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10 January 2019 by Rosalind English
ARB v IVF Hammersmith & Another [2018] Civ 2803 (17 December 2018) – read judgment
Legal policy in the UK has traditionally prohibited the granting of damages for the wrongful conception or birth of a child in cases of negligence. In this case the Court of Appeal has confirmed that this bar is equally applicable to a wrongful birth arising from a breach of contract.
The facts of the case are set out in my podcast on the first instance decision (Episode 12 of Law Pod UK). Briefly, an IVF clinic had implanted the claimant father’s gametes into his former partner without his consent. This occurred after the couple had sought fertility treatment at the clinic resulting in the birth of a son some years previously. Following standard practice, the clinic froze five embryos made with their gametes. Subsequently, the couple separated. Some time after this separation the mother, R, attended the clinic without ARB and informed the staff that they had decided to have another child. The form requiring consent from ARB for thawing and implanting the embyro was signed by R, and the clinic failed to notice the forgery. R went on to give birth to a healthy daughter, E, who is now the sibling of ARB’s son. There is a Family Court order confirming parental responsibility and shared residence in respect of both children.
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15 March 2013 by David Hart KC
R (o.t.a Buckingham County Council and others) v. Secretary of State for Transport, 15 March 2012, Ouseley J – read judgment – Updated
In a 259-page judgment, Ouseley J has today rejected all but one of the challenges brought to the Government’s plans for HS2. This is the proposed high speed rail link to Birmingham, and potentially beyond. The host of challengers (including local authorities, local residents and action groups (under the umbrella of HS2AA), and – wait for it – Aylesbury Golf Club) brought a host of challenges – 10 in all, of which 9 were unsuccessful. I shall do my best to summarise those of wider interest.
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11 September 2015 by Rosalind English
A and others (In the matter of the Human Fertilisation and Embryology Act 2008) – read judgment
This case is best summed up in Sir James Munby’s own words:
This judgment relates to a number of cases where much joy but also, sadly, much misery has been caused by the medical brilliance, unhappily allied with the administrative incompetence, of various fertility clinics. The cases I have before me are, there is every reason to fear, only the small tip of a much larger problem.
These cumulative cases
must raise questions as to the adequacy if not of the Human Fertilisation and Embryology Authority’s regulation then of the extent of its regulatory powers. That the incompetence to which I refer is, as I have already indicated, administrative rather than medical is only slight consolation, given the profound implications of the parenthood which in far too many cases has been thrown into doubt. This is a matter I shall return to at the end of this judgment.
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21 October 2015 by Rosalind English
KW (by her litigation friend) and others v Rochdale Council (Court of Appeal) [2015] EWCA Civ 1054 – read judgment
This was an appeal against a ruling by Mostyn J in the Court of Protection concerning a consent order between an incapacitated woman, the appellant, and the local authority ([2015] EWCOP 13). The judge had held that the 52 year old appellant, who had been severely incapacitated following surgery, had not been subject to deprivation of liberty contrary to Article 5 of the European Convention on Human Rights by her 24 hour care package. In his view, the test for deprivation of liberty in Cheshire West and Chester Council v P [2014] UKSC 19 did not apply. In paragraph 17 of his judgment Mostyn J remarked that it was impossible to see how the protective measures in place for KW could linguistically be characterised as a “deprivation of liberty”. Quoting from JS Mill, he said that the protected person was “merely in a state to require being taken care of by others, [and] must be protected against their own actions as well as external injury”. At para 25, he said that he found that KW was not “in any realistic way being constrained from exercising the freedom to leave, in the required sense, for the essential reason that she does not have the physical or mental ability to exercise that freedom”.
He therefore ordered that it was in KW’s best interests to reside at the address at which she was residing and to receive a package of care in accordance with her assessed needs. The Court of Appeal upheld her appeal against this ruling, holding that the judge had been bound by Cheshire West and had made a material error of law.
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26 January 2017 by Jim Duffy
In the new age of alternative facts, even Sean Spicer might struggle to spin Tuesday’s Supreme Court judgment as anything other than a comprehensive defeat for the government.
Yet, as my colleague Dominic Ruck Keene’s post alluded to, the ultimate political ramifications of Miller would have made the Article 50 process appreciably more turgid had the Justices accepted the various arguments relating to devolution.
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1 July 2016 by Rosalind English
M, R (on the application of) Human Fertilisation and Embryology Authority [2016] EWCA Civ 611 (30 June 2016)
The Court of Appeal has ruled that a 60 year old woman may use her daughter’s frozen eggs to give birth to her own grandchild. Her daughter, referred to as A in the judgment, died of cancer at the age of 28 in 2011. The High Court had dismissed M’s argument that the HFEA had acted unlawfully by refusing to allow the eggs to be exported to a fertility clinic in the United States where an embryo would be created using donor sperm, and implanted in the mother.
The HFEA is bound by statute (the 1990 Human Fertilisation and Embryology Authority Act) to provide services using a person’s gametes only where that person consents. The difficulty here was that while A had consented to treatment for egg removal and storage, including storage after her death, she had not completed a specific form giving details of the use that was now proposed.
The essence of the appellants’ challenge was there was “clear evidence” of what A wanted to happen to her eggs after she died. “All available evidence” showed that she wanted her mother to have her child after her death, the Court was told.
Arden LJ, giving the judgement of the court, found that the judge below had reached his conclusion on the basis of a “misstatement of certain of the evidence” about A’s consent by the Committee.
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8 November 2010 by Guest Contributor
Updated | On 5 November 2010 judgment was handed down in JIH v News Group Newspapers ([2010] EWHC 2818 (QB)) – Read judgment.
Update, 18 November 2010: The case has returned to the High Court after the Daily Telegraph reported a key detail relating to JIH’s identity. This was contrary – said JIH – to the court order. Mr Justice Tugendhat refused the application by JIH that his/her identity not be disclosed. However, he did sound a warning that “editors and publishers have regard to the “duties and responsibilities” referred to in Art 10(2) itself. These duties and responsibilities include a requirement that they comply with orders of the court, and that they take all necessary steps to ensure that journalists understand this necessity.” If they ignore that warning, warned the judge, they may be found in contempt of court.
This post by Mark Thomson first appeared on the media law blog Inforrm, and is reproduced with permission and thanks
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13 November 2025 by Clare Ciborowska
Re B and C v D and H (Anonymous Surrogacy) [2025] EWFC 366
Put simply, intended parents should avoid embarking on a surrogacy arrangement where they do not meet, have any knowledge of or means of contacting the surrogate who carries their much wanted child. (Mrs Justice Theis DBE)
This case concerned an application by intended parents for a parental order in respect of an 18-month-old child following a surrogacy arrangement with a surrogate in Nigeria whom neither of the intended parents had met and about whom they had no information.
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29 July 2016 by David Scott
The Christian Institute and others (Appellants) v The Lord Advocate (Respondent) (Scotland) [2016] UKSC 51 – read judgment here
The Supreme Court has today unanimously struck down the Scottish Parliaments’s Named Persons scheme as insufficiently precise for the purposes of Article 8, overturning two previous decisions at the Court of Session (see our previous coverage here).
by David Scott
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22 December 2021 by Jonathan Metzer
And so we come to the end of another year. The Covid-19 pandemic has continued to dominate the news, particularly with the very concerning surge of the Omicron variant this month. Many reading this will be separated from loved ones over Christmas. The year has also seen the return to power of the Taliban in Afghanistan after the US withdrawal at the end of August, the resumption of military rule in Myanmar and the ongoing persecution of the Uyghurs by the Chinese government, this year recognised by the House of Commons and the US government (as well as many other bodies and organisations) as constituting a genocide. So, one could say that this year has rivalled last year for infamy.
And yet, any year contains light as well as darkness. Also in 2021, researchers at Brown University successfully transmitted brain signals wirelessly to a computer for the first time (hopefully a breakthrough in treatment for paralyzed people), 124,000 new trees were planted in Sumatra as part of reforestation efforts, the WHO gave approval for widespread use of a groundbreaking malaria vaccine and almost nine billion Covid vaccinations have so far been administered worldwide since the first dose given in the UK 12 months ago, for a virus which only arrived 12 months before that.
But what, I hear you ask, about the law? As always, this year has been packed with fascinating and important legal developments — many of which you may have caught, but some of which may have passed under the radar. And so, please refresh your glass (or mug) and join me on another adventure as we review the 10 cases that defined 2021.
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5 December 2012 by Rosalind English
X v Facebook Ireland Ltd [2012] NIQB 96 (30 November 2012) – read judgment
This fascinating case comes to light in the midst of general astonishment at the minimal attention paid in the Leveson Report to the “wild west” of the internet and the question of social media regulation.
This short judgement demonstrates that a careful step by step judicial approach – with the cooperation of the defendant of course – may be the route to a range of common law tools that protect individuals from the internet’s incursions in a way which no rigidly formulated statute is capable of doing. As the judge observed mildly,
The law develops incrementally and, as it does so, parallels may foreseeably materialise in factually different contexts.
Background to the case
The plaintiff (XY) sought an injunction requiring Facebook to remove from its site the page entitled “Keeping Our Kids Safe from Predators”, alternatively requiring Facebook to monitor the contents of the aforementioned page in order to prevent recurrence of publication of any further material relating to the Plaintiff and to remove such content from publication forthwith.
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30 October 2016 by David Hart KC
On 27 October 2016, the Royal College of Surgeons issued some guidance (here) on obtaining consent in the light of the 2015 Supreme Court decision in Montgomery (judgment here, my post here).
The angle of the guidance is obvious, not simply addressed to its member surgeons, but to the NHS to persuade it to allow enough time for surgeons to consent patients properly. And the “steel” in its message was that there would be a significant hike in the bill which would be paid by the NHS for successful claims if consent was not taken properly in future.
Most readers will know the importance of Montgomery. It reversed Sidaway, 30 years before, which said that it was for doctors to decide how much to tell patients about the risks of treatment, and, if what the patient was told was in line with what other doctors would say (the Bolam principle), no claim would lie. So, per 1980s law, the quality of consent should be determined by medical evidence rather than what the individual patient could reasonably expect to be told.
Montgomery strongly disagreed. Patients have their own autonomy. They differ in their appreciation of surgical risks, and the impact that the occurrence of the risk might have upon their particular lives. The point is well illustrated by an example in the RCS press release. Bypass surgery carries the possibility of loss of sensation in the hand, which may be a minor risk for many patients but very important to, say, a pianist. Why should a clinician be able to advise a patient in the abstract, without knowing whether they have a pianist before them?
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24 September 2016 by David Hart KC
Dr DB v. General Medical Council [2016] EWHC 2331 (QB), 23 September 2016, Soole J – read judgment
An interesting three-way privacy fight between a GP, a patient who had complained about his treatment by the GP, and the GMC who had investigated that complaint. The prize in that fight was a copy of a medical report obtained by the GMC from an independent expert, which had concluded that the GP’s care had fallen below “but not seriously below” the expected standard.
The patient had wanted a copy of the report; all he had seen so far was a one-page summary. His motive was to investigate a possible claim for clinical negligence, arising out of the delayed diagnosis of his bladder cancer. The GP refused consent.
The GMC then concluded it should disclose the report to the patient. And the GP brought these proceedings to stop disclosure.
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28 May 2010 by Adam Wagner
General Dental Council v Rimmer [2010] EWHC 1049 (Admin) (15 April 2010) – Read judgment
A dentist has been ordered to hand over his patients’ medical records to a court in order to help his regulator prosecute him for misconduct. The case raises interesting questions of when the courts can override patient confidentiality which would otherwise be protected by the Human Rights Act.
When health professionals are being prosecuted for misconduct,their patients’ confidential records will almost invariably be disclosed to the court if requested, even without the patients’ consent. Some may find this surprising, given the fact that medical records almost invariably contain highly private and potentially embarrassing information which a person would justifiably not want disclosed in a public court. However, the situation is not as simple as it first appears, as demonstrated by the recent case of an allegedly dodgy dentist.
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21 April 2010 by Rosalind English
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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