Right to Privacy

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Court of Protection orders continued reporting restrictions after death

why_we_need_kidney_dialysis_1904_xIn the matter of proceedings brought by Kings College NHS Foundation Trust concerning C (who died on 28 November 2015) v The Applicant and Associated Newspapers Ltd and others [2016] EWCOP21 – read judgment

The Court of Protection has just ruled that where a court has restricted the publication of information during proceedings that were in existence during a person’s lifetime, it has not only the right but the duty to consider, when requested to do so, whether that information should continue to be protected following the person’s death.

I posted last year on the case of a woman who had 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 (King’s College Hospital NHS Foundation Trust v C and another  [2015] EWCOP 80). Continue reading →

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Judge allows paternity test for DNA disease analysis

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Spencer v Anderson (Paternity Testing) [2016] 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 →

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Birth certificate cannot be retrospectively changed to reflect father’s gender reassignment

birthcertificate300x203_4fba822944823JK, R(on the application of) v Secretary of State for Home Department and another [2015] EWHC 990 (Admin) 20 April 2015 – read judgment

This case concerned the rights of transgender women, and their families, in particular the right to keep private the fact that they are transgender.

The Court heard a challenge to the requirement in the UK’s birth registration system that men who had changed gender from male to female should be listed as the “father” on the birth certificates of their biological children. Having decided that this did engage the claimant’s privacy rights under Article 8 of the European Convention of Human Rights, in conjunction with the right not to be discriminated against under Article 14, the Court concluded that the interference was justified.

Factual and legal background

The clamant JK had been born male. She was married to a woman, KK, and the couple had two naturally conceived children. After the birth of the first child in 2012, JK was diagnosed with gender identity disorder and concomitant gender dysphoria. In October 2012, she started a course of feminising hormone treatment. The treatment pathway requires two years living as a female before consideration is given for referral for gender reassignment surgery. Before the claimant started feminising hormone therapy, KK fell pregnant a second time, again conceiving naturally by the claimant. Continue reading →

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DNA sample taken for criminal purposes may not be used for paternity test – Amy Woolfson

dna-evidenceX & Anor v Z (Children) & Anor [2015] EWCA Civ 34 – read judgment

The Court of Appeal has ruled that it would not be lawful for DNA originally collected by the police to be used by a local authority for the purposes of a paternity test. 

Factual and legal background

X’s wife had been found murdered.  The police took DNA from the crime scene.  Some of the DNA belonged to X’s wife and some was found to be X’s.  X was tried and convicted of his wife’s murder.

X’s wife had young children and they were taken into the care of the local authority.  During the care proceedings X asserted that he was the biological father of the children and said he wanted to have contact with them.  He refused to take a DNA test to prove his alleged paternity.  The local authority asked the police to make the DNA from the crime scene available so that it could be used in a paternity test.  The police, with the support of the Home Secretary, refused on the grounds that they did not believe that it would be lawful to do so. Continue reading →

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Cracking intercepts: the war on terror and difficulties with Human Rights

TheImitationGame-BCLiberty v Government Communications Headquarters ( IPT/13/77/H); Privacy International v FCO and others (IPT/13/92/CH); American Civil Liberties Union v Government Communications Headquarters (IPT/13/168-173/H); Amnesty International Ltd v The Security Service and others (IPT/13/194/CH); Bytes for All v FCO (IPT/13/204/CH), The Investigatory Powers Tribunal [2014] UKIPTrib 13_77-,  5 December 2014 – read judgment

Robert Seabrook QC is on the panel of the IPT and  David Manknell of 1 Crown Office acted as Counsel to the Tribunal  in this case. They have nothing to do with the writing of this post.

This is a fascinating case, not just on the facts or merits but because it is generated by two of the major catalysts of public law litigation: the government’s duty to look after the security of its citizens, and the rapid outpacing of surveillance law by communications technology. Anyone who has seen The Imitation Game, a film loosely based on the biography of Alan Turing, will appreciate the conflicting currents at the core of this case: the rights of an individual to know, and foresee, what the limits of his freedom are, and the necessity to conceal from the enemy how much we know about their methods. Except the Turing film takes place in official wartime, whereas now the state of being at “war” has taken on a wholly different character. Continue reading →

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Press has no direct role in welfare proceedings in Court of Protection

G (Adult), Re [2014]  (Associated Newspapers Limited intervening) EWCOP 1361 (1 May 2014) – read judgment

Sir James Munby, President of the Court of Protection has ruled that the Daily Mail has no standing to be joined as a party in welfare proceedings in relation to a vulnerable adult who has been declared by the courts as lacking capacity under the Mental Capacity Act. 

Background to the application

The court was concerned with a 94 year old woman, a British African Caribbean who  lives in her own home in London. G is 94 years old. G has never married and has no children. She has no family living in the UK.  She suffers from conditions that have limited her mobility; arthritis, rheumatism, a dislocation of her left knee and carpal tunnel syndrome. She also has high blood pressure and double incontinence. G rarely leaves home now, except for hospital appointments. Continue reading →

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“Imprecise” injunctions against Facebook unenforceable, says NI judge

Facebook-from-the-GuardianJ19 and Another v Facebook Ireland [2013] NIQB 113 – read judgment

The High Court in Northern Ireland has chosen to depart from the “robust” Strasbourg approach to service providers and their liability for comments hosted on their sites. Such liability, said the judge, was not consonant with the EC Directive on E-Commerce.

This was an application on behalf of the defendant to vary and discharge orders of injunction dated 27 September 2013 made in the case of both plaintiffs. One of the injunctions  restrained “the defendant from placing on its website photographs of the plaintiff, his name, address or any like personal details until further order.” These interim injunctions were awarded pursuant to writs issued by the plaintiffs for damages by reason of  the publication of photographs, information and comments on the Facebook webpages entitled “Irish Blessings”, “Ardoyne under Siege” and “Irish Banter” on 11 September 2013 and on subsequent dates. Continue reading →