Search Results for: right to die
29 September 2011 by Rosalind English
M and others v NHS Primary Healthcare Trust – read judgment
For the first time the courts have been asked to consider whether life-supporting treatment should be withdrawn from a patient who was not in a persistent vegetative state (PVS) but was minimally conscious. The patient’s family sought a declaration for the withdrawal of artificial nutrition and hydration withdrawn and said the woman, referred to as M in court, would not want to live “a life dependent on others”.
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16 October 2018 by Jonathan Metzer
After 12 years as Head of Chambers at One Crown Office Row, during which Chambers grew steadily and the number of silks almost doubled, Philip Havers QC this month handed over the reins to his successor, Richard Booth QC.
Philip’s career so far has ranged over a great breadth of work, encompassing public and human rights law, clinical negligence, public inquiries and high profile inquests.
He regularly appears in landmark cases in the appellate courts. He recently acted as counsel to a prisoner who tried to persuade the Supreme Court that the prison authorities had to enforce the ban on smoking in public places, successfully defended the Crown Prosecution Service in the Supreme Court against a claim that a decision to prosecute a Somalian asylum seeker had been a breach of her Article 8 rights, and last week the Supreme Court gave judgment in a case of his involving an A&E receptionist who gave negligent advice to a patient about how long he would have to wait to be seen by a nurse (covered on this Blog here). He also appeared this summer in the Privy Council representing the Chief Justice of Trinidad and Tobago in a case concerning whether the constitution prevented the Law Bar Association of Trinidad and Tobago from inquiring into allegations of misconduct made against him.
Outside court he is a music lover, with a particular devotion to Tom Petty and the Traveling Wilburys. He is also a tennis fan, a wine connoisseur, and a keen gardener.
He sat down to answer a few of our questions about his career at the Bar and what he has learned.
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20 December 2021 by Charlotte Gilmartin
Savran v. Denmark (Application number 57467/15), 7 December 2021
The Grand Chamber of the European Court of Human Rights (“ECtHR”) has held that the risks to the applicant’s psychiatric health posed by his expulsion to Turkey did not reach the threshold for the application of Article 3.
The decision demonstrates the extremely high evidential threshold which applicants bringing such complaints will have to meet in order to establish that there are “substantial grounds” for believing that there is a real risk of a violation of Article 3, i.e., to pass the first stage of the Article 3 analysis articulated in the ECtHR’s case law.
For a detailed review of the Article 3 case law preceding this decision, see the two part analysis here and here and a further extended look on the UKHRB.
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3 May 2022 by Dominic Ruck Keene
The High Court (Bean LJ and Garnham J) held in R (Gardner) v Secretary of State for Health [2022] EWHC 967 (Admin) that the Government’s March 2020 Discharge Policy and the April 2020 Admissions Guidance were unlawful to the extent that the policy set out in each document was irrational in failing to advise that where an asymptomatic patient (other than one who had tested negative) was admitted to a care home, he or she should, so far as practicable, be kept apart from other residents for 14 days.
About 20,000 residents of care homes in England died of COVID-19 during the first wave of the pandemic in 2020. Two of them were Michael Gibson, father of the First Claimant, and Donald Percival Maynard Harris, father of the Second Claimant. Mr Gibson died in a care home in Oxfordshire on 3 April 2020; Mr Harris in a care home in Hampshire on 1 May 2020.
The Issues
The Claimants sought declarations that particular policies of the Defendants (the Health Secretary, NHS England and Public Health England) during the relevant period constituted breaches of their fathers’ rights under the European Convention on Human Rights, or alternatively were unlawful and susceptible to judicial review on common law principles.
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26 August 2020 by Rosalind English
Northamptonshire Healthcare NHS Foundation Trust v AB [2020] EWCOP 40
In this carefully nuanced judgment, the Court of Protection has ruled that although a patient with a chronic eating disorder would in all probability face death she did not gain weight, it would not be in her best interests to continue being subjected to forced feeding inpatient regimes.
AB is a 28 year-old woman who has over many years suffered from anorexia nervosa. She was first diagnosed when she was a teenager of 13 and now has a formal diagnosis of a Severe and Enduring Eating Disorder (‘SEED’).
The NHS Trust and the team of treating clinicians who have been responsible for providing care for AB applied to the COP for declaratory relief pursuant to ss 4 and 15 of the Mental Capacity Act 2005 in these terms:
(i) it is in AB’s best interests not to receive any further active treatment for anorexia nervosa; and that
(ii) AB lacks capacity to make decisions about treatment relating to anorexia nervosa.
Issues before the Court
Litigation capacity: it was not in issue that AB did have the capacity to instruct her solicitors.
General capacity: this was a more difficult question to be decided under Section 3 of the Mental Capacity Act. The key question was, did she have the mental capacity to make a decision about the specific medical treatment proposed. Roberts J had to decide one way or another on whether she should be tube fed, probably under sedation (otherwise she would remove the tube).
The Trust argued that she did not have this capacity, relying on evidence from AB’s treating psychiatrist Dr B. AB said she did have this capacity.
Best interests: was it in AB’s interests to discontinue any tube feeding? The unanimous professional view of her treating team was that palliative care and no further tube feeding was in her best interests. However, since the decision not to have any further forced feeding was a life-threatening one, the case had to be referred to the Court of Protection.
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29 April 2020 by Jonathan Metzer
Unlike some of the rights protected by the European Convention on Human Rights, the prohibition on torture or inhuman or degrading treatment under Article 3 is absolute. There is no question of striking a balance between Article 3 and other considerations: the state simply may not act in a way which would breach this prohibition.
This means that this right can offer crucial protection to the sorts of people that some members of the public may not have instinctive sympathy towards, such as an immigrant with a serious criminal history who may otherwise struggle to resist deportation. Even if their case is otherwise unattractive, if it is shown that deporting them would expose them to inhuman or degrading treatment (or indeed constitute such treatment), their appeal must succeed.
In certain circumstances this will include a person with a serious medical condition who resists removal on the basis that the disparity between medical care in their country of origin compared to their host state would mean that removing them would constitute inhuman or degrading treatment. Such cases had previously been considered to succeed primarily for a person close to death, where removal would involve “in effect, pulling a man off his deathbed” (AM (Zimbabwe), para 14).
However, in AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17, the Supreme Court has held that the proper approach to Article 3 was modified by the European Court of Human Rights in Paposhvili v Belgium [2017] Imm AR 867. The relevant test now is whether removal would give rise to a real risk of a serious, rapid and irreversible decline in the person’s state of health resulting in intense suffering, or to a substantial reduction in life expectancy. This does not require that death be imminent in the event of removal.
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23 February 2018 by David Hart KC
R (ClientEarth No.3) v Secretary of State for Environment, Food & Rural Affairs, Garnham J, 21 February 2018, judgment here
DEFRA has been found wanting again, in its latest attempt to address nitrogen dioxide in air. This is the third time. Yet DEFRA’s own analysis suggests that some 23,500 people die every year because of this pollutant.
I have told the story in many posts before (see list at bottom), but the UK has been non-compliant with EU Directive 2008/50 on nitrogen dioxide (et al) since 2010. The Directive requires that the period in which a state is obliged to remedy any non-compliance is to be “as short as possible”: Article 23.
We have now had 3 Air Quality Plans, the first produced in 2011 and quashed in 2015, and the second produced later in 2015, declared unlawful by Garnham J in November 2016.
The third, in this judgment, was dragged out of DEFRA in July 2017, after various attempts to delay things.
So why was it decided to be unlawful?
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6 April 2021 by Caroline Cross
Farrell v HMC for North East Hampshire [2021] EWHC 778 (Admin)
Applying for a fresh inquest is not straightforward. First, the bereaved have to get permission from the Attorney General. Only once that authority has been granted will they be allowed to apply to the High Court to reopen the inquest (section 13 of the Coroners Act 1988). Often cases are reopened because new evidence has come to light or there has been insufficiency of inquiry, for example where a person is found guilty of the murder of the deceased or new scientific data is provided.[1] Further, it has to be necessary or desirable in the interests of justice that an investigation be (re)opened.
This case does not provide any new legal principles, but it is a strong statement about the importance of testing the evidence before granting the fiat: inquests should not be reopened just to allay the concerns of family members.
(1) Facts and Judgment
This case has a tragic backstory brought about by a complete breakdown of relations between a mother and her daughter-in-law.
Ray Farrell died on 24 October 2016 aged 53 as a result of malignant mesothelioma, which he developed following asbestos exposure working as a mate’s fitter. He had settled a civil claim with his former employer prior to his death. The documentary-only inquest recorded the cause of death as mesothelioma. There was no post mortem or toxicology, as the histology of mesothelioma was considered sufficient.
Concerns were first raised by his daughter, Kelly, who had not been informed of her father’s illness and therefore was shocked to discover his illness and death. Her suspicions were raised by two matters: two carrier bags full of medicines awaiting disposal following his death and a response from the Senior Coroner to her email that there were no toxicology or blood samples because Mr Farrell’s wife, and her stepmother, was very anxious to avoid a post mortem. In fact, it was Mr Farrell who did not want a post mortem.
Her concerns were then taken up by Ray’s mother, Mrs Farrell. She applied for a fresh inquest on the basis that Mr Farrell’s wife, Amanda Burden, hastened his death by deliberately giving him inappropriate medication. Ms Burden and Mr Farrell had been married in February 2016, although they had been in a relationship for eight years. She was, Mrs Farrell alleged, motivated by financial gain. Mrs Farrell applied with the fiat of the Attorney General under s.13 of the Coroners Act 1988 for the quashing of the original inquest due to a lack of appropriate investigation. The Senior Coroner supported the fiat, although doubted whether the outcome would be any different.
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7 June 2015 by acwessely
Photo credit: Guardian
This week’s Round-up is brought to you by Alex Wessely.
In the news
Three high profile cases concerning the UK government have been granted hearings in the European Court of Human Rights grand chamber, putting the relationship between the government and the ECHR “in the spotlight“.
- Ibrahim and Others v. the United Kingdom concerns four men convicted of offences relating to the 21 July London terror plot. The men were initially interviewed by police before they were allowed to consult a lawyer (on the grounds that the urgent situation meant no delay was permissible), which they claim is a breach of their Article 6 rights (right to a fair trial).
- The second case, Hutchinson v UK, concerns the politically charged issue of whole life tariffs – prisoners who have been told they will never be released from jail. Ian Hutchinson, sentenced in 1983 for triple murder and rape, argues that this constitutes a violation of his Article 3 rights (protection against torture and inhumane and degrading treatment). This argument was rejected in February, but is now being re-heard.
- The third case is brought by the family of Jean Charles de Menezes, who was killed by police in 2005 when they mistakenly thought he was planning a suicide attack at Stockwell station. This is covered by Inquest, the Guardian and Evening Standard.
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11 October 2015 by Rosalind English
JM (a child), Re [2015] EWHC 2832 (Fam), 7 October 2015 – read judgment
Mostyn J, ruling in the Family Division that a child should receive surgical treatment for bone cancer against the wishes of his parents, has referred to Ian McEwan’s “excellent” novel The Children Act (Jonathan Cape 2014), which is about a 17 year old Jehovah’s Witness refusing a blood transfusion. The judge noted however that the book was in fact “incorrectly titled”:
a question of whether a medical procedure should be forced on a 16 or 17 year old should be sought solely under the High Court’s inherent jurisdiction, and not under the Children Act.
This case on the other hand concerned a ten year old child, J. The NHS Trust sought permission to perform urgent surgery of a serious nature on his right jawbone, where he has a very rare aggressive cancer. Its medical name is a craniofacial osteosarcoma, presenting a tumour in the bone of about 4 inches long and 1½ inches wide. The unambiguous medical evidence before the court was that if it was not removed very soon then in 6 months to a year J would die “a brutal and agonising death”. The oncologist had spelt this out in unflinching detail:
J will not slip peacefully away. The cancer will likely invade his nerve system affecting basic functions such as speaking, breathing and eating. His head will swell up grotesquely. His eyes may become closed by swelling. A tracheostomy may be needed to allow breathing. Above all, the pain will likely be excruciating.
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16 February 2015 by David Hart KC
A fascinating riff has been playing around the London Review of Books since Stephen Sedley (erstwhile Sedley LJ) reviewed a biography of the 18th century judge Lord Mansfield – here – part 3, but the excellent letters of response are open access.
Mansfield is perhaps best known by commercial lawyers for injecting into the hitherto archaic English commercial law some element of rationality. But he also ended up trying cases involving the ownership of slaves, and had therefore to decide how ownership fitted in with things like habeas corpus.
But first a bit of historical background about our man, and some indications of the differing times in which he lived – much of it thanks to Sedley’s review.
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22 April 2019 by Conor Monighan
Conor Monighan brings us the latest updates in human rights law
Credit: The Guardian
In the News:
Lord Sumption, the recently retired Supreme Court judge, has suggested that the law on assisted suicide ought to be broken.
Lord Sumption said that whilst assisted suicide should continue to be criminalised, relatives of terminally ill patients should follow their conscience and not always abide by it. As he put it, “the law should be broken from time to time”.
The former judge argued that the law’s current position helps prevent abuse, and that any change to it could only be produced by a political process.
His comments were made as part of the Reith Lectures, a series of annual radio lectures on BBC Radio 4. Lord Sumption’s lectures ask whether the legal process has begun to usurp the legislative function of Parliament. His first lecture will be made available on the 21st May.
In Other News….
- Research has revealed that 55,000 pupils have changed schools for no clear reason during the past five years. A report from the Education Policy Institute suggests some schools have been unofficially excluding students with challenging behaviour or poor academic results, as part of a practice known as “off-rolling”. One in 12 pupils who began education in 2012 and finished in 2017 were removed at some stage for an unknown reason. Just 330 secondary schools account for almost a quarter of unexplained moves. The Department for Education said it was looking into the issue, and that it had written to all schools to remind them of the rules on exclusions. More from The Week here.
- Parliament’s Joint Committee on Human Rights (JCHR) has warned that the rights of detained children are being repeatedly breached. In a report published last Thursday, it recommended that Young Offenders’ Institutions should be banned from deliberately inflicting pain on young offenders and from putting them in solitary confinement. It found that hospitals and jails are restraining children too frequently, and that such techniques are being used disproportionately against ethnic minorities. Around 2,500 young people are in detention at present. More from the Guardian here.
- The activities of Extension Rebellion, the climate change group, sparked discussion and controversy this week. The organisation has three core demands: greater transparency about climate change, a legally binding commitment to zero carbon emissions by 2025, and the creation of a citizens’ assembly to oversee the issue. The group has staged protests in London for the past week, which has included shutting down a large portion of Oxford Street. Over 800 people have been arrested. The group has been criticised for adding pressure on already overburdened police force, and for the disruption caused to people’s lives and businesses. Extinction Rebellion has announced that it will pause its protests for the duration of next week. More from the BBC here.
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9 October 2023 by Hal McNulty
In the news
The government’s Rwanda deportation scheme begins its battle in the Supreme Court today. Arguing the case for the appellants are In June, the Court of Appeal ruled the policy unlawful because of ‘deficiencies’ in Rwanda’s asylum-processing system. That court found that sending asylum-seekers to Rwanda entailed a ‘real risk’ of applicants being returned to their home countries, meaning the UK would break its commitment to not putting people at risk of torture under the European Convention on Human Rights.
Angus McCullough KC of 1 Crown Office Row is representing the United Nations High Commissioner for Refugees in this appeal. On the respondent (government) side, both of 1 Crown Office Row, are Neil Sheldon KC and Natasha Barnes (instructed by the Government Legal Department).
If the Supreme Court overturns this judgment, the Home Office will be able to schedule flights to Rwanda with just 12 days’ notice, unless the European Court intervenes again. The Illegal Migration Act, however, gives the Home Secretary a new power to ignore an interim order from the European Court.
At the Labour party conference, shadow ministers have announced that a Labour government would bring in significant reforms to the planning system. Keir Starmer has pledged to build 1.5m homes in the first five years of his government, introducing reforms such as increased powers of local authorities to hold property firms to account. Rachel Reeves has promised to speed up the planning process for infrastructure building.
The CPS has provided prosecutors with new guidance for ‘mercy killings.’ The term has not been defined by statute or common law and is not currently a defence to murder, but the guidance sets out the factors to consider when determining whether bringing a charge would be in public interest. These include whether the victim was under 18 years old, whether the suspect was motivated wholly by compassion, and whether the victim had clearly communicated their wish to die. The update is unlikely to radically alter the prosecution’s approach to such cases, but it articulates more clearly the reasons for and against bringing a charge where the public interest is in question.
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5 January 2023 by Jasper Gold
The year passed was, unsurprisingly, another year of tumult and surprise, something that by now registers as the norm rather than an aberration. Even so, 2022 must be a standout year – even by recent standards. From Russia’s invasion of Ukraine to the death of Queen Elizabeth II, the collapse of two consecutive Tory governments, dramatic election results around the world from Israel to Brazil, and in the run up to the festive season a football World Cup as mired in human rights controversy as in any sporting event can be, 2022 was not a quiet year.
Nor did the legal world disappoint. On the Parliamentary side of things, Justice Secretary Dominic Raab’s controversial Bill of Rights Bill continues to clunk through Parliament, and other bills with interesting human rights implications have had their moment in the sun as well. To take but one example, the Online Safety Bill, whose controversial but central parts dealing with ‘legal but harmful’ speech were removed recently, is yet to become law after extensive reform following criticisms based on freedom of expression.
But the focus of this post is not on Parliament, or politics in general, but on the highlights of 2022 in the Courts. So with no further ado and in no particular order, the cases which (in the completely impartial and objective joint opinion of the co-editors of this blog) have defined 2022 are:
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26 February 2018 by Rosalind English
Alder Hey Children’s NHS Foundation Trust v Evans, James and Alfie Evans (a child by his guardian Cafcass Legal) [2018] EWHC 308 (Fam) – read judgment
This was an application by the hospital for a declaration to allow their doctors to withdraw life support from a 19 month old child, Alfie. He suffers from a progressive, ultimately fatal neurodegenerative condition, probably a mitochondrial disorder. His epileptic seizures have not been brought under control by anti-convulsant treatment. The evidence before the court was that even if these seizures were to end, his brain is “entirely beyond recovery”. However caused, his neural degeneration is both “catastrophic and untreatable”.
In simple terms the thalami, basal ganglia, the vast majority of the white matter of the brain and a significant degree of the cortex have been wiped out by this remorseless degenerative condition.
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M and others v NHS Primary Healthcare Trust – read judgment
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