This afternoon, health secretary Matt Hancock made a statement in the Commons updating the house on the government’s response to the crisis.
The health secretary announced that anyone in the UK aged five and over who has coronavirus symptoms will be eligible for a test. From today, recognised symptoms include the loss of smell and taste, as well a persistent cough and a high temperature. Hancock confirmed for the first time that the government has recruited over 21,000 contact tracers, including 7,500 health care professionals, to manually trace and get in contact with anyone who has tested positive.
In addition, he offered a degree of clarification in relation to the government’s new contact tracing app. The function of the app is to alert people of the need to self-isolate if they have come into proximity with an individual who reported coronavirus symptoms.
Quarantines and lockdowns are sweeping Europe: Italy, France, Spain. Through them, states seek to contain Covid-19 and so save lives. It is difficult to imagine higher stakes from a human rights perspective: mass interferences with whole populations’ liberties on one side; the very weighty public interest in protecting lives on the other; and all this under the shadow of uncertainty and disorder. What, if anything, do human rights have to say?
To begin sketching an answer to this complex question, this post analyses the situation in the European state furthest down this path: Italy. After outlining the Italian measures (I), it argues that Italy’s mass restrictions on internal movement are unlikely to violate the right to free movement but pose problems in respect of the right to liberty (II). I conclude by summarising the tangle of other rights issues those measures raise and making a tentative reflection on the currently limited role of human rights law (III).
Before beginning, I should note that analysing measures’ human rights compliance in abstracto is difficult and slightly artificial: a great deal turns on how measures are implemented in practice and particular individuals’ circumstances. Moreover, my analysis is limited to the European Convention on Human Rights (‘ECHR’), and I do not profess expertise in Italian law (which is proving complex to interpret). The aim of this post is therefore to start, not end, debate about human rights’ role as these measures begin to spread across Europe.
Thomas Hayes is a specialist registrar in vascular surgery and forthcoming pupil at 1 Crown Office Row
As teased earlier, the Covid-19 pandemic gives rise to such a volume of material as to justify a slightly more detailed examination of its consequences. In time, the response of governments across the globe to the disease will no doubt be the subject of detailed study by academics across the fields of biology, history and law. For the time being, however, blog readers will have to tolerate the following words of speculation, much of which will probably suffer the cruel fate of being shown to be out of date and/or inaccurate within hours of publication…
The government has announced its intention to bring before Parliament this week emergency laws to help control the outbreak. Whilst at the time of writing, such draft legislation had not been published, press reports suggested it would include new powers to allow the police to detain those breaking quarantine measures. Where the police might take such recalcitrant citizens is not known, however the prospect of detaining in close proximity those suspected of carrying the highly infectious airborne disease presumably fills neither the police nor public health officials with much joy…
This Government’s key message has been its ability get things done, whether it be Brexit, HS2 or stopping the spread of Coronavirus.
Indeed, if the new high speed trains move as swiftly as the Health Secretary did on Monday, then they might break the sound barrier: the Health Protection (Coronavirus) Regulations 2020 were enacted at 6.50am on Monday and laid before Parliament by 2.30 that afternoon. Their preamble states that
the Secretary of State is of the opinion that, by reason of urgency, it is necessary to make this instrument without a draft having been laid before, and approved by a resolution of, each House of Parliament.
One can appreciate the desire to bypass the cumbersome mechanics of Parliament to save the country from a potentially deadly virus. But in the fullness of time, the resulting Regulations might well be held up as an excellent advertisement for Parliamentary scrutiny.
Alder Hey Children’s NHS Foundation Trust v Evans, James and Alfie Evans (a child by his guardian Cafcass Legal)  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.
The Attorney General for Northern Ireland and the Department of Justice (appellants) v The Northern Ireland Human Rights Commission (respondent)  NICA 42 (29 June 2017) – read judgment
Although the accompanying image is not in any way intended to suggest that Northern Ireland’s law on abortion parallels the situation obtaining in Margaret Atwood’s fictional Gilead, the failure of the legislature and the courts to overhaul the criminal law to allow women access to termination is a bleak reflection of the times. The hopes that were raised by high court rulings from 2015 and 2016 that existing abortion laws breached a woman’s right to a private life under Article 8 have now been dashed.
Let me start with a much quoted proposition derived from Strasbourg law.
when a woman is pregnant her private life becomes closely connected with the developing foetus and her right to respect for her private life must be weighed against other competing rights and freedoms, including those of the unborn child.
Really? Does that mean a woman loses her autonomy, the minute she conceives? Does she become public property, subject to the morals and wishes of the majority? Apparently so, particularly when one reads the opinion of Weatherup LJ:
the restriction on termination of pregnancies pursues the legitimate aim of the protection of morals reflecting the views of the majority of the members of the last [Northern Ireland] Assembly on the protection of the unborn child.
R (o.t.a A and B) v. Department of Health  UKSC 41, 14 June 2017 – judgment here; previous post here.
Update: the government has announced its intention to make funding available for women travelling from Northern Ireland to have free termination services on the NHS in England (29 June 2017).
Was it unlawful for the Secretary of State for Health, who had power to make provisions for the functioning of the National Health Service in England, to have failed to make a provision which would have enabled women who were citizens of the UK, but who were usually resident in Northern Ireland, to undergo a termination of pregnancy under the NHS in England free of charge?
No, said the Supreme Court (Lord Wilson, who gave the lead judgment, and Lords Reed and Hughes, but with Lord Kerr and Lady Hale dissenting).
Background law and facts
The law on abortion in Northern Ireland is governed by the Northern Ireland Assembly. Abortion is only lawful there if there is a threat of long term psychiatric or physical injury to the mother. As this is difficult to prove, a steady stream of women come from Northern Ireland to secure abortions, mostly from private clinics that charge a fee for the service as they are unable to obtain a termination free of charge under the English NHS. Continue reading →
FB v. Princess Alexandra Hospital NHS Trust  EWCA Civ 334, 12 May 2017, Court of Appeal – read judgment
All the advocates in this case were from 1 Crown Office Row, Elizabeth-Anne Gumbel QC for the claimant/appellant FB, and John Whitting QC and Alasdair Henderson for the hospital. None of them were involved in the writing of this post.
FB fell ill with meningitis when she was just one. The illness was diagnosed too late, and she suffered brain damage. This appeal was against the judge’s dismissal of the claim against the hospital, where she was seen, some time before she was admitted and the infection treated. All agreed that avoiding the time between being seen and being admitted would have led to the brain damage being avoided.
But should the junior doctor have picked up enough about her condition to admit her?
John (A Minor: Vaccine Damage Payments scheme), Re  EWCA Civ – read judgment
As commentators to my previous post on immunisation have pointed out, vaccinations are not cost-free. But the benefit of eliminating pathogens through herd immunity is generally agreed to outweigh the occasional risk to individuals. Acknowledging that there are such risks, the government has run a modern compensation system since 1979 for people who are “severely disabled” as a result of vaccination (now the 2012 Vaccine Damage Payments Scheme). The initial scheme was put in place in response to side effects of the whooping cough vaccine.
The question before the Court of Appeal in the present case was whether the determination of the severity of a person’s disablement could take account of prognosis. If an individual has been assessed as having a lifelong condition, is the state obliged to compensate them for future disabilities?
Yes, said the Court of Appeal: this is not speculation, our legal system is used to it. It is the “very stuff” of personal injury litigation.
Vaccine in vial with syringe. Vaccination concept. 3d
SL (Permission to Vaccinate), Re 2017 EWHC (Fam) EWHC (30 January 2017)  EWHC 125 (Fam)
The alleged risks attending on vaccination were outweighed by the benefits of immunisation by a clear margin, the Family Court has ruled.
The seven month old baby SL was subject of an interim care order. The mother (the third respondent) objected to immunisations on the basis that her other children had suffered adverse reactions from them in the past. The local authority applied under the court’s inherent jurisdiction for a declaration that it was in the child’s interests for it to be given permission to arrange for him to receive the Haemophilus Influenza Type b (Hib) vaccine and the pneumococcal conjugate (PCV) vaccine. Continue reading →
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?
Michalak v The General Medical Council & Ors  EWCA Civ 172: This important case deals with the remedies available to individuals who claim to have suffered from discrimination, victimization, harassment or detriment in the treatment they have received from a “qualifications body” under s.53 of the Equality Act 2010 viz. any authority or body which can confer a relevant qualification (e.g. the GMC, ACCA etc.). It also clarifies the understanding of the place of judicial review in the context of internal and statutory appeals in cases of alleged discrimination contrary to the Equality Act 2010.
Dr Eva Michalak’s name may sound familiar. She formerly worked as a consultant physician with an interest in kidney diseases at Pontefract General Infirmary. In 2011, in a widely publicised judgment she recovered record damages in respect of claims for sex and race discrimination and unfair dismissal against the Mid Yorkshire Hospitals NHS trust and three senior staff members. The tribunal panel said that they were “positively outraged at the way this employer has behaved” and concluded the Polish-born doctor would never be able to carry out her work again. Continue reading →
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 →
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 →
Wye Valley NHS Trust v B (Rev 1)  EWCOP 60 (28 September 2015) – read judgment
The Court of Protection has recently ruled that a mentally incapacitated adult could refuse a life saving amputation. This is an important judgement that respects an individual’s right to autonomy despite overwhelming medical evidence that it might be in his best interests to override his wishes. The judge declined to define the 73 year old man at the centre of this case by reference to his mental illness, but rather recognised his core quality is his “fierce independence” which, he accepted, was what Mr B saw as under attack. Continue reading →
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