Category: Article 8 | Right to Privacy / Family
9 October 2026 by Lance Baynham
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The following piece was also posted here on 1 Crown Office Row’s Quarterly Medical Law Review
Birmingham Community Healthcare NHS Trust v Ibrahim [2026] EWHC 2468 (KB)
In Ibrahim, Mr Justice Soole upheld a Judge’s decision that the Defendant Trust had breached the Claimant’s rights under Article 14 of the European Convention of Human Rights (‘ECHR’) when it failed to adopt an alternative procedure for dispensing Codeine outside of daylight hours during Ramadan in 2019. In reality, the Trust’s arguments were completely undermined by the fact that no one had actually thought about the issue at the time.
Background
The Claimant was a Muslim prisoner. The Trust was responsible for providing primary healthcare at the prison. The Claimant was prescribed Codeine. This was provided each day under supervision at a medicine hatch. The hatch operated during fixed hours each morning and afternoon. Generally, there was no system for providing medication under supervision outside those hours. There were, however, separate arrangements in certain other circumstances, such as prisoners arriving at the prison late in the evening.
Unless exempt, Muslims are required to fast during daylight hours throughout the month of Ramadan. This includes not consuming oral medication. In 2019, the hatch opening times were during daylight hours. The arrangements ultimately put in place by the Trust were that the Claimant was temporarily prescribed alternative painkillers during Ramadan which he was permitted to take in his cell, rather than under supervision at the hatch. The Judge found as fact that the temporary use of these alternative painkillers had no adverse impact on the Claimant.
The claims were for an unlawful interference with the right to respect for private life under Article 8 ECHR; an unlawful interference with the right to manifest religious beliefs under Article 9 ECHR; and unlawful discrimination on the grounds of religion in violation of Article 14 ECHR, when read with Articles 8 and 9 ECHR. It is unclear why no discrimination claim was brought under the Equality Act 2010.
Judgment below
His Honour Judge Najib held that Articles 8 and 9 ECHR were engaged but not violated. The Claimant was able to and in fact did fast throughout Ramadan. He was provided with alternative medication which, ultimately, had no adverse effect. There was no challenge to these findings on appeal.
However, the Judge also held that there was a breach of Article 14 ECHR. He identified the questions to be asked as set out by Baroness Hale in R (Stott) v Secretary of State for Justice [2018] UKSC 59 at [207]:
- does the treatment complained of fall within the ambit of one of the Convention rights;
- is that treatment on the ground of some “status”;
- is the situation of the claimant analogous to that of some other person who has been treated differently; and
- is the difference justified, in the sense that it is a proportionate means of achieving a legitimate aim?
Question two was not disputed: the ground was religion. On the other issues, the Judge held that: i) the treatment complained of fell within the ambit of Articles 8 and 9 ECHR – there was a “more than merely tenuous connection” [39]; ii) the Claimant’s situation was analogous to other prisoners who had been prescribed medication which could only be taken under supervision [51]; and iii) the failure to put in place alternative arrangements was not in pursuit of the legitimate aim of ensuring security and preventing the proliferation of opiate based and other controlled substances [68], but was instead due to an ‘apparent’ lack of resources and/or a need to prioritise limited resources [69] which was not made out on the facts [76]. As such, the Article 14 ECHR claim succeeded.
Appeal
The Trust’s appeal challenged the Judge’s conclusions on ‘ambit’ and ‘objective justification’ – i.e., the first and fourth of the Stott questions.
As to the ambit issue, the challenge “centred on the Judge’s finding of fact that Mr Ibrahim had not suffered withdrawal or any other adverse symptoms in consequence of not taking Codeine” [80]. Soole J rejected this argument for the following three reasons: firstly, ‘ambit’ and ‘interference’ are separate concepts – treatment can come within the ambit of an ECHR right even if that right is not violated [89]; secondly, the appropriate test is “whether the criticised measure or treatment has a more than merely tenuous connection to the core value(s) of a substantive Article” (emphasis added) [90]; and, thirdly, it is not necessary, for ‘ambit’ purposes, to establish that the relevant treatment had an adverse effect and the Judge was right to focus on the connection between the treatment complained of and the substantive ECHR rights [91]-[92].
The more substantial challenge was to the conclusion on objective justification. The Trust’s arguments all centred on the allocation of resources – that the Judge “failed to identify the allocation of scarce resources as a legitimate aim; and thus failed to take resources into account when considering proportionality” [105]. Moreover, to the extent that the Judge did consider the allocation of resources, he wrongly held that the Trust’s evidence that alternative procedures would have been impractical amounted to no more than a ‘bare assertion’ [97].
In rejecting these arguments, Soole J first sounded a warning against “the dangers of undue textual criticism” in the context of a necessarily lengthy judgment [106]. Giving a fair reading to the judgment as a whole, Soole J held that the Judge had indeed considered the allocation of resources. His rejection of this issue was based not on principle, but on the facts.
The reality was that no one had in fact turned their mind to the possibility of providing the Claimant with his medication by some alternative procedure. The evidence of Trust witnesses on resources and practicality “did not reflect the actual reasoning of anyone at the time”, but simply their beliefs that it would have been difficult if anyone had thought about it. This belief was itself “undermined” by the fact that alternative arrangements were made in other situations, e.g., for prisoners arriving at the prison late. In such circumstances, the Judge was entitled to conclude that the Trust’s evidence amounted to a ‘bare assertion’ and, in fact, it was “difficult to see how the Judge could have reached any other conclusion” [114].
It followed from this central finding that the resources had not formed any part of the Trust’s aim in not making alternative arrangements for the Claimant. As such, it was not necessary to consider proportionality but, had it been, the same finding of fact “would or should equally have compelled the conclusion that the test of proportionality was not met” [125].
Comment
There are some useful illustrations of principle in Soole J’s judgment, particularly on the ‘ambit’ issue. Firstly, that the appropriate test is whether the criticised measure or treatment has a “more than merely tenuous connection” to the core value(s) of a substantive ECHR Article. Secondly, that it is not necessary to establish that the relevant treatment had any adverse effect.
However, this was a case where “the very particular facts and circumstances” [126] carried the day. In some ways, this counted against the Claimant. The Article 8 and 9 ECHR claims were dismissed on the basis that the Claimant had been able to fast and did not experience any real issues as a result of temporarily not taking Codeine or having to take an alternative painkiller. The position would inevitably be very different if a Muslim prisoner was receiving some other medication such that this would have been a problem – i.e., so that they would effectively need to choose between their religion and their health.
The central finding of fact though was the “overall failure by anyone to apply their mind to [the issue]” [118]. The practical lesson for institutions is that it will be very difficult to justify discriminatory treatment as a proportionate means of achieving a legitimate aim, if the legitimate aim has been retrospectively manufactured. Before the question of whether issues of practicality and resources might amount to a legitimate aim in principle, there is the preliminary question of whether such issues were in fact the reason for the discriminatory treatment. If, in reality, the reason was simply that no one thought about it, then evidence of hypothetical impracticality or resource constraints is unlikely to carry much weight. Had the Trust taken even some perfunctory steps to investigate whether alternative arrangements would have been feasible, it seems likely that it would have been given a reasonably wide margin of appreciation. However, having taken none, it was “in an inherently weak position on its margin of appreciation” [121]. A further practical point is that, where a claim relates to a failure to make an exception, then other exceptions – such as for late-arriving prisoners in this case – are likely to carry significant weight and will need to be carefully explained.
Lance Baynham is a barrister at 1 Crown Office Row.
21 August 2026 by Guest Contributor
The UK Human Rights Blog is moving to Substack.
From 19th October, all new articles will be published exclusively on our Substack, and no new content will appear on our current website.
To stay up to date with our latest articles and insights, please subscribe here: https://substack.com/@ukhumanrightsblog
Secretary of State for the Home Department v Hirtie [2026] EWCA Civ 1000, handed down by the Court of Appeal on 30 July 2026, is a deportation appeal that turns less on the substance of Article 8 than on procedural discipline: whether a party who unequivocally withdraws a ground of appeal before the Upper Tribunal (”UT”) can resurrect it before the Court of Appeal. The Court’s answer, delivered by Stuart-Smith LJ, was a firm no, reinforcing a growing body of authority requiring parties to identify and narrow the issues in dispute at the earliest opportunity.
Background
Mr Hirtie, a Romanian national, was convicted of section 18 wounding with intent (the most serious form of assault) and sentenced to 39 months’ imprisonment, making him a “foreign criminal” under section 32 of the UK Borders Act 2007 and liable to automatic deportation.
The Secretary of State (”SSHD”) rejected his human rights claim in September 2023, finding that neither exception to deportation under section 117C of the Nationality, Immigration and Asylum Act 2002 applied and that there were no “very compelling circumstances” outweighing the public interest in removal.
The decision letter was structured throughout on the assumption that Mr Hirtie’s partner and children would remain in the United Kingdom following his deportation — the “stay” scenario. As Hirtie records at §13: “The structure of the SSHD’s reasoning is clear beyond argument: the possibility of Mr Hirtie’s partner and children going to live in Romania was simply not in issue.”
The route through the tribunals
Mr Hirtie’s skeleton argument before the First-tier Tribunal (“FtT”) expressly identified the “go” scenario as a matter not in dispute, and the SSHD never contradicted this. The FtT allowed the appeal, finding that separation from Mr Hirtie would have a “profound” impact on his partner — going “beyond undue hardship” — given her traumatic history of losing her parents young and being raised in an orphanage, and that this amounted to “very compelling circumstances” under section 117C(6).
On appeal to the UT, the SSHD raised the “go” scenario for the first time as Ground 1, drafted in terms the presiding judge, UTJ O’Callaghan, considered misleading. Hirtie records at §31: “The end result was that the Senior Presenting Officer who was appearing for the SSHD agreed that Ground 1 … should be withdrawn. The withdrawal was unequivocal, albeit in the face of a heavy judicial headwind.” The UT went on to reject the SSHD’s remaining ground and upheld the FtT’s decision.
Reviving a withdrawn ground
Before the Court of Appeal, the SSHD sought to resurrect the “go” scenario, arguing that section 117A(2)(b) of the 2002 Act obliged the tribunal to consider it regardless of whether either party had raised it. Warby LJ, granting permission, deliberately left open whether a party could revive an argument withdrawn below.
Stuart-Smith LJ rejected the attempt at §52: “She had been properly represented before the UT and was not forced to withdraw the ground. No good reason was offered for resurrecting it on appeal.”
Applying Singh v Dass [2019] EWCA Civ 360, decided 7 March 2019, the Court set out the governing test for admitting a new point on appeal. Haddon-Cave LJ held at §16-17 of that case: “An appellate court will be cautious about allowing a new point to be raised on appeal that was not raised before the first instance court… An appellate court will not, generally, permit a new point to be raised on appeal if that point is such that either (a) it would necessitate new evidence or (b), had it been run below, it would have resulted in the trial being conducted differently with regards to the evidence at the trial.”
Applying this in Hirtie, the Court held at §53 that admitting the “go” scenario would require fresh evidence about relocation difficulties, that the FtT hearing would have unfolded differently had the issue been live, and that this was not a pure point of law the Court of Appeal could resolve without remittal.
The deeper procedural principle
More fundamentally, the Court held that allowing the SSHD to raise the “go” scenario now would conflict with the case-management philosophy established in Lata (FtT: Principal Controversial Issues) [2023] UKUT 163 (IAC), decided 23 June 2023, and endorsed by the Court of Appeal in AL v Secretary of State for the Home Department [2026] EWCA Civ 370, handed down 31 March 2026.
Lata’s headnote states at point 4: “It is a misconception that it is sufficient for a party to be silent upon, or not make an express consideration as to, an issue for a burden to then be placed upon a judge to consider all potential issues that may favourably arise, even if not expressly relied upon.”
In AL, Elisabeth Laing LJ endorsed this approach, explaining at §78 that upon proper engagement with the appeal skeleton process “a judge sitting in the First-tier Tribunal can properly expect clarity as to the remaining issues between the parties by the date of the substantive hearing.” She further held, applying the narrow Robinson-obvious exception (from R (Robinson) v Secretary of State for the Home Department [1998] QB 929), that a decision cannot be criticised for failing to address an issue neither party raised, unless it was “a point which has strong prospects of success if it is argued. Nothing less will do” (Robinson at 946B-D, cited in AL at §68).
Hirtie held at §54-55 that the SSHD was not exempt from this obligation. Having omitted any reasoned discussion of relocation difficulties from the decision letter, and having failed to challenge Mr Hirtie’s skeleton assertion that the “go” scenario was not in dispute, her silence was, per Stuart-Smith LJ, “consistent with the issue not forming part of her decision-making process and not being in dispute between the parties.”
The “very compelling circumstances” ground
The SSHD’s second ground argued that the FtT’s finding of “very compelling circumstances” was legally flawed, inadequately reasoned, and perverse — partly because the judge did not expressly cite section 117C, and partly for want of expert medical evidence about the partner’s mental health.
The Court disagreed. At §62-63, Stuart-Smith LJ held that although the FtT judge did not set out section 117C verbatim, he plainly understood and applied the correct “very high bar,” relying on Ali v Secretary of State for the Home Department [2016] UKSC 60, decided 16 November 2016 (also cited as Hesham Ali), for the proposition that the public interest in deporting foreign criminals must be accorded very significant weight. The absence of a concluding checklist recapping the relevant factors was immaterial (§64).
On perversity, the FtT judge had found the partner and Mr Hirtie’s brother “honest and credible” witnesses giving “sincere and heartfelt evidence” (§66-67), and the Court held that FtT judges are entitled to make findings about the psychological impact of separation on the basis of accepted witness evidence alone, without corroborating expert medical evidence. The judge’s conclusion, reached “by a narrow margin,” was nonetheless sufficient to withstand appellate scrutiny (§68).
Comment
Hirtie offers several practical lessons for immigration and public law practitioners handling deportation and Article 8 appeals:
- Withdrawal is generally final. A party that unequivocally withdraws a ground before the UT, while properly represented and without compulsion, should not expect the Court of Appeal to allow its resurrection absent compelling justification (Hirtie at §52).
- Case-management discipline applies to the Secretary of State too. Lata and AL are not confined to appellants; the SSHD is equally bound to identify and narrow issues at the earliest stage (Hirtie at §55).
- Silence has consequences. Failing to engage with an opponent’s stated “matters not in dispute” will be treated as acceptance, not oversight (Lata headnote, point 4).
- New points face a high bar. Singh v Dass remains the touchstone: a new point requiring fresh evidence, or one that would have changed how the hearing below was conducted, will not be entertained on appeal (Singh at §16-17).
- The FtT’s reasoning need not be exhaustive. Provided the tribunal identifies and applies the correct legal test in substance, a judgment will not be struck down merely for lacking a concluding checklist (Hirtie at §64).
- Witness credibility can suffice without expert evidence. Findings about the psychological impact of separation may properly rest on accepted witness testimony alone (Hirtie at §67).
The case is a useful, moderately short illustration of how tightly the appellate courts are now enforcing the “principal controversial issues” discipline established in Lata — a discipline that applies as much to the Home Office as to any other litigant.
Matthew Howarth is a barrister at 1 Crown Office Row.
5 August 2026 by Guest Contributor
By Matthew Howarth
In R (Al Hashimi) v Secretary of State for the Home Department [2026] EWCA Civ 943, the Court of Appeal held that a woman living in the United Arab Emirates could not invoke Articles 8 and 14 of the European Convention on Human Rights (“ECHR”) to challenge sex discrimination in UK nationality legislation. The preliminary obstacle was Article 1: she was not within the United Kingdom’s jurisdiction for Convention purposes (§1).
The decision is a clear restatement of the territorial limits on the ECHR. A decision taken in the UK, even one that substantially affects the interests of a person abroad, does not itself establish jurisdiction over that person (§§28-29, 39).
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9 April 2026 by Guest Contributor
By Emily Higlett and Sophia Pascoe
Introduction
The Court of Appeal in Re J, Re M and Re P (Parental Responsibility) [2026] EWCA Civ 344 has provided authoritative guidance on a fundamental question in family law: whether a person who is not a child’s biological father can acquire parental responsibility by being named on the birth certificate. The court firmly answered that question in the negative, clarifying the meaning of “father” under the Children Act 1989 and resolving a line of inconsistent first instance decisions.
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24 March 2026 by Guest Contributor
By Kian Leong Tan
INTRODUCTION
In R (Ansari) v Chief Constable of North Wales Police [2026] EWHC 472 (Admin), the High Court (Chamberlain J) held that the heightened level of disclosure required under Secretary of State for the Home Department v AF (No. 3) [2009] UKHL 28 (“AF-disclosure”) does not apply in a challenge to the seizure, download, retention and inspection of the contents of a person’s mobile phone by an examining officer pursuant to Schedule 7 of the Terrorism Act 2000 (“TA 2000“).
In addition to undertaking a comprehensive review of the AF-disclosure case law, Chamberlain J also rejected the notion of some form of an intermediate level of disclosure in closed material proceedings, where the AF-disclosure threshold is not met. The decision offers some much-needed clarity in this area of law.
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5 March 2026 by Guest Contributor
By Kian Leong Tan
INTRODUCTION
In Medmoune v France App no 55026/22 (ECHR, 5 February 2026), the Fifth Section of the European Court of Human Rights considered the extent of a Member State’s obligation under Art. 2 ECHR (the right to life) when deciding to withdraw life support, in circumstances where the patient had explicitly asked for it to be continued.[1] The judgment helpfully illustrates the contentious boundary at which informed patient consent must give way to the expert opinion of medical professionals.
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3 March 2026 by Guest Contributor
By Georgina Pein
In a recent judgment, the High Court in AAA v Human Fertilisation and Embryology Authority [2026] EWHC 317 (Fam) (Morgan J) heard 15 applications from fertility clinic patients for declaratory relief. Those patients (the “Applicants”) had embryos or gametes which were stored at various fertility clinics. They sought declarations that it was lawful for those gametes or embryos to continue to be stored and used in circumstances where their written consent to storage had expired and had not been renewed (within the timeframes provided by legislation for renewal of consent).
Morgan J found that there were relevant administrative failures and oversights on behalf of the fertility clinics, and relief was granted in relation to 14 out of the 15 applications.
The Human Fertilisation and Embryology Authority (“HFEA”), the fertility clinics, and the Secretary of State for Health and Social Care (“SSHSC”) were Interested Parties to the applications.
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28 February 2026 by Jasper Gold
How should the Legal Aid Agency (LAA) respond when a person with anorexia, which has had a “severe and debilitating impact on her physical and mental health” for a long time, applies for legal aid to assist her with making an application to the Home Office for permission for her medical team to treat her with psilocybin (the main psychoactive component in various mushrooms commonly referred to as magic mushrooms)?
In R (EB) v Director of Legal Aid Casework [2026] EWHC 402, the High Court considered a challenge to the LAA’s refusal of legal aid for exactly that purpose. The Claimant had been a participant in a clinical trial at Imperial College London (a global leader in psychedelic research, and had found the treatment highly effective with no side effects ([4]). Psilocybin, though, is a controlled drug, and cannot be used even medically without authorisation from the Home Secretary under Section 5 of the Misuse of Drugs Regulations 2001 (the Regulations), which is far from straightforward.
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10 December 2025 by Guest Contributor
By Samuel Talalay
Introduction
In its judgment in the case of IA & Ors v Secretary of State for the Home Department [2025] EWCA Civ 1516, handed down on 26 November 2025, the Court of Appeal reaffirmed the correct test for establishing the existence of family life between non-core family members under Article 8 of the European Convention on Human rights (“ECHR”). It also clarified the proper conceptual framework for considering the subtle interaction between the rights of non-claimant family members and the UK’s Convention obligations to individuals outside its territory. Finally, it emphasised the centrality of the Government’s immigration policy to any exercise considering the proportionality of an interference with an individual’s Article 8 rights in the immigration context.
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10 November 2025 by Guest Contributor
By Emily Higlett
Introduction
The Court of Appeal in Re D has overturned final care and placement orders made at an Issues Resolution Hearing (“IRH”), stating that judges must give clear, reasoned findings on the threshold criteria under section 31(2) Children Act 1989 (“CA 1989”), even where proceedings are uncontested or parents are absent.
In delivering the judgment, Cobb LJ, with whom Baker LJ and Miles LJ agreed, criticised the short form reasoning used by the Family Court and stressed the need for transparent judicial decision-making when the State intervenes in family life under Article 8 of the European Convention on Human Rights (“ECHR”).
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25 August 2025 by Alice Kuzmenko
EBB and others v The Gorse Academies Trust [2025] EWHC 1983 (Admin)
In EBB and others v The Gorse Academies Trust [2025] EWHC 1983 (Admin), the Honourable Mrs Justice Collins Rice gave judgment in a multi-faceted, rolled-up permission and judicial review hearing concerning three high school students’ experiences of being disciplined within their school (“the School”).
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18 August 2025 by Guest Contributor
Shvidler v Secretary of State for Foreign, Commonwealth and Development Affairs and Dalston Projects Ltd and others v Secretary of State for Transport [2025] UKSC 30
By Talia Zybutz
Introduction
These appeals – Shvidler v Secretary of State for Foreign, Commonwealth and Development Affairs and Dalston Projects Ltd v Secretary of State for Transport – were a test case for the operation of the UK’s sanctions regime introduced in response to Russia’s invasion of Ukraine.
The Supreme Court confirmed that while the court’s task is to assess proportionality for itself, a wide margin of appreciation will be afforded to the executive in judging how best to respond to and restrain Russia’s actions in Ukraine.
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27 June 2025 by Guest Contributor
By guest contributor Saira Turner
In U3 (AP) v Secretary of State for the Home Department [2025] UKSC 19, the Supreme Court has unanimously dismissed an appeal against a decision taken by the Special Immigration Appeals Commission (“SIAC”) relating to deprivation of citizenship and refusal of entry clearance on the basis of national security concerns.
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11 July 2024 by Guest Contributor
Introduction
The applicant in the ECtHR case of Karsai v Hungary, Mr Karsai, a 47-year-old human-rights lawyer who lives in Budapest, was diagnosed in 2022 with amyotrophic lateral sclerosis (ALS) – a neurodegenerative disease that causes a progressive loss of motor neuron function leaving the patient completely paralysed, while preserving intellectual function. Mr Karsai maintains that “he will be “imprisoned in his own body without any prospect of release apart from death” and his existence will consist almost exclusively of pain and suffering” (§14). Mr Karsai applied to the ECtHR arguing that the prohibition on assisted dying under Hungarian law violated his right to private life (art. 8 ECHR); the applicant also complained the violation of his right to private life in conjunction of his right not to be discriminated against (art. 14 ECHR) because the Hungarian law offers the option of withdrawal of invasive medical treatments (and, hence, hasten their death) only to terminally ill patients who are dependent on them.
Article 8
Regarding the potential violation of the applicant’s right to privacy, his primary argument centres on his desire to control the timing of his death. Due to his medical condition, he is condemned to a life of physical incapacity, pain, and existential dread. The applicant dismisses palliative care as a viable option: “While palliative care could provide relief with respect to certain aspects of his physical suffering, it could not provide relief from the experience of existential dread” (§91). Instead, he focuses on the fact that he cannot avail himself of assisted suicide provisions either in Hungary or abroad. Hungarian law prohibits assisting a patient in procuring their death, and even those aiding with arrangements for this purpose can face prosecution (§§135; 159).
The Court observed that, due to the lack of a uniform consensus among member states on assisted dying practices, each state is granted a considerable margin of appreciation in implementing policies on such sensitive issues. The court also noted, as the recent case of Mortier v. Belgium held, that the right to life (art. 2 ECHR) does not inherently exclude the decriminalisation of assisted dying. However, this decriminalisation must be accompanied by safeguards to prevent abuses of the right to life (§§126-128; 145).
The Court, finding no violation of art. 8, held that Mr Kasai’s suffering could not dismissed lightly. It noted that the applicant’s complaint mainly focused on “existential suffering” that “although it amounts to genuine and severe anguish, existential suffering relates essentially to a personal experience, which may be susceptible to change and does not lend itself to a straightforward objective assessment” (§158). Furthermore, the Court acknowledged that “existential suffering may be refractory to medical treatment […] and that the use of sedation to alleviate it might be contested or unwarranted in certain situations […]” (§157). Professor Aubry, one of the experts consulted by the Court, emphasised two key points. First, he noted that patients suffering from the same condition as the applicant often exhibit ambivalence about their desire to die as the disease progresses. Second, he underscored the importance of palliative care for individuals affected by ALS, particularly in advanced stages, when they are typically permitted to receive palliative deep sedation and can die peacefully (§46).
Article 14
Regarding the violation of art. 8 ECHR and art. 14 ECHR the Mr Karsai argued that “Hungarian law accorded different treatment to those terminally ill persons with mental capacity who suffered from refractory symptoms but could hasten their death only by means of PAD [physician assisted dying], and those who could do so by having recourse to RWI [refusal or withdrawal of life-sustaining interventions” (§170).
In this case the Court held that the applicant’s clinical picture could not be compared to that of terminally ill patients who depend on life-sustaining medical treatments (§174). In fact, Mr Kasai’s diagnosis might lead to invasive life-sustaining interventions only towards the latest stages of his degenerative illness. Furthermore, the withholding or withdrawing of unwanted medical treatments falls within the right to informed medical consent and it is subjected to specific guidelines and safeguards in order to protect the patient’s autonomy (§175).
According to Professor Sandor, who produced an expert opinion for the Court, the right to informed consent is paramount in bioethics. On the other hand, “patients could refuse care, but could not ask for something specific” (§56). For these reasons the Court held that there has been no violation of art. 14 in conjunction with art. 8 of the Convention.
Separate opinions
Two judges’ separate opinions provide an opportunity to delve deeper into the reasoning of the Court’s majority, as they both address the fundamental principles underlying the final decision. Judge Wojtyczek in his separate concurring opinion disagreed with the majority that the applicant’s request to have access to physician assisted dying would fall under his right to respect his private life. The judge emphasised how the right to life – as the practical and effective basis for the enjoyment of all other rights – may hardly “encompass decisions about one’s own life and death” and for this reason, the right to private life, should not extend to the choice of death (§4, Judge Wojtyczek partly concurring, partly dissenting opinion). He noted that the suffering stemming from a personal feeling in relation to the absence of meaning of life may be exacerbated (or not properly tackled) if people can choose their own death.
Judge Felici, dissenting on both accounts with the Court’s majority, firstly emphasised his impression that “the applicant’s legitimate concerns were not taken into account, and that his legitimate request for help fell on deaf ears” (§7, Judge Felici dissenting opinion). In fact, according to Judge Felici, palliative care could not be considered a feasible option to ease the applicant’s suffering since “the expert consulted have indicated that there is currently no medical treatment capable of alleviating existential suffering” (§9, Judge Felici dissenting opinion, my emphasis). In other words, the dissenting Judge stressed an evident reality: so far medicine has not been able to offer a cure to the sentiment that life has lost its meaning. And, for this reason, assisted dying is envisaged as the only possible answer to the applicant existential cry for help. Consequently, the dissenting judge finds that the impossibility for the applicant to avail himself of assisted dying provisions both in his country and abroad would breach his right to privacy enshrined by art. 8 of the Convention.
Specifically, Hungary – compared to other member states which permit assisted dying or are paying great attention on the matter – would have failed to address the severe suffering of the applicant (§5, Judge Felici dissenting opinion). Therefore, Judge Felici dissented that in this instance the margin of appreciation doctrine (which applies on sensitive matters where there is no uniform agreement) should not be invoked. Giving that, “there are no insurmountable legal obstacles to affirming a positive obligation on the part of the State, having regard to all the characteristics of this case, in relation to the application of Article 8 of the Convention” (§6, Judge Felici dissenting opinion).
Secondly, the Judge disagreed with the Court majority’s decision according to which the applicant’s medical condition should be considered similar to the one endured by terminally-ill patients subjected to invasive life-sustaining medical treatments since Mr Kasai’s condition has made him dependant on others for all his personal needs. Hence Judge Felici argued that “the subordination of the decision to take one’s life to whether one is dependent on life-saving treatment represents an unnecessary reduction of the protection of the right to life and an interference in private life, understood as the individual’s capacity for self-determination” (§13, Judge Felici dissenting opinion).
Dr Ilaria Bertini is a Research Fellow at BIOS Centre
30 November 2022 by Ruby Turok-Squire
In the News…
The Supreme Court has ruled unanimously that the Scottish parliament does not have the power to pass legislation that would allow for a second referendum on Scottish independence. Such legislation, the Supreme Court found, would touch on ‘reserved matters’, that is, matters affecting the United Kingdom as a whole. The Scottish government unsuccessfully argued that a referendum would be advisory, and as it would not have immediate impact on the existence of the UK, would not touch on reserved matters. Sturgeon, while respecting the ruling, commented that it confirmed that the UK can no longer be pictured as a voluntary partnership and noted that the next general election could serve as a ‘de facto referendum’.
Nurses are preparing to strike for the first time on the 15th and 20th of December. The issues in question include low pay and unsafe staffing levels. The Royal College of Nursing (RCN) has reported that experienced nurses are 20% worse off in real terms than in 2010, due to many pay increases below the rate of inflation, and that 25,000 nursing staff have left the Nursing and Midwifery Council register since last year. If ministers continue to refuse to engage in formal negotiations with the RCN, the strikes will go ahead across England, Wales and Northern Ireland, and are expected to have a severe impact on care.
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