Judicial review update

If you haven’t heard the government’s
recent jibing of article 8 of the European Convention on Human Rights (ECHR), it will come as a shock that it could be dubbed one
of the most ‘abused’ rights when you collate articles over the past three years.

Its operation has been particularly lamented in the context of immigration and extradition law. However, in this last quarter, the parameters
of article 8 have been tested in the medical treatment sphere.

In McDonald v United Kingdom ECHR 141 (2014), the European Court of Human Rights (ECtHR) dealt with a judicial review that had gone up through the domestic courts, concerning the right of a local authority to withdraw or amend care support where the applicant’s circumstances remain the same but a cheaper alternative is available.

Elaine McDonald, 67, suffered from severely limited mobility and, after hospitalisation because of a stroke in 1999, she required support to continue living on her own in her London flat.

In 2008, McDonald was assessed by the Royal Borough of Kensington and Chelsea as having an eligible need for support during the day and night and initially a sleep-in care worker was provided for seven nights a week.

After a meeting with the local authority in December 2008, a formal decision was taken to reduce the applicant’s weekly care on the basis that McDonald could be provided with incontinence pads in lieu of night-time care.

Disproportionate interference

The applicant complained that this reduction disproportionately interfered with her right to respect for her family and private life under article 8 of the ECHR. In particular, she submitted that being forced to use incontinence pads exposed her to considerable indignity.

The court referred to previous case law to reaffirm the definition of “private life” and reference was made to the R (Pretty) v DPP [2002] case, concerning assisted suicide, to demonstrate that McDonald was faced with living conditions that conflicted with her “ideas of self and personal identity”.

It was concluded that the violation fell within the scope of article 8 of the ECHR and that the reduction in nighttime care could have an impact on the applicant’s enjoyment of her private life.

Reiterating the decisions of the Court of Appeal and Supreme Court, the ECtHR confirmed a breach of UK statutory duties between November 2008 and November 2009 to provide the applicant with the necessary assistance between the first care plan review and the decision to reduce her night-time care.

The Court of Appeal and the Supreme Court ultimately rejected the claim for interference with the applicant’s private life and the local council’s approach was deemed to be both proportionate and justified from November 2009 onwards.

Assisted dying

Moving from improving the quality of life to ending it, the most recent challenge concerning the right to die concluded in the Supreme Court
in the past quarter.

In R (on the application of Nicklinson and another) (Appellants) v Ministry of Justice (Respondent); R (on the application of AM) (AP) (Respondent) v The Director of Public Prosecutions (Appellant) [2014] UKSC 38, the claimants sought to argue that the current law, section 2 of the Suicide Act 1961, was incompatible with the right to privacy and dignity under article 8. The effect of section 2 made it a crime to encourage or assist suicide.

The case focused on whether the current
law would have granted such a declaration
in these proceedings, particularly where the means of death were ones that could have
been autonomously operated by the disabled appellant, leaving no doubt as to the voluntary and rational nature of his decision.

Tony Nicklinson suffered with locked-in syndrome and died from self-starvation before
the case reached the Court of Appeal. His wife then continued the action. He was completely paralysed after a catastrophic stroke and had applied to the High Court for either a declaration that it would be lawful for a doctor to assist him in ending his life, or, if that was refused, a declaration that the current state of the law was incompatible with his right to a private life under article 8 of
the convention.

Paul Lamb, paralysed after suffering a car crash, was added as a claimant in the Court of Appeal. The Supreme Court held, unanimously, that the question of whether the current law on assisted suicide was incompatible with article 8 lay within the UK’s margin of appreciation. It was therefore
a domestic question for the UK courts to decide under the Human Rights Act 1998.

It was agreed that article 8 involved the consideration of issues that parliament was inherently better qualified to assess than the courts, and that under present circumstances
the courts should respect the assessment.

The second appeal concerned the case of
an individual known as ‘Martin’, who suffered a brainstem stroke in August 2008, which paralysed him. Martin wished to travel to Switzerland to
seek relief through assisted dying organisation Dignitas. Proceedings began to seek an order from the Director of Public Prosecutions (DPP) that their 2010 policy on the subject should be amended, to allow carers to assist suicide without the risk of being prosecuted.

The Supreme Court unanimously allowed the DPP’s appeal. While the claim was dismissed in the High Court, it was partially successful in clarifying that the 2010 policy was not sufficiently clear in relation to healthcare professionals.*

Life beginnings

The Administrative Court also had to grapple with the potential beginnings of life with reference to article 8 in Rose, R (on the application of) v Thanet Clinical Commissioning Group [2014] EWHC
1182 (Admin).

The claimant sought to have her eggs frozen prior to her undergoing a bone marrow transplant and chemotherapy to control her Crohn’s disease. There was a risk that following treatment for her condition, she would be rendered infertile.

The 25-year-old wanted to secure the best chance of having children in later life. Being on benefits, so unable to afford the procedure herself, she sought funding for oocyte cryopreservation (to have her eggs extracted and frozen). Her application was refused.

Although the National Institute for Health and Care Excellence (NICE) guidelines seemed to suggest that oocyte cryopreservation should be offered to women about to go through the same sort of treatment that the claimant was about to,
in March 2013 the triage group considering the claimant’s case concluded that the defendant’s policy relating to assisted reproductive therapies precluded the funding of oocyte cryopreservation other that in exceptional circumstances.

It said that there was nothing clinically exceptional about the claimant’s case. It may have been considered that women undergoing cancer treatments, for example, would benefit from oocyte cryopreservation.

The defendant then, in April 2013, introduced
a policy in light of the NICE guidelines disagreeing with its view and maintaining an exceptionality criterion. The claimant argued a number of points, including that the defendant had behaved irrationally for failing to properly take into account the NICE guidelines, the defendant had breached its duty under section 149 of the Equality Act 2010, and had breached article 8 and article 12 when read with article 14 – the last two being comparable arguments under differing legal regimes.

Aside from finding that the April 2013 policy was unlawful because merely disagreeing with NICE’s evidence on the effectiveness of oocyte cryopreservation, the claimant’s challenged was dismissed. The triage group’s role was solely to determine clinical exceptionality and not to question the defendant’s policy.

The court found that the discrimination arguments were based on a flawed assumption that men and women should be treated similarly even though women only produce oocytes and men only produce semen. The facts according to the judge were that ultimately there were fundamental biological differences that did not allow for gametes to be treated or considered equally. Thus the Equality Act and article 8 arguments failed.

Canvassing the decisions in the treatment field, the abuse of article 8 is clearly not as prevalent as the government might have you believe. While the challenges presented were successful overall, it cannot be denied that some gains were made in understanding where the boundaries of article 8 lie – beneficial for both claimants and defendants. SJ

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