Welcome to the Winter edition of the NHS LA Human Rights E-Bulletin. This has been produced by Hempsons on our behalf and provides a quarterly update for Human Rights Act leads and others in our Member organisations, who use and apply human rights in their day to day work. The aim is to alert you to key cases, either in the English courts or in the European Court of Human Rights in Strasbourg, which are of relevance to the NHS.
There have been many interesting cases over recent months, and this edition covers a wide range of issues including clinical care, mental health, employment and negligence claims.
We hope you find the E-Bulletin interesting and useful. If you have any comments then please send them to [email protected].
Winter
2014/15
NHS Litigation Authority (NHS LA)
Prepared by John Holmes, Hempsons
Court authorises administration of blood to Jehovah’s Witness
IN THE MATTER OF S [2013] NIFAM 8
This decision of the Northern Ireland family court concerned the administration of blood products to a young man who lacked capacity. His family were practicing Jehovah's Witnesses and the resulting judgment discusses the interplay between a number of Human Rights considerations before ultimately prioritising the right to life.
Facts
This case concerns S, a 26 year old man, with severe learning disabilities who lives with his mother, P. P is a practicing Jehovah's Witness, often taking S to church and associated social activities.
The issue before the court related to a dental procedure. S had poor dental health and required the extraction of four teeth and exploration of two further teeth with the possibility of extraction. The plan proposed by the clinical team was for all procedures to be performed in one operation under a general anaesthetic. For such a procedure the clinical team required the availability of blood products for use in the event of severe bleeding.
The risk of requiring blood products in the course of the procedure was low. However, clinicians were not willing to proceed without this option in reserve. In the circumstances in which blood products were necessary, they would be used in order to save S's life, and there was no practical alternative.
Issues for the Court
There was no debate that S lacked the capacity to make decisions in relation to his dental care and treatment. As such, the clinical team sought the agreement of P as S’ mother and primary carer. At the conclusion of a number of meetings with the clinical team, P decided that, on the basis of her religious beliefs, she was unable to agree to the procedure which carried the risk of the use of blood products.
The human rights considerations before the Court were as follows:
Article 2 - (right to life) was engaged as there was a risk to S's physical health from both having the procedure and not having the procedure. Should the procedure go ahead without blood products in reserve there was a small but tangible risk of death to S by exsanguination.
Article 3 - (freedom from inhuman and degrading treatment) was an important consideration, again, on both sides of the argument. S experienced pain and discomfort as a result of his poor dental health. However, S regularly participated in a religious group which may consider the administration of blood products to be inhuman and/or degrading.
Article 8 - (right to private and family life) was also considered by the court. S had a strong and mutually beneficial relationship with his mother, P, and it was agreed by the court that it would cause great distress to P if S were provided with blood products.
Decision
The presiding judge, Morgan LCJ, concluded in favour of the application - he declared that the use of blood products would be permitted in circumstances where it is necessary to preserve life. In providing his judgment he reiterated the role of the court in these matters as set out in the case of Herczgfalvy v Austria [1993] EHRR 432:
'The established principles of medicine are admittedly in principle decisive in such cases; as a general rule, a measure which is a therapeutic necessity cannot be regarded as inhuman or degrading. The Court must nevertheless satisfy itself that the medical necessity has been convincingly shown to exist'
Key Points
The first point to take from this case is the concept of therapeutic necessity. If a clinical team are proposing a therapeutic plan which is necessary in order to prevent pain or preserve the life of the patient, and there are genuinely no alternatives to this plan, the court is unlikely to refuse it on the basis of contrary considerations. This case once more demonstrates how powerful other factors have to be in order to outweigh the individual’s right to life.
The second lesson is the necessity for robust evidence of high quality decision making. It will be remembered that if someone like S had capacity then no best interests’ assessment would be needed and he would be entitled to refuse even life-saving treatment.
http://www.bailii.org/nie/cases/NIHC/Fam/2013/8.html
The extension of Article 2 and victim status in Fatal Accident claims -
the continuing impact of Rabone
(1) RICHARD RABONE (IN HIS OWN RIGHT & AS PERSONAL REPRESENTATIVE OF THE ESTATE OF MELANIE RABONE) (2) GILLIAN RABONE v PENNINE CARE NHS FOUNDATION TRUST [2012] UKSC 2
In February 2012, the Supreme Court handed down Rabone as its first medical case. It found that the NHS not only owed a duty of care in negligence to inpatient psychiatric patients but also had duty to prevent suicide for some vulnerable patients under Article 2 of the European Convention of Human Rights. There was concern this would lead to defensive psychiatric practice increasing the number of patients detained under the Mental Health Act 1983.
Rabone has also had an impact on claims and inquests by:
Pushing the boundary of the Article 2 duty to protect life beyond those detained under the Mental Health Act. Since the obligation arises where there is the possibility of detention, lawyers are arguing that it applies in the community and acute hospitals.
Extending the class of relatives and others who may make a fatal accident claim beyond those listed as entitled to a bereavement award under the Fatal Accident Act 1976.
Supporting suggestions that any NHS or State body involvement in a death requires the Coroner to satisfy Article 2 and potentially call a jury at inquest.
Facts
Melanie Rabone was in her mid 20s with a history of depression. In March 2005, she attempted suicide and was admitted as a voluntary mental health patient. She was discharged but following a further attempt to cut her wrists, she agreed to a further voluntary admission and was diagnosed with severe recurrent depressive disorder. She made one further suicide attempt in April 2005 whilst an inpatient and was considered to be a suicide risk. Following her request for home leave, she was assessed on a ward round with members of her family present. The treating consultant psychiatrist gave her two day leave over the weekend in the care of her family. On the second day, she hanged herself in a local park.
The Trust had admitted negligence but denied it had a mandatory human right duty to detain her and to prevent death as she had voluntarily admitted herself to hospital. It was argued, unsuccessfully, that the negligence system adequately provided redress for the deceased and her relatives.
Article 2 and the positive duty to protect life
The European Court of Human Rights has imposed obligations on the Council of Europe member states to protect the lives of prisoners, immigrants in detention and conscripts, recognising that the State has forced these vulnerable classes of people into places of potential danger where it assumes control over individuals. In 2008, the House of Lords extended this duty to protect life of detained mental health patients in Savage v South Essex Partnership NHS Foundation Trust. This failure was distinct from the duties owed under the law of negligence and arose owing to the patient’s vulnerability and the State through the hospital having taken over
control of her activities. It found that the NHS had failed to take measures to avoid the “real and immediate” risk the patient posed to herself as she succeeded in committing suicide whilst detained.
Rabone took the Savage analysis further by concluding there was no difference between the voluntary and detained mental health patient under Article 2; the NHS controlled both groups, despite the voluntary patient’s consent to treatment. The Supreme Court recognised autonomous individuals have a right to take their own life if that is what they truly want, but from the cases of Savage and Rabone it appears that the presumption of capacity is potentially reversed if the individual has a history of mental illness.
Rabone has already had an impact on Accident and Emergency Services in a case where an NHS Trust was criticised for not assessing a vulnerable young man who self-presented, then left the department before a review could be carried out and committed suicide (E v St George’s
NHS Trust, Wandsworth PCT and South West London Mental Health Trust). Extension of “Victim” Status
Under the Fatal Accident Act 1976, the parents of an adult child cannot obtain financial compensation for bereavement under the law of negligence. In Rabone, the parents could only recover compensation for their anguish by obtaining a declaration of breach of human rights. The extent of ‘victim’ status under the Human Rights Act 1998 is not limited. A potential claimant simply needs to establish a close link with the deceased. Therefore, the natural extension of
Rabone is that any relative or close friend who is not recognised as qualifying for a bereavement award under the Fatal Accident Act 1976 could recover under the Human Rights Act 1998. This can cause practical difficulty when assessing the potential value of a claim when it can be unclear who can claim and how many relatives of the deceased may claim in the future.
Inquest Practice
Lawyers have used Rabone to argue that some types of inquest involving NHS care must be an Article 2 inquest. Should a Coroner agree, this assists families with obtaining public funding for any legal representation at inquest and means the cost and reputational risk to the NHS Trust increases. Lawyers have argued those receiving community treatment, living in supported accommodation and receiving treatment in hospital for physical illness all satisfy the “assumption of control”, vulnerability and “real and immediate risk” required by Rabone. Such arguments can be resisted by focusing on the assumption of control and suggesting that it cannot be satisfied by someone living in the community who is not at risk of detention under the Mental Health Act. However where the claim is that the State should have extended control and assessed the patient for detention, the courts may side with the family.
http://www.bailii.org/uk/cases/UKSC/2012/2.html
Human rights challenge to hospital discharge
R ( HALL) v (1) UNIVERSITY COLLEGE LONDON HOSPITALS NHS FOUNDATION TRUST (2) SECRETARY OF STATE FOR JUSTICE [2013] EWHC 198 (Admin)
This decision of the High Court relates to complex legal proceedings concerning healthcare in prison and the appropriate procedures for discharge. The presiding judges concluded that the threshold is high for bringing successful human rights claims.
Facts
Mr Hall, a man in his thirties, suffers with an incurable genetic disease of the brain and spinal cord that impacts on most of his bodily functions, causes progressive disablement and significantly reduces his life expectancy. He is confined to a wheelchair and needs around the clock care from two care assistants.
On 6 July 2012 Mr Hall was sentenced to three years imprisonment for importing cocaine. Approximately six weeks into this sentence, Mr Hall was admitted to University College Hospital London. After an admission of approximately four months the hospital considered Mr Hall to be fit for dischargeback to prison
Since his conviction Mr Hall had commenced a number of different legal proceedings to appeal his sentence and his treatment by the prison. Following the decision to discharge by the Hospital he applied to judicially review the decision. The Court rolled all the legal proceedings into one to be heard by three Judges of the criminal court of appeal. Unusually the same court therefore dealt with the appeal against sentence and the public law allegations against the hospital and prison service.
Issues for the Court Article 2: right to life
Mr Hall submitted that his medical treatment in prison, up until his admission to hospital on 22 August 2012, was inadequate to the point that it had put his life at risk and reduced his life expectancy and the quality of his remaining life. He argued that the medical care provided by the prison breached his Article 2 rights. Consequently, it was Mr Hall’s case that the decision to discharge him from hospital back to prison would also breach his Article 2 rights, as his life would once more be put in danger due to the inadequate provision for his medical needs.
The court found that Mr Hall’s deterioration in health prior to his admission to Hospital was not caused by a general lack of his health care whilst in prison, but by the longstanding use of a drug prescribed for heart arrhythmia, a condition resulting from his underlying genetic disorder. The deterioration in health was therefore found to be a consequence of his underlying progressive disorder only.
The court also heard the details of the joint hospital/ prison care plan put in place to provide Mr Hall with his medical, nursing, physiotherapy and other care needs following discharge from hospital. The court found that the hospital’s decision to discharge Mr Hall was based on sound
clinical judgement, made only when the hospital was of the opinion that he would be safe under the care of the prison.
The court concluded that together the prison and the hospital had agreed and facilitated a treatment programme that afforded safe and appropriate medical care to Mr Hall. As such there was no evidential basis upon which to assert that to discharge Mr Hall to be treated in prison placed his life in danger.
Article 3: Inhumane and degrading treatment/ Article 8: right to a private and family life Mr Hall argued that whilst the treatment in prison was neither torture nor inhumane, it did amount to degrading treatment under Article 3. The court confirmed that it was not their role to assess whether the care provided by the prison to Mr Hall fell short of reasonable; their role was to determine whether the treatment received breached his human rights.
Mr Hall raised a number of complaints that he argued amounted to degrading treatment. Examples included personal hygiene arrangements and having to use a commode instead of a disabled toilet (which was available), lack of proper visiting facilities for lawyers and family, and being handcuffed during transport e.g. to a medical appointment. A number of points raised by Mr Hall were found to be factually incorrect. Each complaint was considered by the court which found that the evidence did not support his complaints.
The court found that Mr Hall’s treatment in prison did not reach the requisite high threshold to amount to degrading treatment. The court concluded that simply because the level of care was less than that to which Mr Hall was accustomed it did not amount to a violation of Article 3. Having found no violation of Article 3, the court dismissed the Article 8 (respect for one private and family life) claim as having no relevance.
Sentencing
Mr Hall failed to argue his case successfully under the Human Rights Act. However, having reviewed the sentencing decision by the criminal court, the Judges reduced his sentence from three years to eighteen months on the basis of the severity of his medical complications and the degree of deterioration that can be expected. As a result Mr Hall was discharged from hospital to his home. In effect he achieved his objective of avoiding a return to prison even if his civil claim failed.
Key points:
On an academic level this case shows that the threshold for successful claims under Articles 2 and 3 is high. To succeed on the basis of Article 3, for instance, there must be clear evidence of degrading treatment and its effects.
On a more practical level this case stresses the importance of a thorough and considered discharge process with clear and evidenced multi-disciplinary input.
http://www.bailii.org/ew/cases/EWHC/Admin/2013/198.html
Human rights challenge to fatal accidents compensation fails
LAURIE SWIFT v SECRETARY OF STATE FOR JUSTICE [2013] EWCA Civ 193
In this case the Court of Appeal has provided clarity on the class of dependents entitled to bring a claim under the Fatal Accidents Act.
Facts
Alan Roberts Winters was fatally injured in an accident at work caused by the admitted negligence of a third party. He had been living with the Claimant for approximately six months before his death. She gave birth to his child after his death.
The child was able to bring a claim for loss of dependency under section 1 (3) (e) of the Fatal Accidents Act 1976 (FAA). The Claimant could not bring such a claim as she and the deceased were not married and nor had they been co-habiting for two years as required by Section 1(3)(b) of the FAA. Nor could she claim a bereavement award under the FAA.
Issues for the Court
The Claimant brought a claim against the Secretary of State on the basis that section 1(3)(b) of the FAA was incompatible with her right not to be discriminated against under Article 13 of the Convention and/or her right to respect for family life under Article 8 of the Convention.
Appeal Judgment
Eady J dismissed the claim at first instance on the basis that “it is legitimate for the legislature to
take steps to limit the liability of tortfeasors for loss caused to individuals who are not the primary victims of the wrongdoing in question.”
The Court of Appeal (The Master of the Rolls, Lord Justice Lewison and Lord Justice Treacy) upheld the judgment. The Master of the Rolls giving judgment concluded that there was no discrimination within the meaning of Article 14. The European Court of Human Rights has confirmed on a number of occasions that “discrimination means treating differently, without an objective and reasonable justification”. Differing treatment has no such justification unless it is to pursue a legitimate aim and the means of achieving that aim was proportionate to the aim. The parties accepted that there was a legitimate aim in limiting the right of action of dependents to those relationships with “some degree of permanence and dependence” and the legislature was entitled to a generous margin of discretion in relation to this issue of social and economic policy.
The Court of Appeal also confirmed that the requirement of co-habitation for two years was a proportionate means of securing the legitimate aim of limiting the class of dependents. Parliament was entitled to require some means of proving the requisite degree of permanence to allow a claim under the FAA.
Key points
The class of dependents entitled to bring a claim under the FAA is restricted to those provided by Section 1 (3)(b).
That class does not include a partner who had been co-habiting with the deceased for less than two years.
The Law Commission has recommended that the class of dependents be widened to omit the requirement of two years’ co-habitation and this is likely to be implemented by Parliament in the future.
This case can be distinguished from the “detention cases” and in particular Rabone v Pennine Care NHS Foundation Trust which concerned the right to life under Article 2 and where the Supreme Court concluded that the parents of the Claimant, an adult, were ‘victims’ under the HRA and therefore entitled to damages as a remedy. Rabone, in effect, extends the class of persons who can make a claim where Article 2 has been breached, as explained in our separate article in this E-Bulletin.
http://www.bailii.org/ew/cases/EWCA/Civ/2013/193.html
Assisted dying challenges fail
R (on the application of JANE NICKLINSON (ADMINISTRATRIX OF THE ESTATE OF TONY NICKLINSON) (Appellant) v MINISTRY OF JUSTICE (Respondent) & (1) DIRECTOR OF PUBLIC PROSECUTIONS (2) ATTORNEY GENERAL (Interested Parties) : R (on the application of PAUL LAMB) (Appellant) v MINISTRY OF JUSTICE (Respondent) & (1) DIRECTOR OF PUBLIC PROSECUTIONS (2) ATTORNEY GENERAL (Interested Parties) & (1) CNK ALLIANCE LTD (CARE NOT KILLING) (2) BRITISH HUMANIST ASSOCIATION (Interveners) [2013] EWCA Civ 961
Not all rights under the ECHR are equal. Some (for example, the right to life under Article 2 and the prohibition of torture under Article 3) are more fundamental than others and virtually no state interference with them is tolerated.
Others are expressly qualified and permit state interference under specified conditions. One such is the right to respect for private life under Article 8. This has already been held to include the right to determine when and how life should end. But interference with that right by the state can be permitted where:
It is in accordance with the law.
Is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedom of others. Facts - The Court Challenge
Article 8: right to respect for private life
The cases were brought by the family of the late Tony Nicklinson and by Paul Lamb, both of whom suffered catastrophic physical injuries, and additionally on behalf of an individual known pseudonymously as “AM”.
State interference with their Article 8 rights came under consideration by the Court of Appeal in these recent “assisted dying” cases, where the interference is that it is a criminal act to assist with suicide under section 2 (1) of the Suicide Act 1961. The issue was whether this interference was a justified and proportionate intrusion in the cases of individuals who lacked the physical or mental capacity to end their own lives and therefore could only do so with the assistance of others – who then risked prosecution for assisting a loved one in avoiding a distressing and undignified end to life.
This was challenged by the applicants as an inflexible ‘blanket ban’ which inappropriately abrogated their rights.
Appeal Court decision
The Appeal Court dismissed the appeals and held that the existing law criminalising assisted dying is a permissible interference with the right of individuals. The Court of Appeal’s ruling reviewed previous decisions on this issue by the UK Supreme Court and the European Court of Human Rights in Strasbourg where the ban had been upheld as a necessary and proportionate
measure for the protection of vulnerable individuals. All these cases require a balancing act between, on the one hand, upholding the individual’s autonomy and considerations of public health and safety on the other. Here the Courts have identified the key factors to be the vulnerability of the persons protected by the interference and the risk and likely incidence of abuse if any relaxation of it is permitted. The judgments refer to the numerous reviews of the subject in extra-judicial contexts, such as Parliamentary committees, where the conclusion has always been that there should be no change in the existing law.
Judges have also relied on the wider principle that laws must be of general application and that allowing too many exceptions or qualifications leads to uncertainty and lack of clarity. They have also recognised the particular vulnerability of the terminally ill, elderly or otherwise infirm feeling pressurised and feeling that they are being a burden on others. A system which places such value on life must avoid erosion of the principle if it allows anything that might be taken as encouraging suicide or euthanasia.
Against this background, Courts at all levels have consistently ruled that the existing law criminalising assisted dying is a permissible interference with the right of individuals to determine how and when to die. Furthermore, they have indicated that any movement from the ‘blanket ban’ would be a step of such significance that it should not be left to judges but should be a matter for Parliament. These rulings may seem harsh on those confronted either personally or on the part of a loved one with the prospect of a painful and undignified decline into death. Statements of sympathy and respect for the highly dignified manner in which such parties have conducted themselves in bringing these applications before the Courts will do little to soften the blow. We will continue to read reports, usually in the context of criminal prosecutions, of ‘mercy killings’ by spouses or relatives themselves worn down by years of exhausting care in an ultimately hopeless cause. The road to the Dignitas Clinic in Switzerland (not a member of the Council of Europe and therefore not a party to the Convention) may beckon to those with the necessary resource and determination notwithstanding the guidelines issued by the Director of Public Prosecutions (see link below). What is evident is that there will be no change to the existing law without a wide-reaching debate which lies far outside the scope of a judge dealing with a specific application and can only be performed by the legislature.
Key points
The Court of Appeal refused to change the law on assisting suicide on human rights grounds - it remains to be seen whether the Supreme Court will look at this again.
Practitioners need to be aware that the scope of ‘encouraging or assisting’ suicide, last subject to statutory review as recently as 2009, stretches very wide and should be on their guard against taking any steps, however well-meaning, that might result in that outcome.
Those advising families who wish to know how the law will be interpreted may also be referred to the Director of Public Prosecutions Guidelines for prosecutors dealing with cases of alleged assisted suicide.
http://www.bailii.org/ew/cases/EWCA/Civ/2013/961.html
http://www.cps.gov.uk/publications/prosecution/assisted_suicide_policy.html
Human rights and restricting Litigants in Person
PRZEMYSLAW NOWAK v (1) NURSING & MIDWIFERY COUNCIL (2) GUY'S & ST THOMAS' NHS FOUNDATION TRUST [2013] EWHC 1932 (QB)
In July the High Court confirmed that the civil rights of a litigant in person could be restrained without infringing upon his Article 6 rights under the European Convention on Human Rights (ECHR).
Facts
Mr Nowak was formerly employed by the second defendant, Guy’s & St Thomas’ NHS Foundation Trust (the Trust) as a nurse and was registered with the first defendant, the Nursing and Midwifery Council (the NMC). Mr Nowak was dismissed by the Trust in January 2012 and was subsequently the subject of disciplinary proceedings before the NMC.
His claim arose from alleged breaches of the Data Protection Act and Protection from Harassment Act where he claimed to have suffered bullying and harassment at work, which caused him to become ill and take sick leave.
The NMC were investigating allegations that he had fraudulently claimed sick leave and participated in a training programme without the Trust’s permission.
Having issued proceedings in October 2012, Mr Nowak made no less than eight unsuccessful applications over a five month period, all of which were found to be wholly without merit. His claims were dismissed on 22 March 2013. Even after the striking out of his claim, Mr Nowak made a number of subsequent applications to the court, which were also dismissed without merit. Judicial findings that cases which have been struck out are ‘totally without merit’ can open the door to a restraint order.
Issues for the Court Article 6 ECHR
Article 6 the right to a fair trial, provides that an individual is entitled to a "fair and public hearing" in the determination of their civil rights, obligations or criminal charges. In order for Article 6 to be engaged there must be a real and genuine dispute over rights and obligations that are recognised by domestic law.
Grounds for his restraint order
Having ruled that a number of applications brought by Mr Nowak were totally without merit, Mr Justice Leggatt considered whether a civil restraint order as defined by Rule 2.3(1) of the Civil Procedure Rules was appropriate in this case. The rules prescribe that one of three types of civil restraint order may be made once the criteria set out in the Practice Directions have been met; (i) a limited restraint order, (ii) an extended restraint order, or (iii) general civil restraint order. The rationale for making such an order is that a litigant who makes claims or applications which have absolutely no merit harms the administration of justice by wasting the limited time and
resources of the courts. Coupled with this, the right of access to the court is not absolute. Consequently Mr Justice Leggatt found that it is open to States to impose restrictions on would -be litigants so long as such restrictions are not so wide ranging as to impair the rights protected by the Convention and so long as the principle of proportionality is applied.
In this instance, Mr Justice Leggatt considered the grounds for making an extended civil restraint order and whether such order would impinge upon Mr Nowak’s Article 6 rights, as he argued.
Decision
Leggatt J decided that the court had to satisfy itself of three questions before an extended civil restraint order could be made. Satisfying the first ground set out in the Practice Direction, the court found that the litigant had “persistently issued claims or made applications which are totally without merit”. Bhanmjee v Forsdick held that persistence in this context has an element of the “irrational refusal to take “no” for an answer”.
Next the court considered whether such an order was necessary to protect the court’s process from abuse. To do this, the Judge undertook a risk assessment of the case. Having concluded there was a real risk of a further abuse of the court’s process, the proportionality of making such an order was considered as the final ground and the least restrictive order necessary was applied.
In making his order, Mr Justice Leggatt determined that a wider order was required from that of the default extended restraint order. So he directed that Mr Nowak obtain permission from the court before issuing any claim or making any application against either defendant in relation to any matter or against either party in relation to any matter arising from the instant case.
Key points
This is a helpful case for Trusts in reinforcing the contention that restrictions on access to the courts by vexatious litigants are compatible with Article 6.
Although each case will turn on their particular facts, where a party issues a number of claims or applications which are found to be totally without merit, particularly where the behaviour is persistent, a civil restraint order may be made restricting their access to the courts.
Whilst the court must be careful not to fetter a person’s right to a fair trial, the court has found such right is not absolute. Essentially the making of such an order requires careful consideration of risk, necessity and proportionality, however, this case demonstrates that it is a measure the courts are willing to take if the appropriate criteria are met.
http://www.bailii.org/ew/cases/EWHC/QB/2013/1932.html
Catholic midwives abortion case going to the Supreme Court
DOOGAN v GREATER GLASGOW AND CLYDE HEALTH BOARD [2013] CSIH 36
Two Scottish midwives successfully appealed against a decision that they could not refuse (because of their Roman Catholic religious beliefs) to supervise or manage staff involved in pregnancy terminations. However the Health Authority has now appealed to the Supreme Court in London.
Facts
Two senior midwives managing a hospital labour ward exercised their right of “conscientious objection” under the Abortion Act 1967 and the Nursing and Midwifery Council (NMC) Code of Conduct. They were not therefore required to be actively involved in pregnancy terminations except in an emergency situation as set out in the Act and Code.
Both midwives had been employed prior to 2007 to manage the labour ward where pregnancy terminations had always taken place, however there was an increase in terminations in 2007 and 2010. The midwives’ duties included management of staff providing patient care, support for junior staff and effective deployment of resources. They argued that the increase in pregnancy terminations on the ward meant that they were now involved in managing staff who were actively involved in pregnancy terminations and that their right to ‘conscientious objection’ should cover their management of such staff.
The midwives raised a grievance in September 2009 which was not upheld (even after an appeal) by the hospital. The hospital decided that the midwives’ management role did not require them to provide direct 1:1 care for pregnancy termination. The hospital relied on Royal College of Midwives and NMC codes of conduct restricting the right of ‘conscientious objection’. The midwives then brought a judicial review case against the hospital, arguing that their decision was unreasonable.
Issues for the Court
Article 9: right to “freedom of thought, conscience and religion”
The Scottish Court of Session had to decide whether managing staff who treat women for pregnancy terminations was ‘participation’ in pregnancy terminations, so that the midwives could refuse to manage those staff in accordance with their right to ‘conscientious objection’ under the Abortion Act 1967.
Further, the Court had to decide whether the midwives’ right to “freedom of thought, conscience and religion” under Article 9 of the European Convention on Human Rights (ECHR) had a wider meaning here, so as to bolster their right to refuse to ‘participate’ under the Abortion Act. The
midwives did not bring a separate free standing claim that their rights to freedom of religious beliefs under Article 9 of the ECHR were infringed.
Decision of the Scottish Outer House
This Court decided on 29 February 2012, that the midwives were not “participating in treatment”
for pregnancy terminations by managing the staff who were so involved and further, that the midwives’ rights to freedom of their religious beliefs under the ECHR were not interfered with. The Court found that the Abortion Act 1967 was concerned only with authorising action which would previously have been criminal and that the right to ‘conscientiously object’ was not unrestricted, since it did not extend to other situations in the Act, nor to an emergency situation. It found the midwives were sufficiently removed from direct involvement so as to afford appropriate respect for and accommodation of their beliefs and knowingly accepted that these management duties were to be part of their job. Also, they would have known the RCM view that the right of ‘conscientious objection’ extends only to ‘active participation’ in the treatment. Decision of Scottish Inner House
On 24 April 2013 Ms Doogan and Ms Wood appealed and won. This Court said that the right of ‘conscientious objection’ extends, not only to the actual medical or surgical termination, but to the whole process of treatment given for that purpose. Also the only circumstance when the objection cannot be used is when the termination is necessary to save life or prevent permanent injury, because then, the real purpose is to save a life/prevent serious injury rather than effect a termination.
This Court agreed with the midwives that their job required them to participate in treatment for terminations, because the range of tasks required (e.g. emotional support of all midwives involved in terminations) were part of the ‘treatment’. The Court decided that ‘treatment’ for pregnancy termination is not just the termination, but also includes before and after care, and care where no termination actually takes place.
The Court did not give much weight to the RCM and NMC guidance on the right to ‘conscientious objection’ being restricted.
As the Court gave a broader application to the right to conscientiously object under the Abortion Act, it did not need to consider the Article 9 ECHR point.
Key points
This Scottish judgment could impact upon interpretation of RCM, NMC and GMC guidance relating to the Abortion Act and the right of conscientious objection. However, with an appeal to the Supreme Court in London on the horizon, any amendments may wait until the final decision.
This decision as it stands could mean that staff with certain beliefs can refuse to be involved in a wider range of activities to do with pregnancy termination and employers may wish to take note.
http://www.bailii.org/scot/cases/ScotCS/2013/2013CSIH36.html
