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A case about medical treatment for children experiencing gender dysphoria is bound to evoke strong feelings. So, in early October, when the parties in R (on the application of Quincy Bell and A v Tavistock and Portman NHS Trust and others arrived for the hearing at the Royal Courts of Justice, they found a buzz of press photographers and a throng of campaigners with placards.
Now the Divisional Court has delivered its judgment in this controversial and difficult case. On 1 December 2020, it substantially upheld the Claimants’ challenge to the practice of prescribing puberty-blocking drugs to children, some as young as 10, with gender dysphoria.
The first Claimant, Quincy Bell, was born female. At about 15 she was prescribed puberty blocking drugs (PBs) to halt the development of female sexual characteristics. Subsequently she transitioned to a male using “cross-sex hormones” and then underwent a double mastectomy. She told the court her doubts began before the surgery and she now wished to identify as a woman, reverting to the sex on her original birth certificate. “I made a brash decision as a teenager” she said, “… trying to find confidence and happiness except now the rest of my life will be negatively affected…transition was a very temporary, superficial fix for a very complex identity issue.”
The second Claimant was the mother of 15 year old with autismexperiencing gender dysphoria whom she feared would be prescribed puberty-blockers.
The Claimants contended that prescribing these drugs to under 18s was unlawful because they lacked competence to give valid consent to the treatment, and were given misleading information.
I wrote about the launch of these proceedings earlier this year (Legal Challenge to Lockdown) where Mr Dolan was refused permission to appeal the refusal of his application for judicial review. (see Dominic Ruck Keene’s post on that decision). Since then UKHRB has been covering this and similar challenges closely: see here and here, as well as alerting our readers to cases in other countries: New Zealand, and South Africa. My recent post on “vaccine hesitancy” and proposals for mandatory Covid-19 vaccines has attracted a considerable number of readers and comments.
Getting back to the case in hand, this latest defeat for Dolan’s team is slightly more complicated. The Court of Appeal’s ruling can be summarised briefly, but anyone wanting to be reminded of the details will do well to go back to Emmet Coldrick’s enlightening series on the earlier stages of this case and the arguments raised by the appellants in Part 1 and Part 2.
The criminal records disclosure regime provides information through Disclosure and Barring Service (DBS) certificates to employers about an individual’s criminal record. That information is then used by employers when considering the suitability of applicants for eligible roles or work.
The Order removes the requirement for automatic disclosure of youth cautions, reprimands and warnings and removes the ‘multiple conviction’ rule, which required the automatic disclosure of all convictions where a person has more than one conviction, regardless of the nature of their offence or sentence.
The opinions expressed in this article are the personal opinions of its author. Legal scrutiny of the provisions discussed in this piece is warranted but should not be taken to question the requirement to obey the regulations.
Article 9 ECHR provides as follows:
1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching practice and observance.
2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.
This protects the right to public and communal worship where that is part of the belief held by an individual or group, and accordingly Article 9 is clearly engaged.
Nevertheless, when considering the legality of the lockdown it is relevant that the neither latest iteration of the Coronavirus Regulations, nor the previous version that imposed the earlier lockdown, in any way restrict the Article 9(1) right to hold a belief, or choices made regarding personal behaviour outside the context of places of worship.
Further, the European Court of Human Rights (ECtHR) held in Pavlides v Turkey [2013] (Application 9130/09) at [29] that Article 9, taken alone or in conjunction with Article 11, does
not bestow a right at large for applicants to gather to manifest their religious beliefs wherever they wish.
The issue is therefore whether any interference with Article 9 rights was or is both necessary to meet the pressing social need of protecting the health of infected and potentially infected people (the specified exemption from Article 9) and also proportionate.
In her judgment of 27th February 2020 Hilder J laid down certain rules regarding what a property and affairs deputy can and cannot do in relation to seeking legal advice and taking steps in litigation. In these joined cases the deputies applied to the COP seeking orders for authorised expenditure of the protected persons’ estate for their costs in obtaining legal advice and conducting proceedings on P’s behalf.
The Senior Judge’s conclusions are set out in her summary at the end of the judgment. In Episode 131 of Law Pod UK Amelia Walker of 1 Crown Office Row discusses some of the salient issues in this comprehensive “one stop shop” ruling with Rosalind English.
On Monday 23rd November, a self-isolating Boris Johnson announced a new system of restrictions to replace the UK’s second month-long lockdown, due to come into effect on Wednesday 2nd December. The new set of rules represents a stricter and no less confusing version of the old three-tiered system.
Non-essential shops, gyms, and hairdressers will be allowed to reopen across the country. People are still encouraged to minimise travel and to work from home where possible. The following additional tiered restrictions will apply:
Tier 1 (Medium Risk):
The ‘Rule of Six’ will apply for both indoor and outdoor gatherings
Pubs and restaurants must shut at 11pm
Limited numbers of spectators may be permitted at sports and music events
Tier 2 (High Risk):
People from different households may not meet indoors
The ‘Rule of Six’ will apply for outdoor gatherings
Pubs and restaurants must shut at 11pm
Alcohol can be served only alongside a substantial meal
Tier 3 (Very High Risk):
People from different households may not mix indoors or outdoors in hospitality venues or private gardens
People from different households may only mix in public spaces like parks, where the ‘Rule of Six’ will apply
Pubs and restaurants must close except for takeaway and delivery services
Travelling into and out of the area is discouraged
The house owner did not hear when Ms Mahlangu drowned in the family swimming pool. She was a domestic worker who had given 22 years of her life to tending to that family’s needs. Like most domestic workers in South Africa, she was a Black woman. Her daughter – Sylvia Mahlangu – sought to claim compensation from a statutory fund set up for employees who suffer injuries at work. Her claim failed because the legislation excluded domestic workers, like her mother, from the definition of ‘employee’ (see here, (xviii)(d)(v) excluding “a domestic employee employed as such in a private household” from compensation).
The Constitutional Court of South Africa unanimously held that the exclusion of domestic workers from the statutory definition of employee breached the right to equality (see here), and, by majority, the rights to dignity and to social security. What I wish to focus on in this post is the diverging approaches to equality between the ‘dissenting’ judgment of Jafta J, on the one hand, and the ‘majority’ judgments of Victor AJ and Mhlantla J, on the other. In particular, I wish to focus on the way Victor AJ and Mhlantla J relied on the concept of ‘intersectionality’ to understand what was truly constitutionally offensive about excluding domestic workers from the statutory definition of employee. What follows is a necessarily high-level overview (at the risk, I accept, of being somewhat blunt). I hope the reader will understand that it is due to the constraints of space in a blog-post; I can only direct the interested reader to the judgments themselves.
At first sight, a rather abstruse dispute, but the 63 page judgment of Henshaw J gives rise to a host of important and difficult human rights points. But his central conclusion is that a statute which was not challengeable at the time of its enactment became so, because of the subsequent evolution of the law, principally common law, to the detriment of insurers.
Sounds mildly counter-intuitive? Not, I think, so, when the story has unfolded.
Inside the main hall of the Royal Courts of Justice. The Court of Appeal undertook a detailed consideration of article 2 this year.
This three-part extended analysis discusses the important recent authorities on article 2 ECHR in the context of the provision of healthcare. Part 1 examined the leading case of Lopes de Sousa and part 2 considered how it has been interpreted and applied. In this final part, the latest decision of the Court of Appeal this year will be analysed and the overall trend in the law explained.
The two lines of Strasbourg authority considered in the two Fernandes cases are extensively cited by the Court of Appeal in the decision in Maguire. This case concerned the death of a patient with Down’s syndrome, learning difficulties and limited mobility who had lived in a residential care home and was subject to deprivation of liberty safeguards. In the days prior to her death she had been ill but had not cooperated with attempts to take her to hospital and the decision was taken to care for her at the home overnight. She deteriorated and was admitted to hospital where she later died. The cause was a perforated gastric ulcer, peritonitis and pneumonia.
The claimant argued that the circumstances of the death engaged the procedural obligation to hold an enhanced inquest under article 2. Whilst agreeing initially, and holding a jury inquest, the Coroner subsequently revisited his decision in light of the Divisional Court’s judgment in Parkinson. Having heard the evidence, he did not consider there was any arguable breach of the substantive operational duty under article 2 and hence the procedural duty was not triggered. A conclusion of natural causes was recorded with a short narrative description of events.
There is a long history of crossover between lawyers and politicians; more members of parliament come from the law than almost any other profession. But the relationship – never totally tranquil – has become more strained in recent years.
This three-part extended analysis discusses the important recent authorities on article 2 ECHR in the context of the provision of healthcare. Part 1 examined the leading case of Lopes de Sousa. In this part, the way that this case has been addressed will be considered.
Criticism of the approach in Lopes de Sousa
It will be apparent that the requirements for a breach of the substantive obligation under article 2 set by the Grand Chamber overlap to some extent, and it is difficult to understand how all the factors identified in denial of treatment cases can be cumulatively required, as opposed to being alternative bases for a violation in some instances. On any view, however, the overall effect is extremely restrictive and has been criticised as such, not least in a powerfully worded dissenting judgment from Judge Pinto de Albuquerque:
For a State to avoid international-law responsibility under the Convention, it is not sufficient for health-care activities to be circumscribed by a proper legislative, administrative and regulatory framework and for a supervisory mechanism to oversee the implementation of this framework, as the Court held in Powell […] By evading the question of the specific protection of the individual right of each patient and instead protecting health professionals in an untouchable legal bubble, Powell renders the Convention protection illusory for patients. Powell seeks a Convention that is for the few, the health professionals and their insurance companies, not for the many, the patients. This must be rejected outright. [64]
[…]
This case could have been a tipping point. The Grand Chamber did not want it to be that way. I regret that, by rejecting a purposive and principled reading of the Convention, the Court did not deliver full justice [94]
Judge Serghides, also dissenting, but in less trenchant terms, regretted the Grand Chamber had “missed a good opportunity to follow Elena Cojocaru and to abandon the Powell principle for good or distinguish the present case from that old decision.” [15]
This three-part extended analysis will discuss the important recent authorities on article 2 ECHR in the context of the provision of healthcare and identify important trends in the development of the law in this area.
Where article 2 of the Convention is invoked to allege inadequate provision of healthcare by the state, recent Strasbourg and domestic authority suggest an increasingly restrictive approach.
Dominic Cummings departed from Downing Street in dramatic fashion this week. The departure may herald a change of tone for this government – but in the meantime, criticisms of government measures continue on human rights grounds.
The Joint Committee on Human Rights this week published two reports.
The first report provided legislative scrutiny of the Covert Human Intelligence Sources (Criminal Conduct) Bill. This contains a proposal to grant government agencies (of every shape and size, including the Food Standards Agency and the Competition and Markets Authority) the power to authorise undercover operatives to commit acts in the course of their undercover activities that would be otherwise criminal. The Committee’s conclusion was that the Bill does not contain adequate safeguards and oversight to prevent abuse of the proposed powers to authorise such conduct. Their report recommends a requirement for prior judicial approval before a public body can provide a criminal conduct authorisation, along with an upper limit on the type of criminal conduct that can be authorised, and a reduction in the range of public authorities with these powers, and The report is available here.
The Committee has also published a report on the human rights of black people in the UK. They have called on the government to set out a comprehensive Government race equality strategy, based on increased data collection. In particular, they have urged a focus on ending racial disparities associated with the security services (police and Home Office), democratic participation (unequal voter registration), and healthcare (the maternal mortality gap). They have also recommended that the Equality and Human Rights Commission be given stronger powers so that it can do more to tackle race inequality in the UK. The report is available here.
R (Maughan) v Her Majesty’s Senior Coroner for Oxfordshire[2020] UKSC 46
The Supreme Court has now issued its judgment in this important case for Coroners and inquests dealing with the standard of proof to be applied where the death might have been caused by suicide or unlawful killing.
Everyone who has done an inquest where these conclusions were realistic on the evidence has traditionally gone along with the idea that in order to be satisfied that either conclusion should be returned the criminal standard of proof was required.
This is often seen in practice, particularly where suicide is concerned, as being a way for Coroners to return an open verdict where there is no positive and direct evidence that the deceased intended to take his or her life, even if the surrounding circumstances point clearly in that direction. Such an approach can be welcome to families grieving the loss of a family member.
However, that all changed with the judgment of the Divisional Court and then the Court of Appeal in this case (see my earlier blog post on this judgment here). This long held practice was held to be devoid of a sound legal basis and that given that the inquest was not itself a criminal proceeding then the civil standard ought to be applied. The Supreme Court has now confirmed that that is right, albeit by a majority of 3 to 2.
The result is that all forms of conclusion in the coroner’s court whether narrative or short form are to be rendered on the balance of probabilities. This includes suicide and unlawful killing.
Artificial intelligence (AI) aims to mimic human cognitive functions. It is bringing a paradigm shift to healthcare, powered by increasing availability of healthcare data and rapid progress of analytics techniques. Robert Kellar QC of 1 Crown Office Row joins Rosalind English in the latest episode of Law Pod UK to answer some pertinent questions about the application of AI in healthcare and what it means for clinical negligence and other forms of litigation and regulation in medicine.
Will we come to a point when healthcare providers will be under a duty of care to use Artificial Intelligence? At some point the argument is likely to be raised that the advantages of AI are so stark that it would be illogical or irresponsible not to use it. What would this mean for the Bolam test? And for the courts – a judge hearing a clinical negligence case where the issues turn on algorithms may need to be more familiar with computer programming than with medical practice.
Hear these and more fascinating and not too far fetched points in discussion in Episode 130.
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