17 May 2017 by Rosalind English
ABC v St George’s Healthcare NHS Trust and Others [2017] EWCA Civ 336 – read judgment
All the advocates in this case are from 1 Crown Office Row. Elizabeth-Anne Gumbel QC, Henry Witcomb QC and Jim Duffy for the Appellant, and Philip Havers QC and Hannah Noyce for the Respondents. None of them were involved in the writing of this post.
In a fascinating twist to the drama of futuristic diagnosis, the Court of Appeal has allowed an argument that doctors treating a Huntington’s patient should have imparted information about his diagnosis to his pregnant daughter to go to trial.
The background to this case is outlined in my earlier post on Nicol J’s ruling in the court below. A patient with an inherited fatal disease asked his doctors not to disclose information to his daughter. The daughter came upon this information accidentally, shortly after the birth of her child, and found, after a genetic test, that she suffered from this condition as well, which has a 50% chance of appearing in the next generation. Had she known this, she would have sought a termination of the pregnancy. She claimed that the doctors were liable to her in damages for the direct effect on her health and welfare.
A claim for “wrongful birth” is well established in law; no claim was made on behalf of the child, who was too young to be tested for the condition. The twist is the duty of secrecy between doctor and patient, which has held very well for the past two centuries. Short of confessions pertaining to homicide or information regarding contagious diseases, the dialogue behind the consulting door should end there.
The problem is that the typical medical relationship only pertains to the pathology of the individual patient. Now that tests are available that make every single one of us a walking diagnosis not only for our own offspring but those of our siblings and their offspring, the one-to-one scenario collapses, along with the limited class of people to whom a doctor owes a duty of care. The pregnant daughter who came across the information about her father’s condition was not the defendant doctor’s patient. In pre-genetic days, that meant there was no duty of care relationship between her father’s doctors and her. But the certainty of hereditability brings her into that circle.
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16 May 2017 by Sarah Ewart
IN THE NEWS
Three women, including a mother and her daughter, have been charged with conspiracy and attempt in the first all-female terror plot in the UK. This accolade means it is sure to be feverishly anticipated by the press when the charges reach the Old Bailey on May 19th.
The Children’s Society is looking for evidence on the impact of LASPO (2012) on unaccompanied migrant children, and are calling for the participation of legal practitioners in a survey which can be found here. Evidence would be used in the pending review of LASPO and in a strategic litigation case intended by the Children’s Society to bring unaccompanied migrant children under the auspices of legal aid. For more information contact Dr Helen Connolly at helen.connolly@beds.ac.uk or Richard Crellin, Policy Manager at the Children’s Society at richard.crellin@childrenssociety.org.uk.
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16 May 2017 by David Hart KC
R (ClientEarth) v Secretary of State for Environment, Food & Rural Affairs, Garnham J, 27 April 2017, judgment here
Last November (here) the judge decided that the UK’s air pollution plans under EU and domestic laws were not good enough. The case has a long, and unedifying back-story of Government not doing what the law says it should do – see the depressing list of posts at the bottom of this post.
The pollutant was nitrogen dioxide, a product of vehicle exhaust fumes. And as the judge reminded us in this latest instalment, the Department for Transport’s own evidence suggests that 64 people are dying everyday as a result of this pollutant.
The particular issue might seem legally unpromising. Government wanted to delay the publication of its latest consultation proposal from 24 April 2017 (the date ordered by the judge last November) until after the Council elections on 4 May, and, then, once the general election had been called, until after 8 June 2017. It accepted that it had its report drafted, but did not want to release it.
But the only justification for the delay was Purdah.
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10 May 2017 by David Hart KC
Poshteh v Royal Borough of Kensington & Chelsea S [2017] UKSC 36, 10 May 2017 – read judgment
For the last 15 years, whether the right of the homeless to suitable council accommodation is an Art.6(1) ECHR civil right has been argued over in the courts. And the question arose again in today’s judgment of the Supreme Court.
Ms Poshteh had been imprisoned and tortured in Iran, and asked her local council in London to house her as she was homeless in the UK. She then rejected the offer of a flat because she said its windows reminded her of those in her Iranian prison cell. This rejection was held fatal to her housing claim, as we shall see.
To understand the Art.6 point, we need to have a quick look at the council’s housing duties for the homeless.
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8 May 2017 by Thomas Beamont
A new report has argued that the practice of turning back asylum seeker boats at sea is illegal under international law, and does not deter others from making the journey.
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6 May 2017 by David Hart KC
R (o.t.a T) v. HM Senior Coroner for West Yorkshire [2017] EWCA 187 (Civ), 28 April 2017 – read judgment
A sad story of human frailty posed two difficult problems for the Coroner, and the Court of Appeal.
A 19-year old mother went into hospital, with a shoebox. In the shoebox was the 6-days dead body of her daughter. She told the hospital and the police that she had been raped, hence the shame about reporting the death. She had given birth in her bedroom at home, and she said that the baby had been cold when born.
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6 May 2017 by Rosalind English
We have finished an overhaul of the Convention rights pages to reflect recent political and legal developments since they were last reviewed. The most important of these is the vote to leave the European Union and what implications this might have for the UK’s obligations under the European Charter of Fundamental Rights and Freedoms. For the moment I have left in place the editorial material matching each of the Charter rights with the Convention rights but the Charter and the role of the ECJ in UK legal affairs may be one of the first features of the post-Brexit landscape to change (see Marina Wheeler’s post on how that court might have overstepped the mark with the Charter, and David Hart’s discussion on the topic of ECJ muscle-flexing here, here and here).
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4 May 2017 by David Hart KC
R (o.t.a P & others) v. Secretary of State for Home Department & others [2017] EWCA Civ 321, Court of Appeal, 3 May 2017 – read judgment
The Court of Appeal has upheld challenges to the system of the police retaining information about past misconduct. It held that the system, even after a re-boot in 2013 in response to an earlier successful challenge, remains non-compliant with Article 8.
The problem is well summarised by Leveson P in the first paragraph of the judgment, namely the interface between a system of rehabilitation of offenders and the minimisation of risk to the public caused by the employment of those with misconduct in their pasts.
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1 May 2017 by Poppy Rimington-Pounder
The Parliamentary Assembly of the Council of Europe (PACE) has voted to reopen its monitoring of Turkey on account of its “serious concerns” regarding respect for human rights, democracy and the rule of law there. This will have come as a blow to Turkey; the country has been involved in “post-monitoring dialogue” with the Assembly since 2004 and had high hopes for its negotiations this year to join the EU.
What prompted this?
In the wake of the failed coup attempt last July there have been growing concerns over human rights abuses in Turkey. The vote was prompted in particular by a report from Ingebjørg Godskesen and Marianne Mikko, who are part of the Monitoring Committee and have been co-rapporteurs for the post-monitoring dialogue with the country. Since the coup, Turkey has declared a state of emergency and made large-scale use of decree laws (which bypass parliamentary procedures). While the Monitoring Committee recognised the ongoing trauma and terrorist threats following the coup, it nevertheless registered concern over the large-scale and disproportionate implementation of such measures.
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24 April 2017 by Sarah Ewart
IN THE NEWS THIS WEEK
With election fever well and truly afflicting the exhausted electorate again, Gina Miller, of Article 50 fame, has launched a tactical voting initiative to back candidates who will “commit to keeping the options open for the British people.” The crowd-funding campaign, rousingly named “Do what’s best for Britain!”, reached and surpassed its £135k goal in just 24 hours. It’s not the first initiative of its kind: moreunited.co.uk contributed to the Lib Dem success in the Richmond Park by-election, and has doubled its crowd-funding target after raising more than £50k in the 48 hours since the announcement of the general election. Neither initiative is allied to a particular party: instead, they aim to support individual candidates sympathetic to their values.
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18 April 2017 by Thomas Beamont
The Court of Appeal last week partially granted an application for judicial review of the cuts to Legal Aid in certain categories of prison law. The judgment may change the face of legal representation for prisoners across the UK.
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13 April 2017 by Rosalind English
Conway, R(on the application of) v The Secretary of State for Justice[2017] EWCA Civ 275
The Court of Appeal has overturned the refusal of the Divisional Court to allow a motor neurone disease sufferer to challenge section (1) of the Suicide Act. He may now proceed to seek a declaration under section 4(2) of the Human Rights Act 1998 that the ban on assisted dying is incompatible with the European Convention on Human Rights. The background to this appeal can be found in my post on the decision from the court below, which focussed on the vigorous dissent by Charles J.
Briefly, Mr Conway wishes to enlist the assistance of a medical profession to bring about his death in a peaceful and dignified way at a time while he retains the capacity to make the decision. His family respect his decision and choices and wish to support him in every way they can, but his wife states she would be extremely concerned about travelling to Switzerland with Mr Conway so he can receive assistance from Dignitas.
The main argument in support of the permission to appeal was that it was self-evident from the division of opinion in the Divisional Court that there would be a realistic prospect of success. Mr Conway’s legal team also argued that the issues raised about Mr Conway and those in a similar position to him were of general public importance and that this was a compelling reason for the appeal to be heard.
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10 April 2017 by Poppy Rimington-Pounder
Chemical attacks in the northern Syrian province of Idlib have left at least 80 dead and 100 more injured. It has been reported that in a raid last Tuesday morning Syrian government planes exposed countless civilians in the town of Khan Sheikhun to toxic gas, suspected to be sarin. While Syrian President Bashar al-Assad denies claims that he is the author of these attacks, outrage has erupted across the world, which culminated in US President Donald Trump commencing airstrikes on Syria.
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10 April 2017 by Adam Wagner
RightsInfo, the UK Human Rights Blog’s sister site, is looking for new volunteer writers. Do you have a passion for human rights and can you write about law for a lay audience? If so, please apply! All details below, via RightsInfo.
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We’ve had a cracking start to the year, covering all the biggest human rights news from Brexit developments to the London terror attack, Tory MPs who say we must stay in the Human Rights Convention to why the Tampon Tax is a human rights issue.
Most of what we produce is written by our amazing volunteer team. To support our news coverage further, we’re seeking new volunteers to write for RightsInfo. We are looking for people with excellent writing skills and a good knowledge and understanding of UK human rights law. If you’re keen on British politics, Brexit or human rights in practice then all the better!
We particularly need people who have time to work on more responsive pieces mid-week as part of our news rota, but we’d love to hear from you even if that’s not you.
If you’d like to apply, send us:
- a brief statement on why you would be a good volunteer (max. 100 words)
- a summary in 150 words or fewer of this recent ‘right to die’ case, aimed at a lay audience – no legalese please!
- an indication of whether you would be able to be ‘on call’ one day per week to help us respond to breaking human rights news and, if so, which day of the week you would be able to cover
- All in the body text please – no attachments and no C.V.s please!
Please email your application to info@rightsinfo.org no later than 10pm on Sunday 30th April with the subject line “Volunteer application – [NAME]” and with the case summary and other information all in the body text of the email. We regret that due to the high number of candidates expected, we cannot give individual feedback.
We look forward to hearing from you – good luck!
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7 April 2017 by Guest Contributor
AB (Appellant) v Her Majesty’s Advocate (Respondent) (Scotland) [2017] UKSC 25 – read judgment
This week the Supreme Court ruled handed down its judgment on the legality of section 39(2)(a)(i) of the Sexual Offences (Scotland) Act 2009.
Section 39(1)(a) of the 2009 Act allows a person accused of sexual activity with an under-age person to rely on the defence that, at the time, he or she believed that the under-age person was in fact over the age of 16. Section 39(2)(a)(i), however, deprives the accused of this defence where he or she has previously been charged by the police with a ‘relevant sexual offence’. The relevant sexual offences are set out in Schedule 1 of the 2009 Act.
The appellant argued that s.39(2)(a)(i) of the 2009 Act is not compatible with the European Convention on Human Rights (“the Convention”). If a Scottish Act is incompatible with a right under the Convention, in accordance with section 29 of The Scotland Act 1998, it is outwith the competence of the Scottish Parliament and therefore not law. It was submitted that section 39(2)(a)(i) was incompatible with Article 6 (right to a fair trial), Article 8 (right to privacy and family life) and Article 14 (prohibition on discrimination) of the Convention.
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