Health


Working with the elderly and infirm: a delicate balance of rights

30 October 2012 by

 R (on the application of J) v the Chief Constable of Devon and Cornwall [2012] EWHC 2996, 26 October 2012 – read judgment

Close on the heels of last week’s decision regarding disclosure of information from the Child Sex Offenders Register comes this ruling on the police decision to disclose certain information from a nurse’s enhanced criminal records certificates without affording her an opportunity to make representations before the information was released.

The Legal Framework

Section 113B of the Police Act 1997 provides for enhanced criminal record checks to be carried out in various specified circumstances, such as where people are applying to work with children or vulnerable adults. The check is enhanced in the sense that it will involve a check with local police records as well as the centralised computer records held by the Criminal Records Bureau. As well as information about minor convictions and cautions, it will reveal allegations held on local police records about the applicant’s criminal or other behaviour which have not been tested at trial or led to a conviction.If the information satisfies certain threshold tests in the relevant statute, it must be given to the Secretary of State  who must include it in the relevant individual’s Enhanced Criminal Record Certificate or “ECRC.”
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Why saving the Human Rights Act will be good for your health – Alice Donald

24 October 2012 by

Debate about whether the Human Rights Act (HRA) might be replaced by a new UK Bill of Rights often dwells on the potential loss, or at least weakening, of the legal route to accountability and redress for victims of human rights violations. An event next month in Liverpool reminds us how much more might be lost if the HRA were to be scrapped or watered down. In particular, it highlights the significance of section 6 of the Act, which requires all public authorities to act in a way which is compatible with European Convention rights unless primary legislation requires them to act otherwise.

The event in question is the launch of the latest results of the Human Rights in Healthcare programme. The programme was set up in 2006 by the Department of Health and the British Institute of Human Rights; in 2011-12, it was led by Lindsey Dyer of Mersey Care NHS Trust. Under its leadership, pilot NHS Trusts have used human rights to design and run services in areas as diverse as dementia care, acute hospital settings, district nursing and care homes.

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German court rules child’s religious circumcision can be a criminal offence – Analysis

27 June 2012 by

Updated | As has been widely reported, a regional German court has ruled that a Muslim boy’s religious circumcision was a crime and that it violated his basic constitutional rights to bodily integrity. This ruling has no direct effect on other European states, but will buoy the campaign against male circumcision.

Thanks to an admirably swift response from the Cologne Regional Court to my request, I have uploaded the appeal decision (the important one), the original decision which was under appeal and the court’s press release. All are in German. I have also uploaded a version of the appeal judgment in English (updated – I have been sent a much better English translation).

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NHS Trust rapped on knuckles for refusing to reinstate union activist

30 May 2012 by

R(on the application of Yunus Bakhsh) v Northumberland Tyne and Wear NHS Foundation Trust [2012] EWHC 1445 (Admin) read judgment

This fascinating short judgment explores the extent to which a judicial review claim, or a free-standing claim under the Human Rights Act, may be precluded by a statute covering the same issue.

If Parliament has decided on a particular avenue of appeal in a certain context, and settled upon a sum in compensation, do the courts have any room for manoeuvre outside those statutory limits?  There is very strong authority to the effect that the courts have no discretion to grant any relief going beyond the remedy which Parliament has seen fit to provide (see Johnson v Unisys Ltd [2003] 1 AC 518). But on arguability grounds at least, this short permission decision by Foskett J suggests that public law must attend to the policy behind the statute. If the redress provided by the legislation does not fully serve the aims of that policy, it may be that public law has to come to the rescue.

Background

In essence the claimant, a former mental nurse who had been sacked because of his trade union activities and not granted reinstatement, was seeking to challenge the decision by his employer, a public NHS trust, not re-engage him after it had been ordered to do so by an Employment Tribunal in 2010. The reason they failed to do so was not put forward but was probably because of his anticipated continued trade union militancy.
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Unlawful to refuse support for Portuguese with AIDS – Nearly Legal

15 May 2012 by

De Almeida, R (on the application of) v Royal Borough of Kensington and Chelsea [2012] EWHC 1082 (Admin) – Read judgment

This was a judicial review of RBK&C’s refusal to provide support under s.21 and s.29 National Assistance Act 1948 and indeed to carry out an assessment under s.47 of the National Health Service and Community Care Act 1990.

Mr De A is a Portuguese national. He lived in the UK from 1998 to 2001 and from 2008 to date. He worked during the first period and for a year after his return. Mr De A had contracted HIV and AIDS. His health deteriorated so that he was not able to work. His prognosis in October 2010 was that he had about a year to live. At the time of the first hearing in this case in November 2011, his prognosis was about 6 months.

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Consultation on children’s heart surgery was lawful, rules Court of Appeal

25 April 2012 by

Royal Brompton and Harefield NHS Foundation Trust, R (on the application of) v Joint Committee of Primary Care Trusts & Anor [2012] EWCA Civ 472 – Read judgment.

Marina Wheeler of 1 Crown Office Row appeared for the successful Appellant in this case. She is not the author of this post

When is reorganisation of healthcare services unlawful? When can consultation, rather than a final decision, successfully be challenged? These were the questions dealt with by the Court of Appeal in relation to the reconfiguration of paediatric heart surgery services. The Bristol Royal Infirmary scandal had left these services in need of change; the Court of Appeal found that there was nothing unlawful in the consultation process resulting in the Royal Brompton failing to be chosen as one of the two specialist centres in London.

Following the failures in Bristol that were subject to a public inquiry in 1998, there have been a number of reports on paediatric heart surgical care. This is an extremely specialised area of medicine. The recent trend has been for such specialist areas (another example is major trauma care) to become concentrated in fewer hospitals: the principle being that when professionals come into contact with such work more regularly they become better at it; spreading such cases wide and thin results in poor outcomes.

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GP’s rights not violated by suspension from performers list

15 March 2012 by

Malik v United Kingdom 23780/08 [2012] ECHR 438 (13 March 2012) – Read judgment

The European Court of Human Rights held that the suspension of a GP from the Primary Care Trust (PCT) Performers List did not violate his right to peaceful enjoyment of possessions under Article 1 Protocol 1 (A1P1) of the European Convention on Human Rights. The Court declined to decide whether there was a possession that could be interfered with in this case, but held that suspension did not affect Dr Malik.

Dr Malik ran a general practice from premises he owned in London. He was under a general medical services contract with his PCT so that he had to ensure patients on his list were provided with GP services (whether by himself or a salaried doctor); his premises was rented (for a notional amount) so that it could be used for NHS services. Dr Malik was also on the PCT’s performers list so that he personally could provide GP services.

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Hospital had human rights duty to protect voluntary patient from suicide, rules Supreme Court

8 February 2012 by

This post originally displayed an image of a sign at Stepping Hill Hospital, including reference to Stockport NHS Foundation Trust. The case did not involve Stockport NHSFT so I have removed the image: my apologies for any confusion caused. In the absence of any interesting images of Pennine Care NHS Trust, who were the Respondent, I have replaced this with an image of the snowy Pennines.

Rabone and another (Appellants) v Pennine Care NHS Trust (Respondent) [2012] UKSC 2 – Read judgment / press summary

The Supreme Court has ruled unanimously that a mental health hospital had an “operational” obligation under article 2 of the European Court of Human Rights (the right to life) to protect a voluntary patient from suicide. This is the first time the reach of the article 2 obligation to protect life has been expanded to a voluntary patient; that is, a patient who was not detained under the Mental Health Act.

My initial thoughts are that this is potentially very important, and follows on from Savage in gradually expanding the reach of Article 2, and therefore the liability of mental health hospitals to patients and (as was crucial in this case) their families. The court observed that Ms. Rabone, who committed suicide after being granted 2-days of home leave by the hospital, could have been detained under the MHA in any event, so the distinction between a voluntary and detained patient was of form rather than substance.

Nonetheless, the decision appears to endorse an “each case on its own facts” approach, and will affect human rights damages claims and arguably so-called article 2 inquests too. Here is a particularly quotable line from Lady Hale at paragraph [92]:

“There is no warrant, in the jurisprudence or in humanity, for the distinction between the two duties drawn by Lord Scott in Savage…”

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Dismissal of hospital consultant did not breach fair trial rights

3 August 2011 by

Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust [2011] EWHC 2068 (QB)- Read judgment

The High Court has dismissed Dr Raj Mattu’s claim that his dismissal by an NHS Trust was in breach of contract and in breach of his Article 6 right to a hearing before an independent and impartial tribunal. This is one of the first judgments on the applicability of Article 6 to disciplinary and dismissal proceedings since the decision of the Supreme Court in R (G) v X School Governors [2011] UKSC 30 (read our post).

Dr Mattu was employed by the Trust as a consultant in non-invasive cardiology and general medicine in 1998. In 2002 he was suspended on disciplinary grounds; however, the relevant disciplinary hearing did not occur until 2007 and the suspension was in place until July 2007. Further, Dr Mattu was on sick leave for at least a year from September 2006.

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Case summary: Cigarette vending machine ban not breach of human rights

6 December 2010 by

Sinclair Collis Limited, The Members of National Association of Cigarette Machine Operators (Interested Party) v Secretary of State for Health [2010] EWHC 3112 (Admin)Read judgment or Rosalind English’s analysis of the decision

The High Court has ruled that the Secretary of State for Health did not breach the human right to peaceful enjoyment of property or European Union law by banning the sale of tobacco products from automatic vending machines.

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Judge orders that patient be operated on against her will

3 June 2010 by

DH NHS Foundation Trust v PS (by her litigation friend, The Official Solicitor) [2010] EWHC 1217 (Fam) – Read judgment

The head of the Family Division, Sir Nicholas Wall, has ordered that a woman with learning disabilities be forced under sedation to undergo surgery in order to save her life.

This case brought to the fore the complex balance between allowing those who lack the capacity the autonomy to make decisions about how they wish to live their lives, and enabling the State to step in when such decisions are not only unwise but actually life threatening.   It treads a delicate path between a number of human rights, in particular Article 2 (right to life), Article 5 (right to liberty and security) and Article 8 (right to privacy).

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Transsexual’s NHS breast enlargement claim rejected

27 May 2010 by

AC v Berkshire West Primary Care Trust [2010] EWHC 1162 (Admin) (25 May 2010) – Read Judgment

An NHS Trust acted rationally in refusing to provide breast enlargement surgery to a transsexual, the High Court has ruled, even though there was credible medical evidence that the surgery would have been beneficial. The case raises issues as to when treatment can truly be said to be “necessary” in light of increasingly tight purse strings, and whether NHS policy could be discriminatory towards transsexuals.

The Claimant, AC, had been diagnosed with gender identity disorder (GID). As part of its GID treatment program the PCT had been prepared to provide genital reassignment surgery, which AC had refused.

As part of her treatment, AC was given hormone therapy but was disappointed with her subsequent breast development. Her GP wrote in 2006 that AC had found that her lack of breasts made it “much more difficult for her to feel feminine. It tends to get her down although she does not have a history of significant depressionWhilst we can offer her what support we can with this, this is never clearly going to be as effective as a surgical solution.”
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Singh libel case dropped in light of robust Court of Appeal judgment

15 April 2010 by

The British Chiropractic Association (BCA) has dropped its libel action against Simon Singh, in light of the stinging rebuke it received from the Court of Appeal earlier this month.

Dr Singh was being sued by the BCA in respect of an article he wrote in The Guardian (now reprinted) in April 2008, in which he said there was not enough evidence to prove that chiropractic treatment is effective against certain childhood conditions including colic and asthma.

We posted on April 1 on the preliminary decision. The Court of Appeal judges used their judgment on two preliminary issues (in particular, whether Dr Singh could use the defence of “fair comment”) to mount a robust and somewhat lyrical defence (quoting Milton, amongst other things) of the right to scientific freedom of expression.

Given the unusually strong tone of the Court of Appeal judgment, the BCA will have questioned their chances of success in the final hearing. The BCA say in their statement:

The Court of Appeal, in its recent judgment, has taken a very different view of the article [than Mr Justice Eady in the High Court]. On its interpretation, the article did not make any factual allegation against the BCA at all; it was no more than an expression of ‘honest opinion’ by Simon Singh. While it still considers that the article was defamatory of the BCA, the decision provides Dr Singh with a defence such that the BCA has taken the view that it should withdraw to avoid further legal costs being incurred by either side.

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