The spotlight during the pandemic has been on frontline workers in the medical profession. But if you think of it, the real hazards are to be found in the dentist’s surgery, where most interactions with patients involve an operation in the mouth, whether it be drilling, cleaning or extraction. Most of what a dentist or a dental hygienist does is what has become widely known as an AGP – “aerosol generating procedure”.
In the latest episode of Law Pod UK Rosalind English talks to the head of indemnity at the British Dental Association Len D’Cruz about the challenges facing the dental profession during lockdown and the even greater hurdles to be faced after dentists resumed practice on the 8th of June 2020.
How to determine “best interests” in the case of an adult lacking capacity, where a proposed medical donation for the benefit of a close relative may cause lasting harm to the donor?
Here, MC was the subject of an application by an NHS Trust seeking the court’s consent for the harvesting of peripheral blood stem cells so they can be donated to her mother who has chronic leukaemia. As Cohen J noted, this was the first time that an application for the extraction of bone marrow or stem cell donation by someone lacking capacity had come before the Court of Protection and the first time the Human Tissue Authority (“HTA”) had been involved in a case of this nature.
MC’s mother had been diagnosed with leukaemia several years previously. The medical advice was that despite repeated cycles of chemotherapy she had not achieved remission and her life expectancy without a stem cell transplant was estimated to be about 12 months. Other members of family have been screened as potential donors but MC was the only one who was a match.
It was established that MC herself, who had long standing learning and language difficulties, did not grasp the implications of the donation procedure.
PBSC donation is not trivial. MC would be required to have repeated screening blood tests and four injections given over consecutive days. The purpose of these injections is to encourage the stem cells to move out of the bone marrow and into the blood stream. The side effects include pain and flu-like symptoms, and the procedure would require hospital visits by MC in the midst of a pandemic.
In determining whether this would be in MC’s best interests, it was important to bear in mind that this procedure would have no physical benefit for MC herself. It would be “entirely to benefit a third party.”
The fact that such a process would obviously benefit the plaintiff is not relevant unless, as a result of the defendant helping the plaintiff in that way, the best interests of the defendant are served. [Re Y (Mental Patient: bone marrow donation)  Fam 110].
On the other hand, Morgan J in Re G (TJ) observed that
The word “interest” in the best interests test does not confine the court to considering the self-interest of P. The actual wishes of P, which are altruistic and not in any way, directly or indirectly self-interested, can be a relevant factor.   EWHC 3005 (COP)
In this case, the determination of “best interests” was a relatively easy one to make. For MC’s mother, the stem cell donation procedure would elevate a poor chance of survival to a 43-45% survival rate at 5 years, and that was obviously a “potentially highly significant benefit.” There were clear benefits, emotional, social and psychological, to MC of her mother’s life being extended. It was therefore “overwhelmingly” in MC’s best interest to participate in the proposed programme and donate her stem cells for the benefit of her mother. “It was in MC’s best interests as much her mother’s.”
Despite the clarity of the case before him, Cohen J emphasised the concerns of the Official Solicitor in this unusual set of circumstances:
Apparently, there are about 65 individuals each year under the age of 18 for whom the HTA gives approval for this sort of procedure. It is not known how many of those individuals have difficulties with capacity in the way MC has. MC’s case has come before the court because she is in law an adult in circumstances where there is no Lasting Power of Attorney or a Court Appointed Deputy who can give consent
For those under the age of 18, on the other hand, there is something of a vacuum in the law. The Health Authority only owes a duty of care to the donee; and the HTA is only obliged to check if there is consent (which is sufficient if given by a parent) and that no money has changed hands, which is prohibited.
Nowhere is there at the centre of what is being considered either by the treating Trust or the Human Tissue Authority, the best interests of the donor.
In his concluding remarks, Cohen J called for “a considered risk and benefit analysis by the accredited assessor”, that is, a considered deliberation of the factors set out within s.4 of the Mental Capacity Act 2005 to be performed in each case where the HTA is faced with an issue of capacity of the donee.
This case is a timely illustration of the unenviable task faced by judges, doctors and mental health professionals during Lockdown.
This judgment was delivered following a remote hearing conducted on a video conferencing platform of an urgent application brought by the University Hospital Coventry and Warwickshire NHS Trust. In this final hearing, held remotely, the Trust have asked the Court of Protection to consider questions of capacity and best interests relating to a young woman named in this judgment as “K.”
K, the patient, was 36 years old and lived in secure accommodation. She had never been formally assessed but had been to a special needs school and was recognised as having learning difficulties. In late May she was diagnosed with cervical cancer. In this application, the Trust sought an order declaring that K lacked the capacity to consent to the medical treatment for her cancer and further, that it was in her best interests to undergo a combination of radiotherapy and chemotherapy with the aim of trying to cure her or at least to provide her palliative and symptomatic relief.
The judge noted consensus amongst the treating clinicians both in respect of K’s capacity to understand the treatment and that receiving the treatment would in K’s best interest. K’s mother agreed. But the application had been properly brought before the court. Firstly, because the proposed treatment was highly intrusive, secondly it involved the premature onset of menopause, but most importantly because the treatment plan was so onerous that there was distinct possibility that K might withdraw her co-operation from it as it became more challenging.
As Hayden J observed, K was a young woman who had an understanding that she had a condition which was serious or bad, but he did not believe that she understood that she might die from it:
although K has heard the word, “cancer,” it had not sunk in that this is a life – threatening condition. The judge accepted the expert evidence to the effect that “K can understand words and concepts to a degree but cannot retain them to evaluate them so as to be able to use or weigh them. In these circumstances she lacks the capacity to consent to medical treatment.”
It was with “very little hesitation” that the court concluded that K did not have the capacity to evaluate the necessary decision in relation to her medical treatment. Hayden J granted the hospital’s application and commended the pre-emptive approach taken by the trust, which was to commence chemotherapy treatment on the 30th of June 2020.
News just in: The UK’s Nightingale hospitals will be converted into cancer testing centres from next week to help deal with the growing backlog in testing.
PHG, linked with Cambridge University, provides independent advice and evaluations of biomedical and digital innovations in healthcare. PHG has recently published a series of reports exploring the interpretability of machine learning in this context. The one I will focus on in this post is the report considering the requirements of the GDPR for machine learning in healthcare and medical research by way of transparency, interpretability, or explanation. Links to the other reports are given at the end of this post.
Machine learning typically denotes “methods that only have task-specific intelligence and lack the broad powers of cognition feared when ‘AI’ is mentioned”. Artificial intelligence (AI) can be defined as “the science and engineering of making computers behave in ways that, until recently, we thought required human intelligence.” We are only beginning to realise the scope of intelligence that is silicone-based, rather than meat-based, in the reductionist words of neurscientist and author Sam Harris. It is important too to grasp the difference between types of programming. As this report puts it,
Machine learningas a programming paradigm differs from classical programming in that machine learning systems are trained rather than explicitly programmed. Classical programming combines rules and data to provide answers. Machine learning combines data and answers to provide the rules
COVID-19 has changed many things about society, and one of the most significant is the erosion of the taboo surrounding death. After all, we have daily bulletins on death figures. As Dignity in Dying Sarah Wootton says, in her forthcoming book “Last Rights”,
The coronavirus pandemic has thrust death and dying into the mainstream.
This sensitive and compassionate judgment by Hayden J following a remote hearing of the Court of Protection is therefore worth our attention, as we all become more aware of how acutely things slip out of our control, not least of all our health.
The application from the Trust concerned a 34-year-old man (MSP) who has had significant gastrointestinal problems for approximately 10 years, requiring repeated invasive surgery. At the time of the hearing he was unconscious and on life support in ICU. The issue framed in the application was whether the Trust should continue to provide ITU support or withdraw treatment other than palliative care.
Between 2013 and 2020 MST underwent significant abdominal surgery and had a stoma inserted in 2018. The court noted that he “utterly loathed” life with a stoma. He did express his consent to the stoma being inserted at the time, but this consent seemed entirely contrary to his unambiguous rejection of this procedure, expressed bluntly to three consultants with whom he had discussed it. It also appeared entirely inconsistent with everything he had said to his mother, father and step-sister on the point.
Significantly, on 4th February 2020 MSP had written a carefully crafted Advance Directive which he had copied to his parents and to his step-sister. Outside the hospital setting these were the only three people who knew MSP had a stoma. He did not even wish his grandmother to be told. In this Advance Directive he stipulated, among other things, that he would refuse the “formation of a stoma, through an ileostomy, colostomy, urostomy or similar, that is expected to be permanent or with likelihood of reversal of 50% or under”.
On 26 May, judicial review proceedings were launched in the High Court which not only challenged the lawfulness of the Lockdown Regulations as having been made “ultra vires” under the 1984 Public Health Act, but also claimed that they are disproportionate to the threat posed by Covid-19. Philip Havers QC of 1 Crown Office Row is acting for the claimant: see my post on the launch proceedings here.
This latest communication from the claimant has challenged the legality of the latest lockdown regulations, the Health Protection (Coronavirus, International Travel) (England) Regulations 2020, enforceable from Monday 8 June. (NB whilst there might be changes afoot in respect of people travelling from and within the EU, the current position remains as set out in the regulations which took force this week). The claimant observes that from many weeks of data collected since it first affected the UK, that Covid-19 overwhelmingly affects primarily the elderly and those with pre-existing health conditions, not the “vast majority of the working population.”
Young people and children are scarcely affected at all. Indeed, as of the latest available figures published by NHS England, we note that out of a population of 56 million people in England alone, since the outbreak started, Covid-19 has been cited on the death certificates of just 279 people who died in hospital in England under the age of 60 with no pre-existing health condition. *
In the latest episode of Law Pod UK, Rosalind English discusses the Agriculture Bill with Peter Stevenson, senior policy advisor to the campaign organisation Compassion in World Farming. We have chosen the rearing of food animals as our focus for this interview because of the circumstances in which the current pandemic is said to have arisen; the zoonotic event of an animal virus passing to humans in the pathogen-rich wet markets of China. Intensively farmed “wildlife” may sound an alien concept, if not something of an oxymoron, but the dangers of industrial farming of animals are becoming increasingly apparent in the West.
The main concern is that there are no provisions in the framework bill to protect UK food producers from being undercut by imported food from countries where standards of animal welfare and hygiene do not apply.
See Rafe Jenning’s post on the salient features of the Agriculture Bill 2020 for more details about its provisions for “public money for public goods”, Environmental Land Management Schemes that promote these goods such as improvements to soil health, pollinator density and biodiversity, all activities that the market does not sufficiently incentivise.
“One need only to think about the irrationality in being allowed to buy a jersey but not undergarments or open- toed shoes “
A High Court judge in South Africa has just taken a stand on the ANC government’s reaction to the pandemic. He has ruled that some of the lockdown regulations do not satisfy the rationality test under public law, and that their encroachment and limitation on the freedoms set out in the South African Bill of Rights are not justified in a society based on “human dignity, equality and freedom as contemplated in Section 36 of the Constitution.”
He drew “clear inference” from the evidence, that once the government had declared a national state of disaster, the goal was to flatten the curve by way of retarding or limiting the spread of the virus (“all very commendable and necessary objectives”). However, “little or in fact no regard” was given to the extent of the impact of individual regulations on the constitutional rights of people and whether the extent of the limitation of their rights was justifiable or not.
His criticism was not that the government should have done nothing in the face of the epidemic, but that they took a cartwheel to crush a butterfly.
The starting point was not “how can we as government limit Constitutional rights in the least possible fashion whilst still protecting the inhabitants of South Africa?” but rather “we will seek to achieve our goal by whatever means, irrespective of the costs and we will determine, albeit incrementally, which Constitutional rights you as the people of south Africa, may exercise”.
What is international law for, if it cannot be enforced against the country responsible for breach? That is the question raised by a recent report documenting a series of steps by the Chinese Communist party to conceal from the World Health Organisation and the rest of the world the outbreak and human-to-human transmission of coronavirus. If we want a rules-based international order to mean anything, the authors of the report point out, it must be upheld.
In a world in which authoritarian states often act with impunity, it is tempting to forget that the rules-based international order places obligations on everyone. The Peoples’ Republic of China (PRC) is no exception to this rule. International law – in the form of Treaties, Covenants and Charters – places obligations on China, just as much as it does on the democracies of the West.
This paper identifies a number of possible legal avenues by which the wider world can pursue the PRC for the damages inflicted by its response to the COVID-19 outbreak.
I will attempt a summary of the report in the following paragraphs.
The WHO and the International Health Regulations 2005
The International Health Regulations (IHR) were adopted by the World Health Assembly, the decision-making body of the World Health Organisation (WHO). The IHR were designed to prevent the international spread of disease by placing obligations on states to prevent certain highly-transmissible diseases that were named and notifiable. The IHR were revised in 2005, in response to the 2003 SARS 1 outbreak, and entered into force in 2007.
In the current circumstances, this case has important resonances and maybe even implications for future vaccinations. It was an appeal by the parents of a ten year old child against a decision that the local authority, had lawful authority to have the child vaccinated (pursuant to Section 33(3) of the Children Act 1989.
The local authority had made care and placement orders in respect of the child, who was at the time in foster care. The LA argued that it had lawful authority, pursuant to the Children Act 1989 s.33(3), to arrange the vaccination of a child in care notwithstanding the objection of the parents, and that therefore it was unnecessary and inappropriate to refer the decision to the High Court under its inherent jurisdiction. Parental views regarding immunisation had always to be considered but the decision depended solely on the child’s welfare.
The new contact tracing app (NHSX) is due to be rolled out in the rest of the UK some time after the Isle of Wight trial in May. Is this a way out of lockdown or an irreversible erosion of our privacy? In the latest episode of Law Pod UK Rosalind English talks to Professor Lilian Edwards of Newcastle University, whose Coronavirus (Safeguards) Bill 2020 seeks to address some of these concerns, particularly potential issues of coercion and discrimination. See our previous post reporting on the Webinar “The Covid-19 App – does it threaten privacy rights” held by Professor Edwards and others on 13 May.
In the latest episode of Law Pod UK, Robert Spano, who recently commenced his tenure as President of the European Court of Human Rights in the difficult circumstances of lockdown and remote working, discusses with Rosalind English the challenges we face with automated decision making and governmental interference with our lives. The pandemic has sharpened this question, as the lifting of restrictions is made contingent on various automated projects such as the contact tracing app, which we will be considering in the next episode. Spano explains that rapid advances in AI will not just require new legal and regulatory responses. Artificial intelligence will also fundamentally alter the institutional capacities and legitimacy of courts as sources of governance. How will AI reshape our understandings and implementations of law? How will it reshape the internal workings of courts? Listen to Episode 112 to find out more.
I wrote up Jay J’s dismissal on the challenge to the lawfulness of trading restrictions in the 2018 Ivory Act here. The details of the appellant’s role and their arguments, as well as the reasoning behind the judge’s decision, are set out in that post. The thrust of the initial claim was that the prohibitions in the Act went too far and were disproportionate under Articles 34, 35 and 36 of the Treaty on the Functioning of the European Union (“TFEU”). The question before the Court of Appeal was whether the judge applied the proportionality test correctly.
The overarching complaint was that the evidence base was insufficient. The appellant’s criticisms of Jay J’s analysis can be summarised as follows:
(i) wrongful use of the precautionary principle and the acceptance of inadequate evidence to support the bans;
(ii) failure to take account of the failings in the Impact Assessment which preceded the Bill and the according of too much deference to Parliament; and
(iii) violation of the principle of respect for property and the wrongful failure to require a right to compensation.
The Court of Appeal noted that this appeal has arisen whilst the United Kingdom is in the transition period following exit day from the European Union. It sufficed to record that until the end of the “Implementation Period”, which is presently set at 11pm on 31st December 2020, the same rules apply as they did prior to exit day.
In the rush to lift the lockdown with safeguards, the government has given a green light to “contact tracing” via bluetooth apps on our smartphones (provided we own them and are willling to take up the app). See Rafe Jenning’s post on the technology behind this project.
Just to remind us what contact tracing via bluetooth apps means, I will recapitulate what Lord Sandhurst says in his introduction.
The government propose a centralised model, under which, I download the centralised app on to my phone. I will keep the phone, and the app, switched on at all times. It will record the identity of the phone of any person to whom I pass close and save that information. If I learn that I am infected I get that phone to pass that information to the central server of NHSX. The server then sends a message to all people with whom I’ve been in contact within a relevant time period, that tells them that they are at risk of infection but not directly, and from whom
This is a fast moving development and indeed this post may be rendered otiose in a week’s time, particularly as the UK does not, as yet, have entirely reliable antibody tests ( news just in is that this may change.) But on 13 May we had the benefit of a virtual gathering of legal experts in data protection, human rights and constitutional law facilitated by, amongst others, Lord Sandhurst (formerly Guy Mansfield QC of 1 Crown Office Row), on the results of the first test run of the tracing app in the Isle of Wight, courtesty of the Society of Conservative Lawyers.
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.