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In Episode 146 Emma-Louise Fenelon speaks to Richard Mumford and Rajkiran Barhey about recent developments in medical law.
All of the cases discussed during this episode are covered in the most recent issue of the QMLR, available here. We highly recommend the new QMLR website to our listeners, who we hope will find the archive of previous articles and the search function (making it possible to search by keyword, category and author) enormously helpful.
Over ten years ago I posted on the wasteful prohibition under the EU Animal By-Product Regulation on feeding meat and bone meal – waste from slaughterhouses – to omnivorous farm animals, poultry and pigs. See Pigswill and public health: a load of EU Bull, 7 January 2011. While this regulation has been in force the protein needed by these fast growing animals has had to come from expensive soybeans, imported from South America where hundreds of miles of rainforests have been laid waste to make room for the soy crop. As you will remember from that post, the ban was introduced following the BSE crisis, itself a possibly predictable consequence of feeding spinal tissue to vegetarian ruminants.
This ban extended to anyone feeding food scraps to farmed animals, no matter how small the operation and how innocent the scraps. As I said in my last post,
Anyone with a few hens pecking away in the backyard needs to look sharp: a “farmed animal” for the purpose of the Regulation means any animal kept for the provision of food, and a couple of eggs a week may bring a Defra van trundling up the drive at any moment.
And in 2004 our very own Prime Minister, then MP for Henley, reported that in his constituency a hotel
must now pay an extra £1,000 a year to a licensed collector, whose responsibility it is to remove wet waste that previously went to a pigswill feeder. Given that there is room for only three years’ waste in our landfill sites, that is not the cleanest and greenest solution. It is estimated that the ban on swill feeding is generating an extra 1.7 million tonnes of waste per year, and that which does not fill up our landfill sites must be going down our drains, clogging up the sewers and attracting vermin
Finally it seems to have dawned on the EU Commission that this is a very un-green piece of legislation in an era where the EU obliges its member states by draconian legislation to recycle, limit landfill, restrict incineration, cut down on carbon emissions and save energy.
Figures published by the Ministry of Justice showed that the backlog of crown court cases had risen to yet another record high: by 31 March this year, there were almost 60,000 outstanding cases, a rise of 45 per cent on the previous year. In the magistrates’ courts, that figure stood at 400,000, a rise of 21 per cent.
Waiting times have hiked accordingly: the average crown court case it now taking just under a year, 363 days, to be heard. Some trials are already being scheduled for 2023.
These latest figures follow the Ministry of Justice’s End-to-End Rape Review Report on Findings and Actions, covered on last week’s round-up, which revealed that processing times for rape complainants were particularly egregious, averaging around a thousand days between the commission of an offence and the conclusion of a trial.
Several MPs were quick to diagnose root causes of the criminal justice system’s dismal condition. Shadow justice secretary David Lammy complained that ‘the Conservatives are forcing victims of rape, domestic abuse and violent assault to wait months and years for justice if they get it at all’, blaming the compounded effect of ‘the government’s decade of court closures, combined with its incompetent response to the pandemic’. Liberal Democrat MP Wera Hobhouse also pointed to pre-coronavirus underfunding, warning that ‘ministers must not use Covid as an excuse for this backlog, or to undermine the fundamental right to trial by jury.’
A collective submission made by special advocates (security-cleared barristers who appear in secret proceedings) has been cleared for publication. This document is a response to the review being performed by Sir Duncan Ouseley, looking into the operation of closed material procedures (CMPs) under the Justice and Security Act 2013. It gives an unprecedented insight into the workings and challenges of these procedures, which enable the State to rely on secret material not shown to the other side in court proceedings.
I have acted as a special advocate since 2002, and am one of the 33 special advocates who have subscribed to the submission. Together, we have experience of every case in which the procedures under the 2013 Act have been invoked, across the UK. I believe that the submission is an important contribution to the public understanding of CMPs, which are generally shielded from any scrutiny. The conduct of the Review itself is not only a safeguard which Parliament had imposed in the face of controversy and concerns at the time the proposals that led to the Act were being debated. It is also a prime opportunity for open discussion and debate in relation to these procedures. Sir Duncan Ouseley is a retired High Court Judge with extensive experience of CMPs so is eminently well placed to be undertaking this task.
In January 2020 I posted a piece on this blog, entitled “Secret Justice”: An Oxymoron and the Overdue Review. This sets out the background to these secret procedures, which I will not repeat here. In that piece I raised concern at the continuing failure by the Government to implement the review that Parliament had required to be performed “as soon as reasonably practicable” five years after the relevant procedures under the Justice and Security Act 2013 (JSA) came into force. That 5 year anniversary had come and gone in June 2018, and in January 2020 there was still no sign of the Government complying with the law in section 13 of the JSA. It was to be another year before the review was finally announced in February 2021. On 7 April 2021 the ‘Call for Evidence’ was issued on behalf of the reviewer, just short of three years after the end of the period that was to be reviewed.
In Khan v. Meadows[2021] UKSC 21 the Supreme Court has revisited the principles to be applied in “wrongful birth” claims: claims for the cost of bringing up a disabled child who would not have been born but for a doctor’s negligent medical advice/treatment. However, the judgment has implications beyond the world of clinical negligence litigation. The Supreme Court has taken the opportunity to clarify the components or ingredients of the tort negligence more generally. In particular, the Court has affirmed the importance of the “scope of duty” principle: a principle which limits the recoverability of damages wherever it applies. In particular, it is not sufficient for a claimant to establish that – with competent advice – they would have made a different decision about their treatment or care. They must also demonstrate that the particular harm that they have suffered fell within the scope of the defendant’s duty of care.
On Friday 18 June, the Ministry of Justice published the End-to-End Rape Review Report on Findings and Actions, which assesses how the system is currently failing rape complainants, and sets out a plan to return the volume of cases progressing to court to pre-2016 levels.
In the two years it took to produce the report, the number of rape prosecutions continued to decline rapidly, prompting concerns that rape had been de facto decriminalised. The drop appears to stem from the CPS’s introduction of “levels of ambition” in 2016. Prosecutors were encouraged to aim for 60% of prosecuted cases ending in a conviction; perversely, this may have incentivised dropping weaker or more challenging cases, and resulted in a 60% drop in prosecutions even as the number of police reports increased.
There have been calls for the Lord Chancellor Robert Buckland to resign if he cannot reverse the trend within a year. In the review’s forward, ministers collectively said they were “deeply ashamed.” Elsewhere, Buckland said he was “deeply sorry”.
However, the review has come under fire for an “astonishing” failure to address the effect of funding cuts, reduced resources, release under investigation, court backlogs and delays on the criminal justice system. When asked directly whether he agreed that the system was too under-resourced to be effective, Buckland replied, “I don’t believe we’re close to breaking point, but I do accept that there are pressures on the system which do cause some of the legitimate concerns that I’ve sought to address in the rape review.”
Buckland currently has 21 days to decide whether to request a formal reconsideration of the Parole Board’s decision to approve the release of Colin Pitchfork, jailed in 1988 after raping and strangling 15-year-olds Lynda Mann and Dawn Ashworth in Leicestershire in 1983 and 1986. Shortly after the review’s publication, an analysis of thousands of sexual offence convictions has shown that nearly a third of those convicted avoid prison, including those found guilty of serious sexual offences against children under 13.
During the pandemic, the public’s gratitude to the medical profession has been palpable. But rightly, practitioners continue to be regulated, supervised by the Courts. Here we report a clutch of decisions highlighting some common themes: the importance of transparency and maintaining public confidence in the profession; managing conflicts of interest; making and handling findings of dishonesty.
In R (on the application of Young) v General Medical Council [2021] EWHC 534 (Admin), the Administrative Court upheld the decision of a GMC Assistant Registrar (AR) to proceed with charges against the Claimant notwithstanding a previous Assistant Registrar had taken a contrary view.
The events giving rise to the case were tragic. In October 1996 Claire Roberts, age 9, died at the Royal Belfast Hospital for Sick Children two days after admission. Her death wasn’t referred to the Coroner and the certificate failed to record the diagnosis – hyponatraemia, a condition where sodium in the blood falls dangerously low, leading to cerebral oedema.
In late 2004, a public inquiry was convened following a documentary about the deaths of three other children from hyponatraemia, which prompted Claire’s parents to contact the hospital. The Claimant – Professor of Medicine at Queen’s University, Belfast – was asked to review Claire’s clinical notes and met with Mr and Mrs Roberts in December 2004. A letter to them followed in January 2005 to which he contributed. In May 2006 he gave evidence at the inquest convened to investigate Claire’s death.
The Prime Minister’s recent decision to delay plans to lift coronavirus restrictions by a month has been met with criticism among some legal commentators. The removal of restrictions is now due to take place on 19 July, instead of 21 June. The new deadline was described by the PM as a “terminus date” after which we must “learn to live with Covid”.
In his announcement, the Prime Minister cited the spread of the highly transmissible Delta variant, which now accounts for more than 90% of cases in the UK, and promised to use the extra time to accelerate the vaccination programme. New analysis by Public Health England shows for the first time that two doses are highly effective against hospitalisation from the variant. More than half of UK adults have had their second jab, including 91% of people over 50, and people as young as 18 will be invited to book a jab from the end of the week.
Former Supreme Court Justice Lord Sumption, a prominent critic of the government’s lockdown measures, called the continued lockdown “wicked” and raised the “extreme example” of “Nazi race laws” in arguing that there was no moral obligation to comply with certain laws. In response, barrister Adam Wagner quipped that Lord Sumption’s comments represented “the best case for his own argument that judges should not get involved in politics.”
Elsewhere, however, Wagner acknowledged that the courts have been reluctant to intervene with Covid restrictions, but suggested that at this stage a legal challenge to a refusal to allow a business such as a nightclub to open to double vaccinated customers might be effective. Wagner suggested that “the continued closure of a small number of businesses when the balancing factors have radically changed due to vaccination” might engage Article 1 of protocol 1 of the European Convention on Human Rights, which requires any interference with the ‘peaceful enjoyment of property’ to be proportionate. The delay is predicted to cost UK hospitality £3bn in lost sales and have a “critical impact on struggling businesses.
The announcement was widely anticipated and the public response has been understated. However, it remains to be seen whether the midsummer “terminus date” will truly put lockdowns behind us once we enter the darker, colder months of this pandemic’s second year.
In a significant adverse judgment for child abuse claimants, DFX v Coventry City Council [2021] EWHC 1382 (QB), Mrs Justice Lambert rejected a claim brought by a number of claimants who alleged that the defendant council’s social services negligently delayed in instigating care proceedings and that had they been removed from the family home earlier they would have avoided serial abuse at the hands of their parents.
The factual background was that save for a hiatus between June 2001 and February 2002, the defendant’s social services department had been engaged with the claimants’ family throughout the 15 years from 1995 to 2010. Between 1996 and 1999, the first and second claimants were on the child protection register and, between March and September 2002, all of the claimants were on the register. In April 2009, the defendant issued care proceedings in the Coventry County Court. Initially, the removal of the children was sought under an emergency protection order. This was not successful. An interim order was in March 2010 removing all of the children, save for the eldest (a boy, by then aged 17), into foster care. In June 2010, full care orders were made and care plans removing the eight children from the family were approved by the court.
The claimants’ case was that they each suffered abuse, including sexual abuse, and neglect whilst in the care of their parents before their removal from the family in 2010. The claimants alleged that their parents were unfit to be parents and that this should have been obvious to the social workers involved with the family. Between 1992 and 1997, the father was convicted of four offences of indecency towards teenage girls. He had learning difficulties and had limited insight into his offending. The mother also had learning difficulties and it was alleged that she demonstrated repeatedly that she was either unable or disinclined to protect the claimants from their father or from predatory men who visited the home. The risks to the children were increased by the presence in the home of the maternal grandmother who lived with the family until March 2004. She also had learning difficulties and was associated with three “risky adult” men who visited the home. The home was often squalid and the children dirty and unkempt.
In its judgment of 25 May 2021 the Grand Chamber of the European Court of Human Rights found that certain aspects of the UK’s regime governing bulk interception of communications were contrary to Articles 8 and 10 of the Convention.
The case concerned three different interception regimes: bulk interception of communications; the receipt of intercepted material from foreign governments and intelligence agencies; and the obtaining of communications data from communication service providers (“CSPs”). The three applications were introduced by individuals, journalists and human rights organisations following Edward Snowden’s revelations about surveillance programmes operated by the intelligence services of the USA and the UK.
Alta Fixsler was born with catastrophic brain injury. She now two years old, currently a patient at the Royal Manchester Children’s Hospital Paediatric Intensive Care Unit on intensive life sustaining treatment. In this case the court was asked to decide whether it would be in Alta’s best interests for that life-sustaining treatment to be continued. The inevitable consequence of it being discontinued will be the death of Alta.
The parents are Chassidic Practising Jews and Israeli citizens. They emphasised the fact that being devout members of the Jewish faith meant that their faith was not simply a religion but also a way of life. Within this context, the parents took detailed rabbinical advice as to their religious duties and obligations in the context of Alta’s medical situation. They opposed the application brought by the NHS Trust and instead sought to take Alta to Israel for continued treatment and the exploration of long-term ventilation at home in Israel in due course or, if the court concluded that it is in Alta’s best interests for life sustaining treatment to be withdrawn, for that step to be taken in Israel.
A declaration pursuant to the inherent jurisdiction of the High Court that it is not in the best interests of Alta for life-sustaining medical treatment to be continued, and that is it in her best interests for a palliative care regime to be implemented;
A specific issue order under section 8 of the Children Act 1989 determining that life-sustaining medical treatment should cease to be provided and a palliative care regime implemented instead.
Since November 2020, the Tigray region in the north of Ethiopia has been the epicentre of an awful (and hugely underreported) humanitarian disaster. War and violence have sent the region’s inhabitants fleeing over the Ethiopian border in search of asylum, while those who have not escaped are left to suffer increasingly disturbing conditions. Although the conflict was declared ‘over’ very quickly by the Ethiopian central government, abhorrent human rights abuses have continued while humanitarian access has been turned away. To understand how a nation led by a Nobel Laureate has fallen from grace on the world stage so dramatically, it is important to consider the circumstances which led to the outbreak of violence, and furthermore what it may mean for the future of Ethiopia and her people.
Ethiopia has long been a fairly fractious nation in terms of the patchwork of demographics within its borders. The Tigray region (bordering Eritrea to the north) is home not only to a majority of Tigrayan people – who account for 6.1% of Ethiopia’s population – but also myriad other ethnic groups. The majority ethnic group in Ethiopia are the Oromo, comprising 34.4% of the Ethiopian people.
Upon taking office, Ethiopian PM Abiy Ahmed promised to heal Ethiopia’s ethnic divide; all things told, he has been fairly true to his word, and in 2019 he was awarded the Nobel Peace Prize for having brought an end to the 20-year old conflict with Eritrea. However, 2020 proved to be a defining chapter in Abiy Ahmed’s political career; citing social restrictions necessary to curtail the spread of COVID-19, he delayed the Ethiopian General Election from August 2020 to 5th June 2021. These actions were already disagreeable enough to some critics, though Abiy only stoked tensions further by having several of his rivals incarcerated. Most notably among these was Jawar Mohammed, who saw his ‘terror charge’ as a badge of honour and denounced PM Abiy for his blatant targeting of political opponents.
In Episode 145, Emma-Louise Fenelon speaks to Bill Browder, co-founder of Hermitage Capital, author of best-selling book Red Notice and justice activist. The episode focuses on Sergei Magnitsky, a lawyer who died in pre-trial detention in Russia after uncovering and exposing a tax fraud of $230m and Bill Browder’s campaign to bring those responsible to justice. The campaign culminated with the Magnitsky Act, which was passed by the United States Congress in 2012, and later became the Global Magnitsky Act. Similar legislation has been introduced by Canada, Lithuania, Estonia and the United Kingdom.
The first provision of German Basic Law (Grundgesetz)
On 28th of April I wrote up a judgment by Weimar District Court Judge Dettmar against masks and social distancing in schools, and his subsequent handling by the police and District Prosecutor. Judge Dettmar’s decision of the 8th of April was overturned last week and the proceedings were discontinued.
The same court had produced a similar judgment ( 6 OWi 583 Js 200030/21) in a “Corona trial” on the 15th of March 2021 published on the 6th of May 2021. This was a ruling from a judge with a different jurisdiction in the same court. Judge Güricke, unlike Judge Dettmar, is not a family judge. Part of his jurisdiction concerns the validity of subordinate legislation, particularly ordinances banning certain behaviour, on pain of a fine or even a prison sentence. All administrative offences that are not traffic offences fall into this jurisdiction; and the Corona fine cases fall into the Special Administrative Offences division of which Judge Güricke is part. This, his latest judgment, examines in great depth what the government actually knew and should have known about the situation prevailing when the government decided on lockdown in March 2020.
It is well worth reading. Despite the fact that the German media has barely picked up on it, it is being commented upon and read in legal circles.
Judge Güricke’s ruling on the constitutional point is final. The public prosecutor’s office have not been able to appeal because the Thuringian Constitutional Court handed down a ruling on 1 March 2021 that all Thuringian Corona decrees, starting with the first one issued in March 2020 until the beginning of June 2020, were unlawful and null and void due to an error in formalities.
The arrest of opposition activist Roman Protasevich and his girlfriend, Sofia Sapega in Minsk last Sunday, following the forced grounding of Ryanair flight FR4978 from Athens to Vilnius has captured headlines this week. Mr Protasevich is a former editor of Nexta, an online dissident group with the most popular Telegram messaging channel in Belarus. Nexta produces online content in a similar style to that of Russian activist Alexei Navalny, uncovering corruption in Europe’s last dictatorship.
Although state-run Belarussian TV initially claimed that the plane had requested the diversion to Minsk, a later transcript was shown in which air traffic controllers told the pilot that there was a bomb on board the plane. A Russian-bought MiG fighter jet escorted the plane to Minsk airport, where Mr Protasevich and Miss Sapega were detained. Belarus is the last country in Europe to impose the death penalty, and the inclusion of Mr Protasevich on a KGB list of terrorist suspects (for which the death penalty applies in Belarus) has sparked fears over his sentencing. However, he has so far only been charged with organising mass unrest for his coverage of the 2020 election (widely known to have been rigged). The Committee to Protect Journalists records the murders of six journalists in Belarus since 1994, when Alexander Lukashenko became dictator. Self-exiled opposition leader Sviatlana Tsikhanouskaya, who entered politics herself after the arrest of her journalist husband, has reported that she believes Mr Protasevich (who suffers from heart disease) may currently be in hospital following heart complications.
Estonia’s president, Kersti Kaljulaid, has reiterated her pleas for the UK to take a tougher stance on money entering the country from corrupt regimes, whereafter it is dissipated through the London financial sector. She first requested the UK make needed changes after the attempted murders of Sergei and Yulia Skripal in 2018 by FSB agents. While the government has stated it will take action, there is not yet any evidence of fresh safeguards to prevent money flowing through the UK system. The UK, which already sanctions Belarus, is now preparing to discuss further sanctions in tandem with EU leaders.
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