COVID-19 has changed many things about society, and one of the most significant is the erosion of the taboo surrounding death. After all, we have daily bulletins on death figures. As Dignity in Dying Sarah Wootton says, in her forthcoming book “Last Rights”,
The coronavirus pandemic has thrust death and dying into the mainstream.
This sensitive and compassionate judgment by Hayden J following a remote hearing of the Court of Protection is therefore worth our attention, as we all become more aware of how acutely things slip out of our control, not least of all our health.
The application from the Trust concerned a 34-year-old man (MSP) who has had significant gastrointestinal problems for approximately 10 years, requiring repeated invasive surgery. At the time of the hearing he was unconscious and on life support in ICU. The issue framed in the application was whether the Trust should continue to provide ITU support or withdraw treatment other than palliative care.
Between 2013 and 2020 MST underwent significant abdominal surgery and had a stoma inserted in 2018. The court noted that he “utterly loathed” life with a stoma. He did express his consent to the stoma being inserted at the time, but this consent seemed entirely contrary to his unambiguous rejection of this procedure, expressed bluntly to three consultants with whom he had discussed it. It also appeared entirely inconsistent with everything he had said to his mother, father and step-sister on the point.
Significantly, on 4th February 2020 MSP had written a carefully crafted Advance Directive which he had copied to his parents and to his step-sister. Outside the hospital setting these were the only three people who knew MSP had a stoma. He did not even wish his grandmother to be told. In this Advance Directive he stipulated, among other things, that he would refuse the “formation of a stoma, through an ileostomy, colostomy, urostomy or similar, that is expected to be permanent or with likelihood of reversal of 50% or under”.
The UK government has submitted its argument in the case which may settle whether Members of Scottish Parliament could legislate for a vote on Scottish independence without Westminster’s backing. The submission from the Advocate General precedes a full hearing on 11 and 12 October when oral arguments will be heard. The Supreme Court will rule on whether Holyrood alone has the power to hold an independence vote, which First Minister Nicola Sturgeon wants to hold on 19 October 2023. Last month, the Scottish government published its own case, arguing the referendum is ‘advisory’ and would have no legal effect on the union.
The House of Commons Women and Equalities Committee published a report on 4 August recommending the government should improve legal protections for unmarried couples by introducing an opt-out cohabitation scheme proposed by the Law Commission in 2007. The scheme aims to protect eligible cohabitants who are economically vulnerable, preserve individual autonomy, maintain a distinction with marriage and civil partnership, and provide certainty about who qualifies as a cohabitant. The committee said the government should commit to publishing draft legislation for scrutiny in the 2023-24 parliamentary session.
On 10 August, Suella Braverman delivered a speech for the Policy Exchange’s Judicial Power Project stressing the need for the government to better clarify the scope of fundamental rights. She called to curb the influence of the European Court of Human Rights, citing the ‘intensive standard of proportionality under the Human Rights Act’. The speech dealt with issues including the Equality Act, Single Sex Spaces- specifically in schools- convention rights and illegal migration.
McCord, Re Judicial Review  NIQB 85 (28 October 2016) – read judgment
A challenge to the legality of the UK’s departure proceedings from the EU has been rejected by the High Court in Northern Ireland. In a judgment which will be of considerable interest to the government defending a similar challenge in England, Maguire J concluded that the UK government does not require parliamentary approval to trigger Article 50 of the Lisbon treaty. This is, par excellence, an area for the exercise of the government’s treaty making powers under the Royal Prerogative.
This ruling was made in response to two separate challenges. One was brought by a group of politicians, including members of the Northern Ireland assembly, the other by Raymond McCord, a civil rights campaigner whose son was murdered by loyalist paramilitaries in 1997. They argued that the 1997 peace deal (“the Good Friday Agreement”) gave Northern Ireland sovereignty over its constitutional future and therefore a veto over leaving the EU. Like the English challengers, they also argued that Article 50 could only be invoked after a vote in Parliament.
At centre stage in the English case is the means by which Article 50 TEU is to be triggered and the question of the displacement of prerogative executive power by statute. While this issue was also raised in the challenge before the Northern Ireland court, Maguire J also had before him a range of specifically Northern Irish constitutional provisions which were said to have a similar impact on the means of triggering Article 50. To avoid duplication of the central issues which the English court will deal with, this judgment concerned itself with the impact of Northern Ireland constitutional provisions in respect of notice under Article 50.
However, the judge had some clear views on the role of prerogative powers in the Brexit procedure, which, whilst respecting the outcome of the English proceedings, he did not hesitate to set out. Continue reading →
Rocknroll v News Group Newspapers Ltd  EWHC 24 (Ch) – Read judgment
Earlier this month, Rocknroll came to the Chancery Division. Mr Justice Briggs set out his reasons yesterday for granting Kate Winslet’s new husband an interim injunction prohibiting a national newspaperfrom printing semi-naked photographs of him taken at a party in July 2010 and later posted on Facebook.
In Edward Rocknroll v. News Group Newspapers Ltd, the Judge decided that the Claimant was likely to succeed at a full trial in establishing that his right to respect for his family life (protected by article 8 of the European Convention on Human Rights) and his copyright over the photographs should prevail over The Sun’s right to freedom of expression (protected by article 10 ECHR). As such, the photographs cannot be published nor their contents described pending a full trial.
Whilst it was not disputed that Article 14 was engaged both through A1P1 and Article 8, Sir. Patrick Elias did not find that the claimants were in a significantly different situation to that of lone parents with older children such as to constitute indirect discrimination under the Thlimmenos principle . He concluded:
the question is ultimately a narrow one. Are the circumstances of single parents with children under two sufficiently different from other lone parents as to require an exception to be made to the imposition of the benefit cap?… I do not accept that the problems are sufficiently proportionately disabling to these lone parents to make it unjust not to treat them differently.
At first sight, Article 2 – the ‘right to life’ – seems to be a prohibition on extra-judicial executions and state-sponsored death squads. It does, of course have a role to play in that respect (and one that is not limited to those countries whose signature of the Convention is viewed with scepticism from Western Europe).
But through a combination of logic, inventive legal argument and what can either be characterised as the incremental development of a new area of law, or the expansionist tendencies of Strasbourg judges, the scope of Article 2 has broadened significantly, and can be cited in cases concerning prison administration and coronial procedural law.
In Rabone, the Supreme Court extended the obligations that the Article places on the state and its servants still further, beyond even the existing decisions from Strasbourg. They held that – in the specific circumstances of this tragic case – an NHS Trust had violated the positive duty that it had, under Article 2, to protect a voluntary patient from the risk of suicide.
Updated | The Coalition Government’s Programme for Government, launched on 20th May 2010, made a number of commitments relating to information law, including issues about privacy and data protection. It also stated that the Government would introduce a Freedom Bill.
On Friday last week (11th February) the Protection of Freedoms Bill was duly published, with lengthy explanatory notes stating that it implemented 12 specific commitments in the Programme for Government.
The Labour MP Harriet Harman has proposed a change in the law that would prevent rape complainants from being cross-examined in court about their sexual history.
Harman claims that the introduction of a complainant’s sexual history as evidence has “no evidential value.” Describing the practice as “outdated”, Harman said that “it’s based on the old notion that there were two sorts of women – those who were ‘easy’ and those who were virtuous – and if you were easy, you would have sex with anybody, because you were that sort of woman.”
Montgomery v. Lanarkshire Health Board  UKSC 11, 11 March 2015 – read judgments here
James Badenoch QC of 1COR was for the mother in this case. He played no part in the writing of this post.
An important new decision from a 7-Justice Supreme Court on informed consent in medical cases.
In the mid-1980s a majority of the House of Lords in Sidawaydecided that it was on the whole a matter for doctors to decide how much to tell patients about the risks of treatment, and that therefore you could not sue your doctor in negligence for failing to inform you of a risk if other reasonable doctors would not have informed you of the risk. Thus the principle that the standard of medical care is to be determined by medical evidence (which all lawyers will know as the Bolam principle) was extended to the quality of information to be provided to a patient about a given treatment.
The Supreme Court, reversing the judgments at first instance and on appeal, has now unequivocally said that Sidaway should not be followed.
There has been limited action on the Commission’s website, with publication of relatively illuminating minutes from the 15 November and 14 December meetings. The website has also published a list of all responses to the recent consultation. Apparently there were over 900 responses to the somewhat scanty discussion paper which was published last year.
Two suggestions. First, in my view, all of the responses should be published on the Commission’s website, not just a list of the respondees. I asked the Commission by email they would be doing so, and they responded:
King’s College Hospital NHS Foundation Trust v C and another  EWCOP 80 read judgment
A woman who suffered kidney failure as a result of a suicide attempt has been allowed to refuse continuing dialysis. The Court of Protection rejected the hospital’s argument that such refusal disclosed a state of mind that rendered her incapable under the Mental Capacity Act. An adult patient who suffers from no mental incapacity has an absolute right to choose whether to consent to medical treatment. Continuation of such treatment is unlawful, even if the refusal seems irrational to others. As the judge said, this rule
reflects the value that society places on personal autonomy in matters of medical treatment and the very long established right of the patient to choose to accept or refuse medical treatment from his or her doctor (voluntas aegroti suprema lex). Over his or her own body and mind, the individual is sovereign (John Stuart Mill, On Liberty, 1859).
The Trust’s further application to be allowed to restrain C “physically or chemically” from leaving the hospital where she was receiving the dialysis was therefore rejected.
The coverage of this case reflects a certain level of social disapproval. “Right to die for socialite scared of growing old” – “Socialite allowed to die was terrified of being poor” run the headlines. Behind them lurks an essentially religious consensus that people should not be allowed to opt out of senescence and its associated poverty and suffering, such matters being for God alone. There is also a measure of censoriousness behind the details brought to court regarding C’s attitude to motherhood and men, the news that she had breast cancer, her love of “living the high life” and her dread of growing old “in a council house”. Continue reading →
Yesterday morning, in a speech to civic organisations in Glasgow, First Minister Nicola Sturgeon warned that “no responsible government” would consider repeal of the Human Rights Act 1998 due to the numerous negative consequences, both in the domestic and international sphere, that would result from such a move – (see a transcript of the speech here).
by Fraser Simpson
Proposals for Repeal of the Human Rights Act
It has been a longstanding Tory policy to repeal the Human Rights Act and replace it with a British Bill of Rights. Such a policy is motivated by discontent over a handful of decisions from the European Court of Human Rights (“ECtHR”) that have allegedly “undermine[d] the role of UK courts in deciding on human rights issues”. In October 2014, the then Justice Secretary Chris Grayling announced Tory proposals to treat Strasbourg judgments as “advisory” – irrespective of the potential incoherence between treating judgments in such a way and the UK’s obligations under Article 46, ECHR (see John Wadham’s post here). However, the 2015 Tory manifesto included less specific promises to “scrap the Human Rights Act” in order to “break the formal link between British courts and the European Court of Human Rights”. Little substantive information has been provided on the development of these plans, apart from an intention, included in the Queen’s speech, to conduct consultations and publish proposals this autumn. Continue reading →
Conor Monighan brings us the latest updates in human rights law
In the News:
The CPS has said there is enough evidence to charge two Russian men with conspiracy to murder Sergei and Yulia Skripal. Although the Skripals survived, another lady called Dawn Sturgess later died of exposure to Novichok.
The two men visited Salisbury last March, at the same time the nerve agent attack took place. It is believed the two men, Alexander Petrov and Ruslan Boshirov, are military intelligence officers for GRU, the Russian security service. The CPS has not applied for their extradition because of Russia’s longstanding policy that it does not extradite its own nationals. A European Arrest Warrant has been obtained in case they travel to the EU.
In response, the two men have claimed they were merely tourists. In an appearance on Russia Today (RT), they said the purpose of their visit to Salisbury was to see its cathedral. Arguing that their presence was entirely innocent, the two men said they were following recommendations of friends. Petrov and Boshirov went on to say that, whilst they had wanted to see Stonehenge, they couldn’t because of “there was muddy slush everywhere”. The men insisted they were businessmen and that, whilst they might have been seen on the same street as the Skripals’ house, they did not know the ex-spy lived there. The Russian President, Vladimir Putin, has said they are “civilians” and that “there is nothing criminal about them”. Continue reading →
Updated | Next week will mark the 10th anniversary of the 11 September 2001 terrorist attacks. Despite the intervening decade, the states threatened by terrorism are still puzzling out the right balance between the powers of security services and the rights of suspected terrorists to due process.
The intelligence services have now tightened up their policy towards interviewing detainees overseas, but one policy which is still in flux is the control order regime, soon to be succeeded by Terrorism Prevention and Investigation Measures (TPIMs).
London has just experienced its largest ever celebration of Pride – arranged for the weekend after the 50th anniversary of the Stonewall Riots so as to allow thousands of British people to fly out to New York to participate in the official commemoration. This is a striking example of the influence of a particularly American method of effecting social change adopted with much success in the UK – albeit there has not been much by way of rioting here.
It is probably a myth that the Stonewall riots were fuelled by mourners drinking to relieve their grief after Judy Garland’s death in London and funeral in New York City – but possibly the closest the UK came to watching similar scenes was 25 years later and was connected to the death of the artist and Outrage supporter, Derek Jarman. Peter Tatchell arranged a candlelit vigil outside the Houses of Parliament on 21st February 1994 to mark the death of the great film maker. The other purpose of this gathering was to enable a demonstration to take place right outside the Palace of Westminster just as the Commons were voting on establishing an equal age of consent. When Parliament voted for a compromise of 18 years of age, the 5,000 or so demonstrators invaded the grounds of the Palace and Police and Commons staff struggled to close the great doors of Parliament to keep them out.
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