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 A second medical opinion must sought before hydration and nutrition is withdrawn.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”.
MAK and RK v United Kingdom (Application Nos 45901/05 and 40146/06) European Court of Human Rights March 23, 2010 – Read judgment
The taking of blood samples and photographs of a child by the medical authorities in the absence of the parents violated the child’s and parents’ rights to respect for their private and family life under Article 8 of the European Convention, and the inability of the parents to take an action for damages at common law against the hospital breached their right to a remedy under Article 13.
The applicant M.A.K was the father of R.K., who was born in 1989. In 1997 and again in 1998 M.A.K. took her to their family doctor because he, his wife and their daughter’s swimming teacher were concerned about what appeared to be bruising on her legs. This was followed by a visit to a paediatrician who had blood samples and pictures of the girl taken in the absence of either of the parents and despite the father’s indication that any tests should be done in the mother’s presence or with her explicit consent. The paediatrician concluded, after examining the girl’s genitalia and legs, that she had been sexually abused and informed the social workers.
Shirley Chaplin, an NHS nurse who was moved to a desk job for wearing a crucifix at work, has lost her employment discrimination claim against the NHS.
The Employment Tribunal judgment is not available at present, but The Times reports:
John Hollow, the tribunal chairman, ruled that the Royal Devon and Exeter Hospital had acted reasonably in trying to reach a compromise. It had argued that the objection to the crucifix, which Mrs Chaplin, from Kenn, near Exeter, had worn for 30 years, was based on health and safety concerns about patients grabbing the necklace, not religion.
According to the Christian Legal Centre (CLC), which strongly supports Ms. Chaplin’s case, the Tribunal held that Mrs Chaplin had not been indirectly discriminated against by the application of the uniform policy because she could not prove she was part of a group affected by the policy.
The Tribunal applied the reasoning in the previous case of Nadia Eweida v British Airways  EWCA Civ 1025. Ms Ewieda’s claim also involved her being banned from wearing a Christian cross at work, in that case at British Airways. The Court of Appeal made clear that in an indirect discrimination cases brought under Reg. 3(1) of the Employment Equality (Religion or Belief) Regulations 2003, it was necessary to show that there had to be evidence of a “group disadvantage”, i.e. that more than one person had been affected by the policy. Ms Eweida could not establish a ‘group’ and as such her case failed.
The CLC claim that “the Tribunal has now decided that a group must be more than two people as well—leaving the law in a ludicrous level of uncertainty”. Ms Chaplin has already said she plans to appeal the decision.
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.
KH (Afghanistan) v Secretary of State for the Home Department  EWCA Civ 1354 (Sedley LJ, Longmore LJ, Aikens LJ):
Only in very exceptional cases would withdrawal of medical treatment as a result of ordering the return of a failed asylum seeker constitute a breach of Article 3 ECHR. The case of an 29 year old man with mental illness and no family support in the country of return was not sufficiently exceptional.
JA (Ivory Coast) and ES (Tanzania) v Secretary of State for the Home Department  EWCA Civ 1353 (CA (Civ Div) (Sedley LJ, Longmore LJ, Aikens LJ)
In these two cases, heard together, the Court of Appeal provided clarification of the circumstances in which Art. 8 of the European Convention of Human Rights entitles foreign nationals’ to remain in the UK in order to receive medical treatment.
Article 3 does not dictate a minimum standard of social support for those in need, nor does it require the state to provide a home or minimum level of financial assistance to all within its care.
W was an Eritrean national who had entered the UK illegally. Fingerprint evidence traced his irregular entry into the EC to Italy following which the UK authorities sought from the Italian authorities an undertaking to accept responsibility for W’s application for asylum under the terms of the Dublin II Regulation. Italy did not respond and therefore it was deemed to have accepted responsibility for the asylum claim by default.
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