R (o.t.a A and B) v. Department of Health  UKSC 41, 14 June 2017 – judgment here.
Sometimes The Law comes to the rescue. And by this I do not mean constitutional law versus populism or the rule of law versus raw-knuckled fighting. It just happens that, occasionally, litigation drawn from ordinary life encapsulates more political debating points than a week’s worth of press analysis.
If you want to hear the real deal about devolved government, Northern Ireland, sexual assault, the meaning of “England”, abortion, federalism, the power of the state, healthcare, medical tourism, women’s rights, discrimination, nationality, social security or the NHS, you need do no more than read this case. As for the majority judgments and the two dissenters, pay close attention to the language because within the phrasing other truths emerge.
Yates and Anor v Great Ormond Street for Children  EWCA Civ 410, 23 May 2017 – read judgment
On Thursday 8 June the Supreme Court will be asked to grant permission to appeal in this case of a seriously ill 9 month old child whose parents wish to take him to the USA for experimental treatment that may slow his deterioration.
The human issues are all over the press – this post will concentrate on the legal arguments in the Courts below, including the very recently published judgment of the Court of Appeal.
Perhaps the most interesting question in this case is not the statutory or human rights background, but the issue of jurisdiction. The court has as part of its inherent jurisdiction to rule on the child’s fate on the basis of his best interests. The appellants were arguing that this was not the test; that the question at the core of the consideration was that of “serious harm”. The parents argue that
the hospital’s application to prevent the delivery of a therapy which it did not, itself, intend to provide, was outside its powers as a public authority, and the court had no jurisdiction to uphold the hospital’s position.
FB v. Princess Alexandra Hospital NHS Trust  EWCA Civ 334, 12 May 2017, Court of Appeal – read judgment
The UK Human Rights Blog is not only for the reading eye. Here’s an audio version of David Hart’s post on the case of a junior doctor, a sick baby and the question of what we expect of senior house officers on busy Accident and Emergency admissions.
These audio files will soon be searchable in iTunes or wherever you like to find your podcasts for download onto your phone, to listen to on the train, in the gym, on your bike or gardening. We will let you know as soon as they become available.
Here’s an audio version of Poppy Rimington-Pounder’s post this week where she expands on some of the developments and news items she covers in conversation with Rosalind English. We hope soon to have a podcast platform for these news roundups and other interviews with members of 1 Crown Office Row: watch this space.
Paradiso and Campanelli v Italy (Application no. 25358/12), 24 January 2017 – read judgment
The Strasbourg Court ruled earlier this year that the prohibition on commercial surrogacy arrangements did not justify the Italian authorities’ actions in removing a 9 month old child from its non-biological parents and taking him into social care. Although they found no right to family life applied in the circumstances, there was a right to private life which the Italian authorities had breached.
The majority judgment as well as the dissenting and partially concurring opinions summarised below reveal very different approaches to the concept of family life across the Strasbourg bench.Continue reading →
In a few weeks’ time we hope to have regular podcasts of our roundups and other legal news available from iTunes for subscription or one off downloads. In the meantime here’s a link to my interview with Sarah-Jane Ewart, where we’re talking about the events and cases she has covered in her most recent roundup for the UK Human Rights Blog. I’ve converted this audiofile to MP3 format so it should be easy to download onto any device and does not take up much room. We will let you know as soon as the full UK Human Rights Podcast series is launched for download onto your smartphone or wherever you like listening to audio.
ABC v St George’s Healthcare NHS Trust and Others  EWCA Civ 336 – read judgment
All the advocates in this case are from 1 Crown Office Row. Elizabeth-Anne Gumbel QC, Henry Witcomb QC and Jim Duffy for the Appellant, and Philip Havers QC and Hannah Noyce for the Respondents. None of them were involved in the writing of this post.
In a fascinating twist to the drama of futuristic diagnosis, the Court of Appeal has allowed an argument that doctors treating a Huntington’s patient should have imparted information about his diagnosis to his pregnant daughter to go to trial.
The background to this case is outlined in my earlier post on Nicol J’s ruling in the court below. A patient with an inherited fatal disease asked his doctors not to disclose information to his daughter. The daughter came upon this information accidentally, shortly after the birth of her child, and found, after a genetic test, that she suffered from this condition as well, which has a 50% chance of appearing in the next generation. Had she known this, she would have sought a termination of the pregnancy. She claimed that the doctors were liable to her in damages for the direct effect on her health and welfare.
A claim for “wrongful birth” is well established in law; no claim was made on behalf of the child, who was too young to be tested for the condition. The twist is the duty of secrecy between doctor and patient, which has held very well for the past two centuries. Short of confessions pertaining to homicide or information regarding contagious diseases, the dialogue behind the consulting door should end there.
The problem is that the typical medical relationship only pertains to the pathology of the individual patient. Now that tests are available that make every single one of us a walking diagnosis not only for our own offspring but those of our siblings and their offspring, the one-to-one scenario collapses, along with the limited class of people to whom a doctor owes a duty of care. The pregnant daughter who came across the information about her father’s condition was not the defendant doctor’s patient. In pre-genetic days, that meant there was no duty of care relationship between her father’s doctors and her. But the certainty of hereditability brings her into that circle. Continue reading →