to throughout as the University.

The claimant sat his final examinations in June 2000 and obtained an Upper Second Class Bachelor of Arts Honours degree in history. His claim against the University was for damages for negligent teaching leading, he alleges, to him failing to get a higher 2:1 or a first class degree which, he said, he would otherwise have achieved.

The University applied to strike out the claim and/or for summary judgment on the ground that it was hopelessly bad on the merits and also plainly time barred. Continue reading

Corporeal freedom after death?

cryonics-tanksJS (Disposal of Body), Re [2016] EWCH (Fam) (10 November 2016) – read judgment

A great deal has been written about this case but few of the headlines reflect the humanity and sensitivity of the decision, which may not be ground breaking nor precedent setting, but reflects how the law should respond to individual wishes if those play out in a way that cannot harm anyone else. Post-mortem cryonics may have a certain morbid ring, but it is a matter of individual choice, provided the resources are there to pay for it. As the judge observed, it was

 no surprise that this application is the only one of its kind to have come before the courts in this country, and probably anywhere else. It is an example of the new questions that science poses to the law, perhaps most of all to family law.

Background facts and law

Peter Jackson J was faced with an application from JS, a 14 year old cancer patient whose condition had become untreatable. After researching the diminishing options available to her, JS had come across cryonics, the freezing of a dead body in the hope that resuscitation and a cure may be possible in the distant future. The science ofcryopreservation, the preservation of cells and tissues by freezing, is now a well-known process in certain branches of medicine, for example the preservation of sperm and embryos as part of fertility treatment. But whole body cryopreservation has not been achieved in any mammal species, largely due to the difficulties of reviving brain tissue. As the judge said,

cryonics is cryopreservation taken to its extreme.

Only three organisations in the world provide this service, one in the United States being involved in this case. The cost is about ten times as much as the average funeral. Although JS’s family is not well off, her grandparents had raised the necessary funds. Whatever anyone may think of this procedure, there was no doubt about JS’s intelligence and her capacity to make this decision. She wrote, in response to asking to explain why she wanted “this unusual thing done”:

 I’m only 14 years old and I don’t want to die, but I know I am going to. I think being cryo-preserved gives me a chance to be cured and woken up, even in hundreds of years’ time. I don’t want to be buried underground. I want to live and live longer and I think that in the future they might find a cure for my cancer and wake me up. I want to have this chance. This is my wish.”

Continue reading

Segregation in faith schools does not offend Equality Act: High Court

largeThe Interim Executive Board of X School v Chief Inspector of Education, Children’s Services and Skills  [2016] EWHC 2813 (Admin) – read judgment

The principal issue in this  application for judicial review was whether a mixed school unlawfully discriminated against its male and/or female pupils by making “parallel arrangements” for their education in the same building or by applying a regime of “complete segregation” for all lessons, breaks, school clubs and trips. There was no evidence that either girls or boys were treated unequally in terms of the quality of the education they received (in the sense of one sex receiving a lower quality of education than the other).

This case raises a point of general public importance as to the true construction and application of key provisions in the 2010 Equality Act. As the judge observed, it was a point which had not arisen before, and so should be answered on “a first principles basis, applying standard interpretative tools to the language, policy and objects of the statute.” Continue reading