Category: Article 2 | Right to life
27 May 2010 by Rosalind English
The authorities’ statutory power to detain pending deportation had to be motivated purely by the need to remove a subject from the United Kingdom, not to ensure his surrender into custody of the authorities operating in the receiving country. A subject detained not only for the purpose of effecting his removal from the UK, but also for the purpose of investigating whether acceptable arrangements could be made to return him into detention in the receiving country, was being detained unlawfully.
The claimant sought damages and declaratory relief against the defendant both at common law for the tort of false imprisonment and pursuant to s. 6(1) and s.7(1) of the Human Rights Act 1998, by reason of a claimed breach of Article 5(1) of the European Convention of Human Rights.
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20 May 2010 by Rosalind English
If a terminally ill patient has made a “living will”, specifying in advance that they do not want to be resuscitated, doctors must respect these wishes or risk being struck off. The General Medical Council is to announce this guidance in response to the Mental Capacity Act 2005 which gives “living wills” legal status. Doctors must not follow their own personal or religious convictions by prolonging treatment unless there is evidence that a patient may have changed his or her mind.
Update 25/05/10 – The Guidance has been published and can be found here
If a doctor is unwilling to follow the express verbal instructions of a patient – communicated through a friend or relative as legal proxy — they can withdraw from treating the individual. A second medical opinion must sought before hydration and nutrition is withdrawn. Telegraph Medical Correspondent Kate Devlin reports that
Doctors who flouted the guidelines would be forced to attend a fitness to practise hearing before the GMC and would be struck off if the case against them were proved. The rules affect patients deemed to be mentally capable of making these decisions. If they do not have this capacity, or have not designated someone to act on their behalf, doctors are required to make any judgment about treatment in the best interests of the patient. The guidance says that in these cases, when the decision over end of life treatment is “finely balanced”, the patient’s previously stated wishes “will usually be the deciding factor”.
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19 May 2010 by Rosalind English
Abid Naseer, Ahmad Faraz Khan, Shoaib Khan, Abdul Khan and Tariq Ur Rehman (Appellants) v Secretary of State for the Home Department (Respondent), Special Immigration Appeals Commission, 18 May 2010 – Read judgment
Two men suspected of attempting to mount a mass casualty attack can stay in the UK because they risked ill treatment if they were to be sent back to Pakistan. Rosalind English examines whether the extra territoriality reach of Article 3 makes a mockery of the core protections provided by European Convention on Human Rights.
Risk of torture
The alleged operatives appealed against deportation orders/refusals of re-entry on the grounds that they risked ill treatment contrary to Article 3 of the European Convention on Human Rights at the hands of the Pakistani security services. Appeals against deportation were upheld because the reassurances as to the safety of their return was based on evidence that could not be disclosed in open court.
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11 May 2010 by Isabel McArdle
Recent weeks have seen considerable media attention paid to the role of inquests and their increasing significance for relatives of the deceased.
Article 2 of the European Convention on Human Rights, providing legal protection for everyone’s right to life, in some circumstances requires investigation into a death such as an inquest. It places a duty upon the state to ensure the investigation is properly conducted. This may entail providing funding, such as legal aid given to relatives so they may be represented at the hearing.
On 1 May 2010, The Times published “How coroners have become the public voice of grieving relatives” which considered the trend in recent years for coroners to take a role similar to that taken by a chair of a public inquiry. Frances Gibb wrote that David Ridley, a coroner in an inquest for two soldiers killed in Afghanistan, made comments which will give some comfort to grieving relatives. Only two days earlier, another coroner, David Masters, “castigated US authorities’ failure to cooperate in an investigation into the “friendly fire” deaths of three British soldiers”.
The article goes on to note that
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4 May 2010 by Adam Wagner
Savage (Respondent) v South Essex Partnership NHS Foundation Trust (Appellant) [2010] EWHC 865 (QB) – Read judgment
The High Court has ruled that a mental health trust was responsible for the death of a patient who threw herself in front of a train. The judgment marks the end of a long and complex case, and a significant shift in the law relating to public authorities’ responsibility to preserve life under the Human Rights Act. The trust must now pay Mrs Savage’s daughter £10,000 in compensation.
Carol Savage committed suicide on 5 July 2004 at age 50. At the time of her death, she was detained at Runwell Hospital under Section 3 of the Mental Health Act 1983. She had suffered from mental illness intermittently for many years.
After Mrs Savage’s death, her daughter Anna made a claim on the basis that the hospital owed her, as a victim of the death, a duty under the Human Rights Act 1998. The basis of her claim was that the hospital had failed in its duty to protect her mother under Article 2 of the European Convention on Human Rights, the right to life. She also made a claim in her own right under Article 8 (right to family life).
Mental health patients and the right to life
Before making a decision on the liability of the trust, the House of Lords (now the Supreme Court) was asked to decide a preliminary issue relating to it’s responsibility under Article 2 (read decision). The Trust argued that the reasoning in Osman v United Kingdom (23452/94) (1999) 1 FLR 193 ECHR was not applicable to the care of hospital patients. In Osman, the European Court of Human Rights held that there is a positive obligation for a State to take preventive measures to protect individuals whose life is at risk.
The trust argued that applying Osman to mental health care would conflict with other obligations of medical staff to their patients and encourage them to be too restrictive of patients’ liberty for fear that they might commit suicide.
The House of Lords threw out the Trust’s appeal. They held that Article 2 put health authorities under an overarching obligation to protect the lives of their patients. If members of staff know, or are in a position to know, that a particular patient presented a real and immediate risk of suicide, there as an additional “operational” obligation to do all that could reasonably be expected to prevent such an eventuality.
End of the saga
The case has now finally concluded, with Mr Justice Mackay finding that the trust could and should have done more to protect Mrs Savage. He said “all that was required to give her a real prospect or substantial chance of survival was the imposition of a raised level of observations, which would not have been an unreasonable or unduly onerous step to require of the defendant…”
Read more:
- A note by Philip Havers QC on the 2008 House of Lords judgment.
- See below (after the page break) for commentary on the House of Lords case by Rosalind English
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14 April 2010 by Adam Wagner
Humberstone, R (on the application of) v Legal Services Commission [2010] EWHC 760 (Admin) (13 April 2010)
Read judgment
It would seem that legal aid is the topic of the day. Mr Justice Hickinbottom in the High Court has quashed the decision of the Legal Services Commission (LSC) not to grant an applicant for Judicial Review, Mrs Humberson, legal aid for representation at the inquest enquiring into the death of her son, Dante Lee Kamara. The judge took the opportunity set out five criteria which the LSC should apply when considering future applications (listed after the page break below).
Dante died in hospital on 1 July 2008 after an asthma attack. He was aged 10. The judge criticised the LSC’s decision not to grant funding to his mother, saying:
95. I regard the failure of the Commission to take into account the true nature and seriousness of the allegations Miss Humberstone faces at the inquest as a particularly serious defect in the decision making process: one reason why this case is unusual and essentially exceptional is because of the serious allegations Miss Humberstone faces, at the instigation of the agents of state who, she suspects, may have caused or contributed to her son’s death. This case does not open up any floodgate. I do not demur from the view in the Lord Chancellor’s Guidance, which itself reflects comments in Khan, that “in the overwhelming majority of cases the coroner would be able to conduct an effective judicial investigation himself without there being any need for the family of the deceased to be represented” (paragraph 27.4.7 of the Funding Code, quoted at paragraph 37 above). Given the nature of an inquest, and the specialist nature of coroners, that must be so.
Article 2(1) of the European Convention on Human Rights provides: “Everyone’s right to life shall be protected by law“. That primary obligation includes not only a duty on the state not to take life, but also a duty on the agents of the state to take appropriate legislative and administrative steps to protect individuals from threats to life when in their care. This also encompasses a duty, in some circumstances, to investigate a death, and if necessary, provide funding so that the investigation, including an inquest, functions properly.
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6 April 2010 by Guest Contributor
Lord Goldsmith
Sir William Gage, the Chairman of the Baha Mousa Public Inquiry, has refused an application by participants in the Inquiry to compel the Ministry of Defence (MoD) to disclose advice produced by the former Attorney General, Lord Goldsmith.
The MoD claimed legal professional privilege in respect of the Attorney-General’s Advice of 2003 on the application of the European Convention of Human Rights (ECHR) to the British Army’s operations in Iraq during the Iraq war.
The Inquiry, which has been ongoing since July 2009, aims to investigate and report on the circumstances surrounding the death of Baha Mousa by the British Army and the treatment of those detained with him, in particular where responsibility lay for approving the practice of conditioning detainees by any members of the 1st Battalion, The Queen’s Lancashire Regiment in Iraq in 2003.
Read more:
- You can read the Chairman’s full Ruling here.
- Read coverage in The Times
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16 March 2010 by Rosalind English
Colonel Richard Kemp, former Commander of British Forces in Afghanistan, has written in the Times that lawyers have no place on the battlefield. He said: “In the heat of battle, a commander can’t worry about the Human Rights Act. It would make war impossible”
- Read the full article here.
- Read our previous post on this topic here
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16 March 2010 by Adam Wagner
Private Jason Smith
The case of R (on the application of Smith) (FC) (Respondent) v Secretary of State for Defence (Appellant) and another is being heard today in the Supreme Court.
The Secretary of State is appealing the 2009 decision of the Court of Appeal: See our case comment from the Court of Appeal judgment.
In short, the respondent’s son Smith was a member of the Territorial Army who had been posted to Iraq in June 2003. He had spent eight days in Kuwait for the purpose of acclimatisation. The room he occupied in Iraq did not have air conditioning. In August 2003 temperatures in the shade reached in excess of 50 degrees C, which was the maximum that available thermometers could measure. He reported sick complaining that he could not stand the heat. Some days later he suffered a cardiac arrest.
In this appeal the secretary of state appeals against the decision of the Court of Appeal ([2009] EWCA Civ 441) that the deceased had been within the jurisdiction of the United Kingdom for the purposes of the Article 1 of the European Convention on Human Rights 1950 and the Human Rights Act 1998 and that, consequently, the inquest into his death had to comply with Article 2.
The hearing is expected to last for four days. See coverage in The Times and the The Guardian.
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25 February 2010 by Adam Wagner
Debbie Purdy
The Director of Public Prosecutions has published the long awaited Crown Prosecution Service guidance on assisted suicide, following the judgment of the House of Lords in the Debbie Purdy case. The DPP website says:
The public can have full confidence in the policy the CPS will follow in deciding whether or not to prosecute cases of assisted suicide, Keir Starmer QC, Director of Public Prosecutions, said today.
Mr Starmer published the policy after taking account of thousands of responses received as part of what is believed to be the most extensive snapshot of public opinion on assisted suicide since the Suicide Act 1961 was introduced. Nearly 5,000 responses were received by the Crown Prosecution Service (CPS) following the consultation exercise launched in September.
Mr Starmer said: “The policy is now more focused on the motivation of the suspect rather than the characteristics of the victim. The policy does not change the law on assisted suicide. It does not open the door for euthanasia. It does not override the will of Parliament. What it does is to provide a clear framework for prosecutors to decide which cases should proceed to court and which should not.
Click here to read the CPS guidance and here to read a summary of the Purdy case. See also the Dianne Pretty case.
Update – 26 Feb 2010: Commentary on the guidance from the Guardian and The Times
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