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Sophie Basma (“Sophie”) is 10. She suffers from Type 3 Spinal Muscular Atrophy (“SMA”). SMA is a rare, genetic, neuromuscular disease which progressively leads to sufferers being unable to walk or sit unaided with devastating consequences on their quality of life. Sophie can no longer walk. There is medication for SMA sufferers which would have had the potential of helping Sophie regain her ability to work. But the NHS Trust had concluded that Sophie did not meet the eligibility criteria for this new medication, “Nusinersen”.
By her mother she challenged the decision by way of judicial review. The judge below found that the NHS Trust had lawfully reached the decision that they did. This was her appeal against that finding.
The Hague Court of Appeal has recently handed down a ruling that is of profound importance to environmental lawyers. It is not only the first case at the appellate level in Europe that has resulted in a victory on the merits for the victims, but also the first case to hold that a parent company was under a duty of care with regard to foreign claimants. I will attempt to summarise one of the judgments in the following paragraphs, but readers would do well to look at the detailed analysis of the case by Dr Lucas Roorda on the Rights as Usual blog: “Wading through the (polluted) mud: the Hague Court of Appeals rules on Shell in Nigeria”.
David Hart QC will follow up my post with a piece on the UK Supreme Court decision in Okpabi v Shell on 12 February 2021.
There are in fact three judgments in this case Four Nigerian Farmers and Milieudefensie v. Shell; as Dr Roorda says,
The first (‘Cases A and B’) concerns an oil spill from an underground pipeline near Oruma in 2005; the second (‘Cases C and D’) concerns an oil spill from an underground pipeline near Goi in 2004; the third (‘Cases E and F’) concerns an oil spill from a wellhead near Ikot Ada Udo.
In the latest episode of Law Pod UK Rosalind English talks to Matt Hervey, co-editor with Matthew Lavy of a new practitioner’s text book on Artificial Intelligence. Matt is Head of Artificial Intelligence at Gowling WLG., and advises on all aspects of AI and Intellectual Property, particularly in relation to the life sciences, automotive, aviation, financial and retail sectors. Our discussion ranges across many areas covered by the book, which was conceived a mere three years ago when the only laws we had to deal with machine learning were those to do with self-driving vehicles and automated decision making under the GDPR. This is a very important subject which is why Law Pod UK visits it again and again; Matt compares machine learning to the industrial revolution itself.
The ability to understand patterns in language and sudden unlocking ability of machines to understand language and see things has massive implications.
But there are much greater challenges, particularly on the topics of liability, foreseeability, and the general risks of AI,
a technology that is aiming to replicate or even transcend human abilities.
In the forthcoming months I will be speaking to Matt’s fellow contributors to the book on their specialist subjects, including negligence, liability for physical and economic harm, AI and professional liability, and more on AI and intellectual property, a fascinating subject which Matt touches on in this episode.
In an earlier post I discussed the problem of “vaccine hesitancy” and written evidence to Parliament to Parliament outlining ways in which a vaccination against Covid-19 without consent could be put on a par with capacity under the Mental Capacity Act 2005 and with Section 3 of the Mental Health Act 1983.
Since the announcement of successful clinical trials for the vaccination was made in mid-December, the prospect of population-wide vaccinations has become a reality, and, whilst there are still supply problems, there is no doubt that the issue of medical intervention without consent being made mandatory either through private channels has begun to exercise legal minds across the country. Saga cruise line and the airline Qantas for example have indicated their intention to refuse non vaccinated passengers. Such private prohibitions may have almost as broad an effect as the restrictions on civil liberties passed under the Coronavirus Act since lockdown was declared on March 23 2020 (more specifically, the Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020).
Snowed in while locked down? What would be more cheering reading than news from one of the no-frills airlines that there will soon be a fast track for vaccinated passengers to leave these shores for balmy Mediterranean beaches, or as the ad puts it “sunshine destinations”. Ryanair recently put out the slogan
Jab and Go
This advertising campaign, encouraging consumers to book flights following the roll out of the UK vaccination programme, might have been a perfectly understandable response to the year-long shock of having very few passengers to transport and the equally deranging inability of citizens to travel abroad.
But it turns out that Ryanair were somewhat ahead of themselves, as the Advertising Standards Authority has found that it was misleading for the airline to give the impression that most people who are hoping to take to the air over the Easter or summer holidays this year will have had the Covid-19 vaccination in time to do so.
Following my post on the Weimar District Court judgment, here is news from Belgium. This summary of the ruling is from the journal LeVif.
The police tribunal in Brussels issued a judgment on 12 January acquitting a man summoned for non-wearing of a mask, according to his lawyer, Hélène Alexandris. The judge concluded that the enforced wearing of the mask in public space was unconstitutional. Interior Minister Annelies Verlinden said the public prosecutor has appealed against the decision.
In a landmark judgment on January 11, a district court judge in Weimar declared the prohibition on social contact unlawful as contrary to the German Basic Law (Gründgesetz). Its order at the time had been unconstitutional because the Infection Protection Act was not a sufficient legal basis for such a far-reaching regulation as a contact ban, the ruling said. The order of the contact ban had violated human dignity and had not been proportionate. (Reported in MDR Thüringen on 22 January 2021)
Kontaktverbot verstößt gegen Menschenwürde (Verdict: Contact ban violates human dignity)
In this case a citizen of Weimar had been prosecuted and was to be fined €200 for celebrating his birthday together with seven other people in the courtyard of a house at the end of April 2020, thus violating the contact requirements in force at the time. This only allowed members of two households to be together. The judge’s conclusion was that the Corona Ordinance was unconstitutional and materially objectionable.
This is the first time a judge has dealt in detail with the medical facts, the economic consequences and the effects of the specific policy brought about by the Coronavirus pandemic (thanks to @HowardSteen4 for alerting me to this judgment, and commentaryquoted below).
On Wednesday 30 December, the UK parliament passed Boris Johnson’s trade and cooperation agreement with the European Union. Professor Catherine Barnard of Cambridge University is continuing her series 2903 CB. Everyone agrees this is a bit of a thin deal – as Catherine predicted – but is it a good deal?
As Catherine said, the negotiating team has delivered on sovereignty. There’s no reference in the text to the CJEU or EU law. On the other hand, there’s very little about services of any sort in the deal. This is because the UK was so keen not to be subject to the European Court of Justice, so it was not looking for concessions in this area.
The document is a daunting 1246 pages long – but the first four hundred odd are the meat of the deal, and in Episode 133 Professor Barnard delivers a succinct and truly helpful summary of what she calls a “Canada minus” free trade deal.
One question David didn’t go into occupies only two pages of the 183 paragraphs but is worth a post on its own. The claimant insurers argued that the defendant Secretary of State had unlawfully omitted to make regulations under the Social Security (Recovery of Benefits) Act 1997 that would have limited the amount of the liability imposed on the insurer by that Act (Section 22(4)). This is because of subsequent developments in the law of tort which made unlimited liability unfair. They maintained that as Parliament had itself been prepared to delegate authority in this area to the Executive, the failure of the defendant to make secondary legislation led directly to their loss. Section 30(1) of the 1997 Act provides that any power under it to make regulations or an order is exercisable by statutory instrument.
Covid, clinical negligence, quarantine, lockdown, inquests, nerve agents, algorithms, child abuse, coercive and controlling behaviour and racism. What’s there not to like in our smorgasbord of favourites from the past eleven months?
Worry not: there are laughs to be had. A bee bothers a bureaucrat with solemn consequences for subordinate legislation in a motion of regret debate.
I was put on to this decision from the Court of Queen’s Bench of Alberta by a response to a post from the Secret Barrister on Twitter (@barristerSecret) . This concerns the Magna Carta tsunami that has wreaked a certain amount of havoc on social media in response to the government’s Covid restrictions.
I wrote about the launch of these proceedings earlier this year (Legal Challenge to Lockdown) where Mr Dolan was refused permission to appeal the refusal of his application for judicial review. (see Dominic Ruck Keene’s post on that decision). Since then UKHRB has been covering this and similar challenges closely: see here and here, as well as alerting our readers to cases in other countries: New Zealand, and South Africa. My recent post on “vaccine hesitancy” and proposals for mandatory Covid-19 vaccines has attracted a considerable number of readers and comments.
Getting back to the case in hand, this latest defeat for Dolan’s team is slightly more complicated. The Court of Appeal’s ruling can be summarised briefly, but anyone wanting to be reminded of the details will do well to go back to Emmet Coldrick’s enlightening series on the earlier stages of this case and the arguments raised by the appellants in Part 1 and Part 2.
In her judgment of 27th February 2020 Hilder J laid down certain rules regarding what a property and affairs deputy can and cannot do in relation to seeking legal advice and taking steps in litigation. In these joined cases the deputies applied to the COP seeking orders for authorised expenditure of the protected persons’ estate for their costs in obtaining legal advice and conducting proceedings on P’s behalf.
The Senior Judge’s conclusions are set out in her summary at the end of the judgment. In Episode 131 of Law Pod UK Amelia Walker of 1 Crown Office Row discusses some of the salient issues in this comprehensive “one stop shop” ruling with Rosalind English.
Artificial intelligence (AI) aims to mimic human cognitive functions. It is bringing a paradigm shift to healthcare, powered by increasing availability of healthcare data and rapid progress of analytics techniques. Robert Kellar QC of 1 Crown Office Row joins Rosalind English in the latest episode of Law Pod UK to answer some pertinent questions about the application of AI in healthcare and what it means for clinical negligence and other forms of litigation and regulation in medicine.
Will we come to a point when healthcare providers will be under a duty of care to use Artificial Intelligence? At some point the argument is likely to be raised that the advantages of AI are so stark that it would be illogical or irresponsible not to use it. What would this mean for the Bolam test? And for the courts – a judge hearing a clinical negligence case where the issues turn on algorithms may need to be more familiar with computer programming than with medical practice.
Hear these and more fascinating and not too far fetched points in discussion in Episode 130.
Would you be first in the queue for the Covid-19 vaccine if and when it is rolled out? Or would you prefer to wait and appraise its effects on more pioneering citizens? With nearly a year of widespread media coverage of the coronavirus, it would not be surprising if a large percentage of an already fearful population exercised its right not to be subjected to what would be an assault and battery under English law: medical treatment without consent.
This is a syndrome, and it has a name. It is called “vaccine hesitancy”. The WHO describes this as “the reluctance or refusal to vaccinate despite the availability of vaccines”. Our willingness to avail ourselves of a future COVID vaccine is very much in doubt, and it is in doubt in high places.
Should a Covid-19 vaccine become available at scale, we cannot expect sufficient voluntary uptake.
Update: on Tuesday 17 November the Danish government finished considering a new law giving the government extended powers to respond to epidemics. Parts of this law that propose that:
People infected with dangerous diseases can be forcibly given medical examination, hospitalised, treated and placed in isolation. The Danish Health Authority would be able to define groups of people who must be vaccinated in order to contain and eliminate a dangerous disease. People who refuse the above can – in some situations – be coerced through physical detainment, with police allowed to assist. See the Danish newsletter here. In this country, Health Secretary Matt Hancock has refused to rule out mandatory inoculation, telling talkRADIO the government would ‘have to watch what happens and… make judgments accordingly’.
In July 2020 a group of philosophy and law academics presented written evidence to Parliament proposing that individuals should undergo vaccination as a
condition of release from pandemic-related restrictions on liberty, including on movement and association
The authors of the report base this proposal on two “parity arguments”:
a. If Covid-19 ‘lockdown’ measures are compatible with human rights law, then it is arguable that compulsory vaccination is too (lockdown parity argument); b. If compulsory medical treatment under mental health law for personal and public protection purposes is compatible with human rights law, then it is arguable that compulsory vaccination is too (mental health parity argument).
They contend that there is “an arguable case” for the compatibility of compulsory vaccination with human rights law.
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