By: Rosalind English
13 November 2017 by Rosalind English
B (Applicant, acting as litigation in person) – and – D (by his litigation friend, the Official Solicitor) (1) The Ministry of Defence (2) [2017] EWCOP 15 Respondents – read judgement
Stem cell therapy has been very much in the news recently, as doctors have saved the life of a seven year old boy with a genetic disorder that caused the top layer of his skin to blister and flake away. After years of struggling with this painful and dangerous disease – antibiotics, bandages and even skin transplants were to no avail – the boy was on the point of death from bacterial infection. The skin contains its own supply of specialised stem cells, which allows the epidermis to be constantly renewed throughout our lives, with cells turning over roughly every month. This also allows scientists to grow grafts in culture, simply by taking a small sample. Specialists in Germany cultured centimetre wide pieces of his skin and engineered this tissue to accept the correct gene through viral transfer. The healthy patch of skin was then grown in the laboratory until enough of it was ready to be grafted back on to the boy’s body. Ultimately the team was able to replace 80% of the child’s skin. He is now understood to be leading a normal life at school, playing soccer and generally not displaying any of the dangerous side effects of gene therapy.
The relevance of this success story to this Court of Protection case will soon become obvious. In this hearing Baker J, deciding the best interests of D, a young man severely brain damaged after being assaulted by another soldier, had to determine whether his strongly held desire to travel to Serbia for stem cell treatment should prevail over the medical opposition to such a step. This was not a case of scarce allocation of public resources as D had the money from his compensation award to spend on this treatment.
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27 October 2017 by Rosalind English
Detention and the common European Asylum System – Alasdair Henderson and Suzanne Lambert
The highlights of the Public Law Seminar given by members of 1 Crown Office Row are now available for podcast download here or from iTunes under Law Pod UK, Episodes 13, 14 and 15. For ease of reference the following three posts set out the introductions to each of the presentations and the case citations.
For non-Apple devices the podcasts are available via the Audioboom app.
Click on the heading for PDF copies of each of the presentations.
Issues:
- Detention in UK pending transfer to another Member State;
- Detention in another Member State pending transfer to the UK;
- Risk of detention in another state as grounds for resisting transfer.
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27 October 2017 by Rosalind English
Inquests and Article 2 ECHR – Caroline Cross and Suzanne Lambert
The highlights of the Public Law Seminar given by members of 1 Crown Office Row are now available for podcast download here or from iTunes under Law Pod UK, Episodes 13, 14 and 15. For non-Apple devices the podcasts are available via the Audioboom app.
For ease of reference the following three posts set out the introductions to each of the presentations and the case citations. Click on the heading for PDF copies of each of the presentations.
Introduction
Article 2 ECHR has had a profound impact upon coronial law, no more so than in relation to deaths in custody/detention and mental health deaths.
This talk will cover the following topics: mental health inquests; terrorism inquests (and inquiries); and detention inquests. Through these lenses, we will examine a number of developments in coronial law over the past 18 months and draw out relevant themes.
We discuss a number of cases in relation to mental health and detention inquests.
Case references in podcast
P v Cheshire West and Chester Council [2014] UKSC 19
R (on the application of Ferreira) and HM Senior Coroner for Inner London South, King’s College Hospital NHS Foundation Trust, the Intensive Care Society and the Faculty of Intensive Care Medicine and Secretary of State for Health and Secretary of State for Justice [2017] EWCA Civ 31
Austin v UK (2012) 55 EHRR 359
Tyrrell v HM Senior Coroner County Durham and Darlington [2016] EWHC 1892 (Admin)
R (Tainton) v HM Senior Coroner for Preston and West Lancashire [2016] EWHC 1396 (Admin)
R (Hamilton-Jackson) v Assistant Coroner for Mid Kent and Medway [2016] EWHC 1796 (Admin)
R (Scarff and Ors) v Governor HMP Woodhill and Secretary of State for Justice [2017] EWHC 1194 (Admin)
26 October 2017 by Rosalind English
The first episode from the Public Law Seminar given by members of 1 Crown Office Row is now available for podcast download here or from iTunes under Law Pod UK. Look for Episode 13: Tackling radicalisation through the civil courts.
For non-Apple devices the podcasts are available via the Audioboom app.
For ease of reference the following three posts set out the introductions to each of the presentations and the case citations. Click on the heading for PDF copies of each of the presentations.
Introduction
The Civil Courts have now been involved in cases of radicalisation brought before them by local authorities for very nearly three years (we are approaching the third anniversary of the first case). What was then innovative is now reasonably well-established (see President’s Guidance on Radicalization Cases in the Family Courts (8 October 2015) and the judgment of Hayden J in London Borough of Tower Hamlets v B [2016] EWHC 1707.
Concern was stirred originally by the spectre of significant numbers of people travelling to Syria to demonstrate their support for ISIS or the Al Nusra Front. This problem is not novel as 80 years ago Britain and Ireland were similarly fixated with the problem of volunteers departing for Spain to fight on both sides in the Civil War. A portrayal of the indoctrination of school age children to fight in that war even seeped into popular culture courtesy of Muriel Spark’s novel, The Prime of Miss Jean Brodie. The current situation is complicated by the relative ease of international travel, the tactics and targets used by extremists and the fact that the UK has already experienced domestic terrorism inspired by international examples.
The number of UK nationals travelling to Syria may have fallen but reports in 2016 of significant numbers of youths travelling from Kerala to Syria show that the problem has not fallen away and is truly international.
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22 October 2017 by Rosalind English
ARB v IVF Hammersmith Ltd [2017] EWHC 2438 – read judgment
The claim for over £1 million taken by a father against an IVF clinic for failing to notice that his signature on the consent form had been forged has been widely reported in the press. In the latest Law Pod UK podcast Rosalind English discusses the case with David Prest. Whilst the McFarlane principle defeated the financial claim, Jay J had some stern words to say about the actions of the mother and the procedures of the clinic.
Episode 12 of Law Pod UK is available for free download from iTunes.
11 October 2017 by Rosalind English
Conway, R (On the application of) v The Secretary of State for Justice [2017] EWHC 2447 (Admin) – read judgment
This case concerns the issue of provision of assistance to a person with a serious wasting disease who wishes to commit suicide, so as to be able to exercise control over the time of his death as the disease reaches its final stages. See our previous post on it here and here. It follows a line of cases which have addressed that or similar issues, in particular R (Pretty) v Director of Public Prosecutions [2001] UKHL 61; [2002] 1 AC 800 (“Pretty“), R (Purdy) v Director of Public Prosecutions [2009] UKHL 54; [2010] 1 AC 345 (“Purdy“) and R (Nicklinson) v Ministry of Justice [2014] UKSC 38; [2015] AC 657(“Nicklinson“). Permission to bring this judicial review was granted by the Court of Appeal (McFarlane and Beatson LJJ, see [2017] EWCA Civ 275), having earlier been refused by the Divisional Court (Burnett LJ, Charles and Jay JJ) at [2017] EWHC 640 (Admin
Section 1 of the Suicide Act 1961 abrogated the rule of law whereby it was a crime for a person to commit suicide. In this hearing Mr Conway sought a claim for a declaration of incompatibility pursuant to section 4 of the Human Rights Act 1998 in respect of the prohibition in the criminal law against provision of assistance for a person to commit suicide. That prohibition is contained in section 2 of the Suicide Act 1961.
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1 October 2017 by Rosalind English
XX v Whittington Hospital NHS Trust 2017 EWHC 2318 (QB) (18 September 2017) [HQ15C04535]
Podcast about this case now downloadable
Commercial surrogacy arrangements are considered to be against public policy in the UK and therefore illegal. Surrogacy in the UK is only legal where there is no intention to make a profit – though reasonable expenses are recoverable. Where legal surrogacy is
carried out the surrogate mother is the legal mother of the child. In this case the claimant had suffered injury due to the hospital’s failure to diagnose her cervical cancer in time. She had to undergo chemotherapy and radiation treatment which, amongst other things, damaged her uterus so she was unable to bear and carry a child. Before the treatment she had her eggs frozen.
The hospital admitted negligence. As part of her damages claim she sought the expenses she would incur for a commercial surrogacy arrangement in California. She wished to go to the US since the position of a woman seeking surrogacy in the UK is made more difficult by the fact that commercial arrangements are illegal. This means that in the UK the surrogate chooses the biological mother, rather than the other way around. The lack of certainty over parental status was also cited as a reason why an arrangement in the US would be preferable.
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1 October 2017 by Rosalind English
You may remember the podcast discussion between me, Rosalind English, and David Hart QC earlier in the summer about the NHS decision not to fund the drug Kuvan for the amelioration of symptoms of a boy suffering from phenylketonuria (PKU) and severe autism. The podcast concerned a High Court ruling that the health service should review its decision not to fund the drug Kuvan.
As I mentioned in the original report, the judge did warn the boy’s family against being too optimistic, saying
however much one might hope that on the next occasion the panel will decide that the net additional expenditure of treating S with Kuvan would be justified … they could still lawfully decide to refuse funding.
However, the judge’s caution has not been borne out by events. On Friday 29th September it was reported that NHS England has agreed to provide the drug to treat his PKU, which if left unchecked can lead to complications including brain damage.
Listen to Episode 9 of Law Pod UK, available for download on iTunes
29 September 2017 by Rosalind English
... and pests are misplaced animals. We are all too familiar with the stories of mayhem caused by urban foxes released into the countryside, and the collapse in property value where Japanese knotweed is found to have invaded. The perpetrators of such damage are rarely identified and brought to account. So it is with a level of glee that the prosecution of two “Buddhist activists” has been reported in the media after they released nearly a thousand alien crustaceans off the coast of Brighton.
“Banker” Ni Li and “estate agent” Zhixong Li bought the live American lobsters and Dungeness crabs from a London fish merchant, hired three boats from Brighton Marina and cast the animals adrift as part of a religious ceremony, fangsheng, which is understood to be the cause of many ecosystem disruptions in Asia.
This short story is so replete with topical issues it is hard to know where to begin.
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3 September 2017 by Rosalind English
Clinical Genetics is a field of medicine concerned with the probability of an indvidual’s condition having an hereditary basis. The journal Medical Law International has just published an article about the scope of potential duties of care owed by specialists in this field to people with heritable diseases. The authors draw out the features of genomic medicine that open the door to new liabilities; a potential duty owed by clinicians to third party family members, and another legal relationship that may be drawn between researchers and patients.
Background
There is no legislation on the duties involved in genome sequencing in the United Kingdom, and, in the absence of this, any new legal duties on the part of professionals in clinical genomics need to be established within the common law of negligence. Civil lawyers are familiar with the standard framework for establishing whether a duty of care is owed, based on these three consecutive questions:
- Was the damage was reasonably foreseeable
- Was there was sufficient “proximity” between the claimant and the defendant and
- Would it be fair, just and reasonable to impose a duty: see Lord Bridge of Harwich in Caparo Industries plc v Dickman [1990] 2 AC 605, 617-618
These principles are neat enough as they are laid out but only take us as far as the facts of any particular case, particularly the Caparo test outlined in para (3).
This relatively new field of medical endeavour is unusual in that it is concerned with the management of a family rather than one individual. More generally, in the field of genomic medicine, there is a “close interaction between care and research”, resulting in “the real possibility” that genomics researchers will be found to owe a legal duty to disclose findings to participants.
So we have two new possible avenues of liability here; that of clinicians to third parties, and that of researchers to patients.
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1 September 2017 by Rosalind English
We have just posted a discussion here between 1 Crown Office Row recruit Thomas Beamont and Rosalind English on the reach of Artificial Intelligence into the legal world: click on Episode 10 of our podcast series.
Law Pod UK is freely available for download on iTunes
Related material:
21 August 2017 by Rosalind English
Richard Susskind, IT adviser to the Lord Chief Justice, has spent many years looking into the future of the law. In a fascinating podcast paving the way for his new book The Future of the Professions and the updated Tomorrow’s Lawyers, he discusses with OUP’s George Miller the new world of technological advancements in the day to day management of dispute resolution. We have taken the liberty of summarising the podcast here and posting a link to the interview at the end of this post.
Susskind finds, in comparison with the rest of the English speaking world, that the legal institutions of the UK are in some sort of denial about the march of AI. He maintains that the legal world will change more in twenty years than it has in the past two centuries. If we want to improve access to justice in our society, the answer is in technology. But the law schools have not caught up with this idea.
How do we work out what to do in the face of irreversible and inevitable change in the law? Susskind acknowledges that most people want to pay less for legal services, for something that is less complicated, less combative. It’s not that there’s less legal work to do, there’s more legal work to do, but it’s under cost pressure.
The twenties will be the big decade of change. The age of denial ended in 2016; leaders in law are no longer saying the legal world is going to go back to what it was in 2004-6. But the period from 2016 – 2020 is the area of resourcing, put bluntly, finding cheaper people to do the work by outsourcing, as manufacturing did years ago. Once we’re into the twenties, we’ve arrived in an area Susskind calls the decade of disruption. The challenge to lawyers will be to provide not only one to one services in the traditional way, but to work on systems that one day will replace us. The trusted advisor concept is not fundamental to the legal service. That was limited to the print world. The future of the professions is to imagine other ways in which these problems must be sorted out. When a client has a problem, and they say they want a trusted advisor, what they really want is access to reliable expertise, and this is being worked on in the field of AI. Our technology is becoming more and more capable. Future clients will happily go for that even if they lose the surrounding aura or trappings of a traditional legal advisor.
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18 August 2017 by Rosalind English
SB, R (on the application of NHS England) [2017] EWHC 2000 – read judgment
The High Court has quashed a decision by NHS England refusing to fund the drug Kuvan for a young boy who has a condition inhibiting his ability to digest protein.
This case involves a number of important issues, such as the allocation of resources under the NHS, the extent to which courts may interfere with healthcare choices, and the role of “rights” in these decisions, including the welfare of the child. David Hart QC discusses these issues in detail with Rosalind English in the latest podcast in our Law Pod UK series; here is a brief summary.
The seven-year-old child has severe autism and phenylketonuria (PKU), an inherited metabolic disorder. The mainstay of PKU treatment is a strict dietary regime which restricts the intake of high protein foods. But because of his autism, SB is unable to understand and therefore abide by these food restrictions. Consequently his doctors sought funding for the drug Kuvan (sapropterin dihydrochloride), which would allow him to get a proportion of vitamins and minerals from ordinary food. If he were to respond to the drug, the levels of protein in his blood would fall below the level at which he risked irreversible brain damage. However, his consultant acknowledged that his overall development outcome would mostly be affected by the severity of his autism rather than his PKU and that Kuvan would not be expected to significantly alter or improve his behaviour.
The funding panel accepted that SB fulfilled the conditions for exceptional need but the lack of long-term prospects for improvement meant that his application did not pass the “clinical effectiveness” test.
Andrews J found that this decision was flawed and remitted it for reconsideration, with the caveat that the funding panel may be entitled to continue to decline treatment on different grounds.
Listen to Episode 9 of Law Pod UK, available for download on iTunes
9 August 2017 by Rosalind English
Just posted: Marina Wheeler QC in conversation with Rosalind English about efforts to preempt and limit the influence of extremist materials on children in the family courts. In this interview Marina also discusses the implementation of the government’s counterterrorism “Prevent” strategy against adults who are suspected of starting down a pathway towards terrorism but who have as yet committed no crime. The podcast is now available on iTunes as Episode 8 in our series.
To listen, click on the Law Pod UK banner on the top right hand of the home page. You can access this and other free episodes of Law Pod UK, including David Hart QC on the Brexit Bill and its implications for the environment. Read more about David Hart’s concerns about the potential loss of right to sue for breach of EU law under the rule in Francovich in The Times: https://www.thetimes.co.uk/article/brexit-bill-will-remove-right-to-sue-government-750dhfjj3?shareToken=09ea60e3150edafe920c43e542df0351
4 August 2017 by Rosalind English
Butt v Secretary of State for the Home Department [2017] EWHC (Admin) 26 July 2017 – read judgment
Oliver Sanders and Amelia Walker acted for the Home Secretary in this case. They have nothing to do with the writing of this post.
The High Court has thrown out a number of challenges to the government’s efforts to prevent extremism on university platforms.
In 2015 the Home Office released guidance regarding its initiative to tackle extremism in universities under the Counter-Terrorism and Security Act 2015, CTSA. The press release referred to 70 events on campuses featuring “hate speakers”. The claimant Dr Butt was among six named as “expressing views contrary to British values”.
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