Spencer v Anderson (Paternity Testing)  EWHC 851 (Fam) – read judgment
A fascinating case in the Family Division throws up a number of facts that some may find surprising. One is that this is the first time the courts in this country have been asked to direct post-mortem scientific testing to establish paternity. The other is that DNA is not covered by the Human Tissue Act, because genetic material does not contain human cells. One might wonder why the statute doesn’t, given that DNA is the instruction manual that makes the human tissue that it covers – but maybe updating the 2004 law to cover genetic material would create more difficulties than it was designed to resolve.
The facts can be briefly stated. The applicant had been made aware of his possible relationship to S, who had died of bowel cancer some years before. When S had presented with the disease, it turned out that there was a family history of such cancer. The hospital treating him therefore took a blood sample and extracted DNA from it to test for high-risk genes. If the applicant was the son of the deceased he would have a 50% risk of inherited predisposition to bowel cancer. This risk would be mitigated by biannual colonoscopies. Continue reading →
This article was first published on the UK Labour Law Blog ( @labour_blog). We repost it with the kind permission of Dr Philippa Collins (@DrPMCollins at Exeter University)and the editors of the Labour Law Blog
One of the lasting impacts of the COVID-19 pandemic upon the world of work is likely to be a move away from the traditional workplace. In some sectors, such as academia, IT, and administration, remote work or home working is an established working pattern, although a rare one given national statistics from 2019 which indicated only 5% of the workforce worked mainly from home. The need to prevent the spread of the coronavirus through contact in the workplace precipitated a rapid and widespread move to homeworking. In an ONS survey in early May, 44% of adults surveyed were working from home. As some businesses begin to transition back into their previous working patterns, several high-profile companies have announced that they will not expect their staff to return to the workplace and will support homeworking as a permanent option in the future.
The sequel to this Scottish judicial review decision in Sustainable Shetland, (Lady Clark of Calton, read judgment, and my post) is another unedifying example of executive government ignoring courts when it suits them.
In this case, the judge (a former Law Officer in Scotland) quashed the grant of a wind farm consent, for two reasons, the relevant one being that the wind farmer could not apply for the consent anyway because it had not got the requisite licence which was a pre-condition for such an application. Readers will recall that Scottish Ministers had also resisted the highly controversial planning appeal being heard at public inquiry – or the Scottish equivalent.
If you are an ordinary citizen, and you get an adverse judgment, you can only do one thing – appeal it and wait for the decision on appeal. The Scottish Ministers plainly do not like the decision. They have sought to reverse it by a legislative amendment, which did not find favour in the House of Lords. But, rather less attractively, they are simply ignoring the decision pending that appeal on the basis that it is wrong. Judges, rather than ministers, might be thought to be a reasonable judge of that. But the Scottish Ministers think not.
Updated | A new bill which seeks to reform the powers of the police also seeks to make it harder to issue private arrest warrants for universal jurisdiction offences, such as war crimes, torture and hostage taking,
The controversial change would mean that they can only be issued where there is a reasonable prospect of a successful prosecution (see our previous post).
The High Court has struck out a claim that the disclosure of certain personal information made by a charity to the claimant’s GP was unlawful. Although only summary, this judgment goes to the heart of what we believe data protection to be about. As you will tell from my somewhat trenchant comments at the end of this post, I find it difficult to accept the main conclusion in this ruling.
The LGBT Foundation provides services including counselling and health advice. The claimant sought to access the charity’s services by completing a self-referral form in 2016. The form gave an option for the self-referring individual to consent to information being disclosed to their GP, and stated that the charity would break confidentiality without the individual’s consent if there was reason to be seriously concerned about their welfare. Mr Scott gave his GP’s details in the form. He also stated in the form that he no longer wished to be alive, detailed a previous suicide attempt, said that he had recently been self-harming and that he continued to suffer problems from drug use.
A sessional health and wellbeing officer at the charity conducted an intake assessment for Mr Scott to ascertain what support would be best for him. She told him of the confidentiality policy, including the provision that any information he disclosed would be passed on if the charity considered him to be at risk. In this interview he gave further details of drug use, self-harm and suicidal thoughts. The health officer paused the assessment and consulted a colleague, who advised her to inform Mr Scott that they would be contacting his GP because they had concerns about his welfare. The charity concluded it was at that time unable to provide him with the services he sought from them because of his ongoing drug use. They passed the information on to Mr Scott’s GP via a telephone call. This information was in due course recorded in his medical records.
The Human Rights Committee, reviewing NHSX’s current digital contact tracing app architecture, has recommended that the government’s current privacy assurances are not sufficient to protect data privacy and that legislation must be passed to ensure that. This echoes Professor Lilian Edwards’ call for primary legislation to ensure privacy rights are protected. These recommendations are given special significance NHSX’s choice to adopt the controversial and arguably less secure “centralised” model (an explanation of the different contact tracing models and Prof Edwards’ suggested legislation can be found here).
Monday was England’s so-called ‘Freedom Day’, with the final coronavirus restrictions lifted. This means nightclubs can reopen; bars are no longer table service only; there are no more limits on attendee numbers at large events; and it is no longer mandatory to wear face coverings in public spaces, although the recommendation to do so remains. It also remains a legal obligation to self-isolate if contacted to do so by NHS Test and Trace, although it is not mandatory to download the NHS Covid-19 app, or to self-isolated if ‘pinged’ by it (i.e. alerted by the app to self-isolate). NHS Test and Trace contacts people who have been named by a positive-testing person as a close contact and are legally obliged to self-isolate or face fines from £1000 for failing to comply. By contrast, the Covid-19 app works by using Bluetooth to ‘ping’ people who may have come into close contact with a covid-positive person. A resulting ‘pingdimic’ has led to concerns about keyworker staff shortages leading to a hospital understaffing and potential supermarket food shortages. Frontline health workers can be exempt from self-isolation in exceptional circumstances, as can other keyworkers if their employers apply for and receive government authorisation specific to a named worker. From August 16th anyone who has had both vaccination doses will not need to self-isolate as a close contact.
Civil liberties organisation Liberty has expressed concerns that so-called “Freedom Day” is in fact “a moment of fear and division”. The organisation has criticised the Government for its “divisive, coercive strategies”, among which it includes “vaccine passports and mandatory vaccinations”. Vaccine passports in particular are condemned as “a step towards a two-tier society”. Despite these concerns, the organisation also expresses a worry that lifting restrictions has “serious implications” for the rights of frontline workers and the clinically vulnerable”.
In other news:
On Wednesday, the government published its Judicial Review and Courts Bill following an Independent Review of Administrative Law and a government consultation. The Bill seeks to “reform the rules around Judicial Review and facilitate a number of procedural improvements across the court system”. One of the reforms proposed is to remove Cart Judicial Reviews, which are High Court reviews of an Upper Tribunal’s refusal to grant permission to appeal. An “unprecedented” coalition of over 220 organisations, including Amnesty International UK, Greenpeace, Refugee Action and Stonewall, has criticised the Bill and proposed changes to the Human Rights Act.
On Friday the 2020 Summer Olympics began with an opening ceremony of dancers and acrobats performing to a near-empty stadium. Outside, protesters clashed with Tokyo police as Japanese citizens showed their anger at the games continuing to be held amidst the fourth declaration of an official state of emergency in Japan due to the coronavirus pandemic. In nine prefectures including Tokyo and Osaka, residents have been asked to go out for essential reasons only. In the week the Games began Japan saw numbers of Covid-19 cases not seen since January.
On Saturday the first ever “Reclaim Pride” march took place in London, with thousands taking to the streets to demand inclusive LGBTI+ rights. The event was organised amidst concerns that traditional Pride events (like London Pride, this year postponed to 11 September) are becoming less like protests and more like “over-commercialised parties”.
In the Courts:
Royal Mail Group Ltd v Efobi  UKSC 33 – the Supreme Court unanimously dismissed an appeal from Mr Efobi, a postman for the Respondent, Royal Mail. The Appellant’s claim in the employment tribunal for direct or indirect racial discrimination was dismissed but the decision was overturned on appeal to the EAT. The Court of Appeal then reversed the decision in favour of Royal Mail and Mr Efobi was granted permission to appeal to the Supreme Court. Efobi argued (i) that a change in the wording of equality legislation from “where … the complainant proves facts” to “if there are facts from which the court could decide” removed the burden on the claimant to prove anything at the first stage of employment discrimination cases, and (ii) that the EAT should have drawn adverse inferences from the absence of a potential witnesses for the Respondent Royal Mail. The appeal was dismissed on the grounds that (i) the new wording simply clarifies that evidence from both parties must be considered, not only that of the claimant and (ii) tribunals are free to draw or decline to draw inferences using common sense. Furthermore, even if adverse inferences were drawn, the recruiter’s knowledge of Mr Efobi’s race was by itself insufficient evidence of racial discrimination.
Secretary of State for the Home Department v GA & Ors  EWCA Civ 1131 –the Respondent had applied for British passports for three of her children (British citizens living in Country X) from Her Majesty’s Passport Office (HMPO), for which the Appellant is responsible. HMPO refused the applications for lack of evidence of the consent of a person with parental responsibility under the law of Country X. HMPO considered that person to be the children’s father alone. It was unsafe or impossible for the mother to obtain the father’s consent, as he had been arrested following “months of extremely serious physical and psychological abuse including torture of me.” A declaration signed by the father that he had no objection to his children travelling abroad with their mother was not accepted by HMPO as permission to grant British passports. HMPO’s passport refusal was quashed in a judicial review claim because: (i) there was no evidence to conclude that the father had to consent under the law of Country X; (ii) HMPO failed to consider the application of Article 22 of the 1996 Hague Convention; and (iii) Article 22 did apply and HMPO was entitled to refuse to apply the law of Country X. Article 22 allows the dis-application of an applicable law provision if it would be contrary to public policy, considering the best interests of the child. The Court of Appeal upheld the quashing order and refused the Appellant’s argument that HMPO was not obliged to consider, and should not have considered, Article 22. It also rejected the argument that HMPO should have asked the father alone for his consent, on the basis that the Country Profile for Country X suggested it allocates sole parental responsibility to the father. The Country Profile was insufficient evidence to conclude in this specific case that the mother had no authority to apply for British passports. Furthermore, upholding this law of Country X would be contrary to ECHR Articles 14 and 8, as it discriminates based on sex. Accordingly, the appeal was dismissed and permission to appeal was refused.
The High Court has ruled in McNally v Saunders that a retired solicitor’s ‘abrasive’ and ‘frequently puerile’ blog posts are entitled to the same level of protection as mainstream journalism. Chamberlain J struck out a harassment claim brought by a local government officer as having no reasonable prospect of success and has granted summary judgment for the defendant under CPR rule 24.2. The claim was brought under the Protection from Harassment Act 1997 by Dr Lisa McNally, MBC Sandwell’s director of public health and a mental health campaigner. McNally was the subject of five blog posts, criticising her decision to post a two-minute video about her own struggle with mental health and questioning her qualifications. She said the posts had caused her ‘crippling’ anxiety about attending meetings and made her worry about her ability to do her job. Given that Saunder’s posts’ were ’frequently puerile tone and style, a casual reader… might be surprised to discover that they are the work of a semi-retired former solicitor,’ the judge said. However ’none of these features disentitles them to the protections afforded by the law to journalistic expression.’ The public interest in McNally being able to continue in her role was outweighed by Saunders’ Article 10 right to free expression.
Would you be first in the queue for the Covid-19 vaccine if and when it is rolled out? Or would you prefer to wait and appraise its effects on more pioneering citizens? With nearly a year of widespread media coverage of the coronavirus, it would not be surprising if a large percentage of an already fearful population exercised its right not to be subjected to what would be an assault and battery under English law: medical treatment without consent.
This is a syndrome, and it has a name. It is called “vaccine hesitancy”. The WHO describes this as “the reluctance or refusal to vaccinate despite the availability of vaccines”. Our willingness to avail ourselves of a future COVID vaccine is very much in doubt, and it is in doubt in high places.
Should a Covid-19 vaccine become available at scale, we cannot expect sufficient voluntary uptake.
Update: on Tuesday 17 November the Danish government finished considering a new law giving the government extended powers to respond to epidemics. Parts of this law that propose that:
People infected with dangerous diseases can be forcibly given medical examination, hospitalised, treated and placed in isolation. The Danish Health Authority would be able to define groups of people who must be vaccinated in order to contain and eliminate a dangerous disease. People who refuse the above can – in some situations – be coerced through physical detainment, with police allowed to assist. See the Danish newsletter here. In this country, Health Secretary Matt Hancock has refused to rule out mandatory inoculation, telling talkRADIO the government would ‘have to watch what happens and… make judgments accordingly’.
condition of release from pandemic-related restrictions on liberty, including on movement and association
The authors of the report base this proposal on two “parity arguments”:
a. If Covid-19 ‘lockdown’ measures are compatible with human rights law, then it is arguable that compulsory vaccination is too (lockdown parity argument); b. If compulsory medical treatment under mental health law for personal and public protection purposes is compatible with human rights law, then it is arguable that compulsory vaccination is too (mental health parity argument).
They contend that there is “an arguable case” for the compatibility of compulsory vaccination with human rights law.
In the Chamber Judgment (currently available only in French) in the case of Lopes de Sousa Fernandes v. Portugal (App. No. 56080/13) decided just before Christmas, the European Court of Human Rights (ECtHR) held that there was both a substantive (by 5 votes to 2) and a procedural (unanimous) violation of Article 2 in the case of the death of the Applicant’s husband in circumstances where there was a negligent failure to diagnose meningitis shortly after (successful) nasal polyp surgery, even though that negligent failure was not necessarily causative. This very surprising outcome is important, and may be seen as a radical departure from the established case law of the Court on the necessary threshold for establishing an Article 2 violation in State (i.e. NHS) hospital cases. It also underlines the increased importance of informed consent in clinical negligence cases when viewed from a human rights perspective. Continue reading →
The recently released statistics from the Department for Education showing an increase of 15% in the adoption of looked after children in the last year further highlights the government’s preferred strategy for ensuring the welfare of children in care.
In my recent post, I considered the main thrust of the decision of the Court of Appeal in Re B-S which concerned the rigour which was expected of evidence, hearings and Judgments before a Placement Order was made.
However, the Court also dealt with the issue which had concerned Lord Justice McFarlane when he gave permission to appeal namely, where a Court has already made an order that a child may be placed for adoption and that has happened and the prospective adopter has applied for an Adoption Order, in what circumstances can a parent seek to stop it going ahead?
The Strasbourg Court has rejected as manifestly ill-founded a complaint that the offence of strict liability for rape of a child under 13 violated the right to a presumption if innocence under Article 6 and respect for private life under Article 8.
This admissibility decision touches a sensitive nerve in the relationship between Strasbourg and national authorities by exploring the extent to which the Convention rights should influence prosecutorial policy. Section 5 of the 2003 Sexual Offences Act creates an offence of strict liability, which means that penile penetration of a child under the age of 13 is an offence whether or not the victim gave consent and irrespective of the belief of the perpetrator regarding the victim’s age. This is because the law regards the attitude of the victim of this behaviour as irrelevant to the commission of the offence; even if a child under 13 is fully capable of understanding and freely agreeing to such sexual activity, the law says that it makes no difference. He or she is legally disabled from consenting. Although absence of consent is not an ingredient of the offence, presence of consent is, material in relation to sentence which under Section 5 of the 2003 Act can range from absolute discharge to life imprisonment. Continue reading →
CM v The Executor of the Estate of EJ (deceased)  EWHC 1680 (Fam) – read judgment
You would have thought the law would be entirely behind a person who intervenes to help a stranger in distress. Indeed most civil law countries impose a positive duty to rescue, which means that if a person finds someone in need of medical help, he or she must take all reasonable steps to seek medical care and render best-effort first aid. A famous example of this was the investigation into the photographers at the scene of Lady Diana’s fatal car accident: they were suspected of violation of the French law of “non-assistance à personne en danger” (deliberately failing to provide assistance to a person in danger), which can be punished by up to 5 years imprisonment and a fine of up to 70,000 euros. But the position in common law countries like the UK and the United States is completely different: you can watch a child drown and not be held to account.
Of course no good citizen would do such a thing and in this case the claimant, a medical doctor, went out of her way to try to save the life of someone in extremis. She was driving home, off duty, in South East London, when she saw a body lying motionless on the pavement. Continue reading →
Disgraced surgeon Ian Paterson’s sentence has been referred to the Court of Appeal under the Unduly Lenient Sentence Scheme. Paterson was jailed for 15 years in May, having been found guilty of 17 counts of wounding with intent and three of unlawful wounding. The breast surgeon was accused of negligence in performing so-called ‘cleavage-sparing mastectomies’, an unapproved procedure leaving tissue behind for cosmetic reasons and for some women leading to the return of their cancer, and furthermore, of carrying out unnecessary operations where a simple biopsy would have sufficed.
The Unduly Lenient Sentence Scheme was also in the news this week when the Ministry of Justice announced that 19 terror offences would be incorporated, including encouraging terrorism and sharing terrorist propaganda. The Scheme allows anyone to refer a sentence that they feel was lenient to the Attorney-General, who has the power to refer it to the Court of Appeal for reconsideration. Continue reading →
R (o.t.a HS2AA, Buckingham County Council and others) v. Secretary of State for Transport,  UKSC 3 – read judgments
So the challenge to the way in which the Government wished to push the HS2 project through Parliament has failed before the Supreme Court, though not without clarifying the way in which key EU environmental provisions are meant to work. And we will also see a further flexing of the Court’s muscles against a too straightforward reading of the supremacy of EU law when seen against our constitutional principles.
The objectors said the command paper which preceded the Parliamentary hybrid bill, in which the Government set out its proposals for HS2, fell within the scope of the Strategic Environmental Assessment Directive 2001/42/EC and that an SEA ought therefore to have been carried out. The directive applies to plans or programmes which set a “framework” (Art.3(2)(a)) for future decisions whether to grant development consent for projects, and it was said that the command paper set the framework for the decision whether to grant consent for HS2.
Secondly, the objectors said that the legislative procedure in Parliament does not meet the requirements of the Environmental Impact Assessment Directive 2011/92/EU. The EU Court of Justice has interpreted that directive as imposing a number of requirements, including that the legislature must have available to it the information required by the directive, and a requirement that national courts must be able to verify that the requirements of the directive have been satisfied, taking account of the entire legislative process, including the preparatory documents and the parliamentary debates. Continue reading →
Meiklejohn v St George’s Healthcare Trust  EWHC 469 (QB) – read judgment
Richard Booth of 1 Crown Office Row acted for the claimant in this case. He is not the author of this post.
There is no doubt that medical diagnosis and therapy are struggling to keep pace with the genetic information pouring out of the laboratories and sequencing centres. And the issue of medical liability is being stretched on the rack between conventional treatment and the potential for personalised therapy. Treatment of disease often turns out to be different, depending on which gene mutation has triggered the disorder. However fine tuned the diagnosis, it may turn out to be profoundly wrong in the light of subsequent discoveries.
This is perhaps an oversimplified characterisation of what happened in this case, but it exemplifies the difficulties facing clinicians and the courts where things go wrong, against the backdrop of this fast-moving field of scientific endeavour. Continue reading →
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