Category: Medical


Court of Appeal upholds ‘acoustic shock’ and Lord Sumption’s comments on assisted suicide- the Round Up

22 April 2019 by

Conor Monighan brings us the latest updates in human rights law

L Sumption

Credit: The Guardian

In the News:

Lord Sumption, the recently retired Supreme Court judge, has suggested that the law on assisted suicide ought to be broken.

Lord Sumption said that whilst assisted suicide should continue to be criminalised, relatives of terminally ill patients should follow their conscience and not always abide by it. As he put it, “the law should be broken from time to time”.

The former judge argued that the law’s current position helps prevent abuse, and that any change to it could only be produced by a political process.

His comments were made as part of the Reith Lectures, a series of annual radio lectures on BBC Radio 4. Lord Sumption’s lectures ask whether the legal process has begun to usurp the legislative function of Parliament. His first lecture will be made available on the 21st May.

 

In Other News….

  • Research has revealed that 55,000 pupils have changed schools for no clear reason during the past five years. A report from the Education Policy Institute suggests some schools have been unofficially excluding students with challenging behaviour or poor academic results, as part of a practice known as “off-rolling”. One in 12 pupils who began education in 2012 and finished in 2017 were removed at some stage for an unknown reason. Just 330 secondary schools account for almost a quarter of unexplained moves. The Department for Education said it was looking into the issue, and that it had written to all schools to remind them of the rules on exclusions. More from The Week here.
  • Parliament’s Joint Committee on Human Rights (JCHR) has warned that the rights of detained children are being repeatedly breached. In a report published last Thursday, it recommended that Young Offenders’ Institutions should be banned from deliberately inflicting pain on young offenders and from putting them in solitary confinement. It found that hospitals and jails are restraining children too frequently, and that such techniques are being used disproportionately against ethnic minorities. Around 2,500 young people are in detention at present. More from the Guardian here.
  • The activities of Extension Rebellion, the climate change group, sparked discussion and controversy this week. The organisation has three core demands: greater transparency about climate change, a legally binding commitment to zero carbon emissions by 2025, and the creation of a citizens’ assembly to oversee the issue. The group has staged protests in London for the past week, which has included shutting down a large portion of Oxford Street. Over 800 people have been arrested. The group has been criticised for adding pressure on already overburdened police force, and for the disruption caused to people’s lives and businesses. Extinction Rebellion has announced that it will pause its protests for the duration of next week. More from the BBC here.

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The High Court orders a fresh inquest, dismisses a discrimination claim, and quashes a police officer’s compensation– the Round Up

18 March 2019 by

Conor Monighan brings us the latest updates in human rights law

IICSA

In the News:

The Independent Inquiry into Child Sexual Abuse (IICSA) heard evidence about Sir Cyril Smith, the former MP for Rochdale. It has been alleged that Sir Cyril Smith abused boys in the 1960s at a school and hotel. The allegations were investigated by the police, but no further action taken.

Lord Steel, the former Liberal leader, gave evidence to the Inquiry. He explained that an article in Private Eye caused him to approach Cyril Smith about the allegations. Lord Steel said that, following this conversation, he “assumed” the allegations were true.

Lord Steel explained he had decided not to act because the accusations were “nothing to do with me”. He “saw no reason to go back to something that happened during his time in Rochdale” and the events happened “before he was even a member of the Liberal Party or an MP”.

Lord Steel’s comments sparked anger and he has been suspended from his party. He has since stated that the matter was properly an issue for the police and the council, and that he was not in a position to re-open the investigation.

In Other News….

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Supreme Court will not hear assisted suicide appeal

30 November 2018 by

Conway, R (on the application of) v Secretary of State for Justice [2018] – read judgment

A man suffering from motor neurone disease has been refused permission to appeal to the Supreme Court in his bid to be allowed to choose when and how to die. He is now wheelchair bound and finds it increasingly difficult to breathe without the assistance of non-invasive mechanical ventilation (NIV). His legal campaign to win such a declaration, on his own behalf and others in a similar position, has met with defeat in the courts (see our previous posts on Conway here,  here and here). As the Supreme Court noted in their short decision, Mr Conway

could bring about his own death in another way, by refusing consent to the continuation of his NIV. That is his absolute right at common law. Currently, he is not dependent on continuous NIV, so could survive for around at least one hour without it. But once he becomes dependent on continuous NIV, the evidence is that withdrawal would usually lead to his death within a few minutes, although it can take a few hours or in rare cases days.

But Mr Conway doesn’t  see this as a solution to his difficulties, since he cannot predict how he will feel should ventilation be withdrawn, and whether he will experience the drowning sensation of not being able to breathe. Taking lethal medicine, he argued,  would avoid all these problems.

In his view, which is shared by many, it is his life and he should have the right to choose to end it in the way which he considers most consistent with his human dignity.

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Down the Rabbit Hole of Genetic Testing

19 April 2016 by

Can our genotype tell us about our behaviour as well as our biology?

Photo credit: Guardian

“ After this there is no turning back. You take the blue pill: the story ends, you wake up in your bed and believe whatever you want to believe. You take the red pill: you stay in Wonderland and I show you how deep the rabbit hole goes.”

– Morpheus, The Matrix

The explosion of genetic testing in the last half century has produced unquantifiable benefits, allowing scientists to understand the constitution of genetic disorders and dramatically improve disease diagnosis, avoidance and treatment. Consider the near-eradication of Tay-Sachs, a fatal neurodegenerative disease, since the introduction of screening in the 1970s; the standardisation of newborn testing; and the introduction of BRCA1 and BRCA2 testing for inherited cancer genes.

These advances have created challenging ethical and legal questions, however: How much information does each of us want to know about our genetic makeup?; Do we have a responsibility to seek such information out? What should we do with the information once we get it? What about the significant risks of stigmatisation and discrimination?; And, where do doctors’ duties begin and end insofar as they are, or ought to be aware of testing outcomes?

In the High Court last week (judgment available here) McKenna J dealt with the latter question, striking out a claim by a patient’s relatives over a missed diagnosis of a genetic disorder and holding that a third party cannot recover damages for a personal injury suffered because of an omission in the treatment of another.
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Best interests, hard choices: The Baby C case

19 November 2015 by

Royal courtsJudgments in best interests cases involving children often make for heart-wrenching reading. And so it was in Bolton NHS Foundation Trust v C (by her Children’s Guardian) [2015] EWHC 2920 (Fam), a case which considered Royal College of Paediatrics and Child Health guidance, affirming its approach was in conformity with Article 2 and Article 3 ECHR. It also described, in the clearest terms, the terrible challenges facing C’s treating clinicians and her parents.
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Intensive care, and the outer limits of Cheshire West

6 November 2015 by

Int careThe Queen (on the application of LF) v HM Senior Coroner for Inner South London [2015] EWHC 2990 (Admin)

Where a coroner has reason to suspect that a person has died in custody or “otherwise in state detention” and that the death was violent, unnatural or by way of unknown cause, the coroner must hold an inquest with a jury (section 7 Coroners and Justice Act 2009 (“CJA”)). The interesting issue in this case was whether and/or in what circumstances a person who has died whilst in intensive care will be regarded as having died “in state detention”, thus triggering a jury inquest.
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Supreme Court says Welsh NHS charges Bill in breach of A1P1

11 February 2015 by

Asbestos-588x340Recovery of Medical Costs for Asbestos Diseases (Wales) Bill: reference by Counsel General for Wales [2015] UKSC 3, 9 February 2015 – read judgment here

Sounds like a rather abstruse case, but the Supreme Court has had some important things to say about how the courts should approach an argument that Article 1 of Protocol 1 to ECHR (the right to peaceful enjoyment of possessions) is breached by a legislative decision. The clash is always between public benefit and private impairment, and this is a good example. 

The Welsh Bill in issue seeks to fix those responsible for compensating asbestos victims (say, employers) with a liability to pay the costs incurred by the Welsh NHS in treating those victims. It also places the liability to make such payments on the insurers of those employers.

In short, the Supreme Court found the Bill to be in breach of A1P1, as well as lying outside the legislative competence of the Welsh Assembly.  Let’s see how they got there, and compare the conclusion with the failed A1P1 challenge brought in the AXA case (see [2011] UKSC 46, and my post here) concerning Scottish legislative changes about respiratory disease.

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Conscientious objection to abortion: Catholic midwives lose in Supreme Court

28 December 2014 by

pic_giant_051713_Therapeutic-Cloning-of-Human-EmbryosGreater Glasgow Health Board v. Doogan and Wood [2014] UKSC 68 – read judgment here.

The Supreme Court recently handed down its judgment in an interesting and potentially controversial case concerning the interpretation of the conscientious objection clause in the Abortion Act 1967. Overturning the Inner House of the Court of Session’s ruling, the Court held that two Catholic midwives could be required by their employer to delegate to, supervise and support other staff who were involved in carrying out abortion procedures, as part of their roles as Labour Ward Co-ordinators at the Southern General Hospital in Glasgow.

We set out the background to the case and explained the earlier rulings and their ramifications on this blog here and here. The key question the Supreme Court had to grapple with the meaning of the words “to participate in any treatment authorised by this Act to which he has a conscientious objection” in section 4 of the 1967 Act.

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High Court rules dead partner’s sperm can be kept despite lack of written consent

12 March 2014 by

Sperm, microscopicElizabeth Warren -v- Care Fertility (Northampton) Limited and Other [2014] EWHC 602 (Fam) – Read judgment / court summary 

The High Court has ruled in favour of a 28-year-old woman who wanted her late husband’s sperm to be retained even though the correct written consent was not in place. Mrs Justice Hogg (‘Hogg J’) ruled that Mrs Warren has a right under Article 8 of the European Convention on Human Rights (the right to respect for private and family life) to decide to become a parent by her deceased husband.

Mr Brewer had put his sperm into storage in April 2005 in order to enable his wife, Elizabeth Warren, to conceive a child by him after his death. However, he was not advised by his Clinic as to the statutory steps he needed to take in order for his sperm to be stored for longer than 10 years. In the event, he sadly passed away shortly before the lawful expiry of his consent, leaving his widow insufficient time to decide whether she wished to conceive his child.

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Trains, pains and allegations: fairness in medical misconduct cases – Richard Booth QC

19 January 2014 by

785px-Doctors_stethoscope_1West London Mental Health NHS Trust (Respondent) v Chhabra (Appellant) [2013] UKSC 80 – read judgment

It is not unknown for lawyers or doctors to speak on a mobile phone about confidential details of a case while travelling by train. Some of you may even have left case papers out on your seat or table while you hunt down a bacon baguette from the Travelling Chef (formerly known as “Toastie Geoff” prior to rebranding). If so, read on, for this is a cautionary tale…

This appeal by Dr Chhabra was concerned with the roles of the case investigator and the case manager when handling concerns about a doctor’s performance under the disciplinary procedures introduced over eight years ago for doctors and dentists in the National Health Service. The national policy framework is known as ‘Maintaining High Professional Standards in the Modern NHS’ (MHPS), which the Trust had implemented through its own policies.

The factual summary below is derived from the Supreme Court Press Summary


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Hospital closures and the rule of law

8 November 2013 by

lewisham-dont-keep-calm-posterTrust Special Administrator appointed to South London Healthcare NHS Trust v. LB Lewisham & Save Lewisham Hospital Campaign [2013] EWCA Civ 1409, 8 November 2013  – read judgment

Jeremy Hyam of 1 Crown Office Row acted for Save Lewisham Hospital Campaign. He was not involved in the writing of this post.

It takes a bit of time to close a hospital or make major changes to it. This is because you must go through a complicated set of consultations with all those likely to be affected before action can be taken. Many, if not most, people say this is a good thing, and Parliament has embedded these duties of consultation in the law.

In this case, the Department of Health said it could close the A&E Department of Lewisham Hospital, as well as limiting maternity services to midwives alone and reducing paediatric services – without going through the formal consultation process. The Borough of Lewisham, and a local campaigning group, said that the DoH had no power in law to do this.

The judge, Silber J, agreed with them, and so now does the Court of Appeal. It dismissed Jeremy Hunt’s appeal 10 days ago, and published its reasons today.

If Mr Grayling has his way, it seems unlikely that the Save Lewisham Hospital Campaign would have had “standing” to bring this claim, however meritorious in law it may have been: see my post on this. I dare say this lesson will not be lost on him, though, sadly, many think that such wins against the government make it more rather than less likely that he will implement his changes to the rules in judicial review.

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Supreme Court weighs in on patient’s best interests and the meaning of futility

3 November 2013 by

Surgeons-007Aintree University Hospitals NHS Foundation Trust (Respondent) v James (Appellant) [2013] UKSC 67 – Read judgment / press summary

The Supreme Court has given judgment in the first case to come before it under the Mental Capacity Act 2005.  The sole judgment was given by Lady Hale (Deputy President of the Court), with whom Lord Neuberger, Lord Clarke, Lord Carnwath and Lord Hughes.

The case concerned best interests decisions in the case of a patient lacking capacity.  The patient, David James, had been admitted to hospital in May 2012 aged around 68 because of a problem with a stoma he had had fitted in 2001 during successful treatment for cancer of the colon. The problem was soon solved but he acquired an infection which was complicated by the development of chronic obstructive pulmonary disease, an acute kidney injury and persistent low blood pressure.  He was admitted to the critical care unit and placed on a ventilator.

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Human rights – coming to a private care home near you?

28 October 2013 by

Winterbourne View

Winterbourne View

Human rights protection for residents in private care homes could be a step closer after the House of Lords passed an amendment to the Care Bill.

The amendment, moved by Lord Low of Dalston and supported by Lord Lester of Herne Hill QC and Lord Pannick QC, makes clear that a person who provides regulated “social care” is to be taken for the purposes of subsection 6(3)(b) of the Human Rights Act 1998 to be exercising a function of a public nature.

It is the latest development in a long-running battle to secure human rights protection for service users who are not in local authority-run care homes.

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Court orders MMR vaccine for children

18 October 2013 by

3_3_5_vaccination

F v F [2013] EWHC 2683 (Fam) – read judgment

The High Court has ruled that two sisters must receive the MMR vaccine against their wishes and the wishes of their mother.

This was an application by the father for a declaration and a specific issue order concerning his daughters both receive the MMR vaccination. This was opposed by their mother.

Background

Following the breakdown of their parents’ marriage, the girls (aged 11 and 15 respectively) lived with their mother, and the father had contact every alternate weekend and half the school holidays. After publication of the now discredited paper published by Dr Andrew Wakefield in the Lancet connecting the MMR vaccine with autism, both parents agreed not to have a booster arranged for the older daughter (who had been inoculated against MMR at birth) and to forego a vaccination for the other daughter completely.
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