Category: Medical


Medical intervention without parental consent violated child’s and parents’ Article 8 rights says Strasbourg Court

21 April 2010 by

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.

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NHS Nurse banned from wearing crucifix at work loses discrimination claim

7 April 2010 by

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 [2009] 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.

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New assisted suicide guidance “focused on motivation of the suspect rather than characteristics of the victim” – DPP [updated]

25 February 2010 by

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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Court of Appeal rules on foreign nationals’ right to stay in UK for medical treatment

15 January 2010 by

KH (Afghanistan) v Secretary of State for the Home Department [2009] 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.

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Court of Appeal rules on entitlement of foreign nationals to treatment for HIV

10 January 2010 by

JA (Ivory Coast) and ES (Tanzania) v Secretary of State for  the Home Department [2009] 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 and the minimum standard of social support

18 November 2009 by

R (on the application of EW) v Secretary of State for the Home Department, [2009] EWHC 2957 (Admin) 18 November 2009 – read judgment

Summary and comment by Rosalind English

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.

SUMMARY

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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