Category: Health Professions

Gray v Germany: ECHR 22 May 2014

ECHR Article 2-1
Effective investigation
Criminal proceedings in Germany against German doctor responsible for a patient’s death in the United Kingdom: no violation
Facts – The applicants’ father died in his home in the United Kingdom as a result of medical malpractice by a German doctor who had been recruited by a private agency to work for the British National Health Service. Criminal proceedings were instituted against the doctor in the United Kingdom. Following a request by the British prosecution authorities for legal assistance, the German authorities also initiated criminal proceedings in Germany, which resulted in the doctor’s conviction for having negligently caused the father’s death. In view of the German proceedings, the German authorities did not execute the European Arrest Warrant issued against the doctor in the United Kingdom and refused to extradite him. Accordingly, the criminal proceedings brought against the doctor in the United Kingdom had to be discontinued.
Law – Article 2 (procedural aspect): The criminal proceedings conducted in Germany had enabled the investigative authorities to determine the cause of death and establish the doctor’s responsibility therefor. In view of the available evidence taken as a whole, the prosecution authorities’ decision to apply for the doctor’s conviction in summary proceedings without a main hearing had been justified.
As to the applicants’ allegations that they had not been sufficiently involved in the German proceedings, the Court noted that under the German rules of criminal procedure the prosecution authorities were not obliged to inform the applicants on their own initiative about the institution or progress of the proceedings. In the Court’s view, in the instant case such an obligation did not follow from the procedural requirements inherent in Article 2 – 1 of the Convention either. Although in situations where the responsibility of State agents in connection with a death was at stake, Article 2 – 1 required that the next of kin be involved in the procedure to the extent necessary to safeguard his or her legitimate interests, in contrast the procedural obligation imposed by Article 2 in the sphere of medical negligence did not necessarily require the provision of a criminal-law remedy so that it may therefore be arguable whether and to what extent the applicants’ involvement as next of kin was required where, as in the applicants’ case, the prosecution authorities had recourse to such a remedy on their own initiative. In any event, the applicants had been involved in the criminal proceedings against the doctor. Since the circumstances of the case had been sufficiently established in the course of the investigative proceedings, their participation at any main hearing could not have further contributed to the trial court’s assessment of the case. Indeed, even if a hearing had been scheduled the applicants would not have had the right to contest the trial court’s judgment with the objective of a heavier penalty being imposed. There was, therefore, nothing to establish that the legitimate interests of the deceased’s next of kin were not respected in the domestic proceedings.
In reality, the applicants’ complaint was that the doctor was convicted in Germany and not in the United Kingdom, where he may have faced a heavier penalty. The German authorities had, however, been obliged to institute criminal proceedings by operation of domestic law once they had learned of his involvement in the events surrounding the death and consequently had a basis under the relevant domestic and international law for their decision not to extradite him. The procedural guarantees enshrined in Article 2 do not entail a right or an obligation that a particular sentence be imposed on a prosecuted third party under the domestic law of a specific State.
In addition to the criminal proceedings, investigations regarding the doctor’s fitness to practice had also been conducted by the German authorities and the applicants had been granted an opportunity to provide further information. As a consequence of the disciplinary proceedings, the doctor had been reprimanded and fined.
Accordingly, the German authorities had provided for effective remedies with a view to determining the cause of the father’s death and the doctor’s responsibility for it. There was nothing to establish that the criminal investigations and proceedings instituted on the initiative of the German authorities in relation to the death had fallen short of the procedural guarantees inherent in Article 2-1.
Conclusion: no violation (unanimously).

49278/09 – Chamber Judgment, [2014] ECHR 503, 49278/09 – Legal Summary, [2014] ECHR 712
Bailii, Bailii
European Convention on Human Rights
Human Rights

Human Rights, Criminal Practice, Health Professions

Updated: 16 December 2021; Ref: scu.533843

Axon, Regina (on the Application of) v Secretary of State for Health and Another: Admn 23 Jan 2006

A mother sought to challenge guidelines issued by the respondent which would allow doctors to protect the confidentiality of women under 16 who came to them for assistance even though the sexual activities they might engage in would be unlawful.
Held: A person under 16 who was otherwise competent was entitled to seek medical assistance, but a parent also had responsibility for her welfare. The court remained bound by the decision in Gillick, and indeed the subsequent adoption of the UN Convention would move the answer further in the direction of respecting a child’s wishes: ‘it would be wrong and not acceptable to retreat from Gillick and to impose greater duties on medical professionals to disclose information to parents of their younger patients.’ The claimant said that the direction infringed her rights to family life. The courts had recognised a move away from parental rights as such over children. There was no interference.
A doctor could provide medical advice and treatment provided that the child was capable properly of understanding all relevant matters, that the doctor tried to dissuade the child, that the child was likely to commence sexual activity whether or not assistance was given, and that the doctor felt it to be in her best interests for the advice and treatment to be given.

Silber J
[2006] EWHC 37 (Admin), Times 23-Jan-2006, [2006] 2 WLR 1130
Bailii
United Nations Convention on the Rights of a Child, European Convention on Human Rights 8
England and Wales
Citing:
Binding – Gillick v West Norfolk and Wisbech Area Health Authority and Department of Health and Social Security HL 17-Oct-1985
Lawfulness of Contraceptive advice for Girls
The claimant had young daughters. She challenged advice given to doctors by the second respondent allowing them to give contraceptive advice to girls under 16, and the right of the first defendant to act upon that advice. She objected that the . .
Cited – Attorney-General v Guardian Newspapers Ltd (No 2) (‘Spycatcher’) HL 13-Oct-1988
Loss of Confidentiality Protection – public domain
A retired secret service employee sought to publish his memoirs from Australia. The British government sought to restrain publication there, and the defendants sought to report those proceedings, which would involve publication of the allegations . .
Cited – British American Tobacco UK Ltd and Others, Regina (on the Application of) v Secretary of State for Health Admn 5-Nov-2004
The claimants challenged the validity of regulations restricting cigarette advertisements, saying that greater exceptions should have been allowed, and that the regulations infringed their commercial right of free speech.
Held: The Regulations . .
Cited – Vo v France ECHR 8-Jul-2004
Hudoc Preliminary objection rejected (ratione materiae, non-exhaustion of domestic remedies) ; No violation of Art. 2
A doctor by negligence had caused the termination of a pregnancy at the 20 to 24 weeks . .
Cited – Regina v Department of Health, Ex Parte Source Informatics Ltd CA 21-Dec-1999
Where information was given by a patient to the pharmacist, and he took the data, stripping out any possibility of the individual being identified, the duty of confidence which attached to the prescription was not breached by the passing on of the . .
Cited – Campbell v Mirror Group Newspapers Ltd (MGN) (No 1) HL 6-May-2004
The claimant appealed against the denial of her claim that the defendant had infringed her right to respect for her private life. She was a model who had proclaimed publicly that she did not take drugs, but the defendant had published a story . .
Cited – Venables and Thompson v News Group Newspapers and others QBD 8-Jan-2001
Where it was necessary to protect life, an order could be made to protect the privacy of individuals, by disallowing publication of any material which might identify them. Two youths had been convicted of a notorious murder when they were ten, and . .
Cited – Yousef v The Netherlands ECHR 5-Nov-2002
In ‘judicial decisions where the rights under article 8 of parents and of a child are at stake, the child’s rights must be the paramount consideration.’ . .
Cited – Z v Finland ECHR 25-Feb-1997
A defendant had appealed against his conviction for manslaughter and related offences by deliberately subjecting women to the risk of being infected by him with HIV virus. The applicant, Z, had been married to the defendant, and infected by him with . .
Cited – Mabon v Mabon and others CA 26-May-2005
In the course of an action regarding their residence arrangements, the older children of the family sought an order to be allowed separate legal representation, and now appealed a refusal.
Held: The rights of freedom of expression and to . .
Cited – Hewer v Bryant CA 1969
The parental right to custody is: ‘a dwindling right which the courts will hesitate to enforce against the wishes of the child, and the more so the older he is. It starts with a right of control and ends with little more than advice.’
One . .
Cited – X v Netherlands ECHR 1974
(Comission) A child asserted her right to live where she pleased.
Held: The state has an obligation to provide for its children to live with their parents in normal circumstances: ‘As a general proposition, and in the absence of any special . .
Cited – Regina v Special Adjudicator ex parte Ullah; Regina v Secretary of State for the Home Department HL 17-Jun-2004
The applicants had had their requests for asylum refused. They complained that if they were removed from the UK, their article 3 rights would be infringed. If they were returned to Pakistan or Vietnam they would be persecuted for their religious . .
Cited – MS v Sweden ECHR 27-Aug-1997
Hudoc Sweden – communication, without the patient’s consent, of personal and confidential medical data by one public authority to another and lack of possibility for patient, prior to the measure, to challenge it . .
Cited – Nielsen v Denmark ECHR 28-Nov-1988
The applicant, a minor, complained about his committal to a child psychiatric ward of a state hospital at his mother’s request. The question was whether this was a deprivation of his liberty in violation of article 5. The applicant said that it was, . .
Cited – Kjeldsen, Busk, Madsen and Peddersen v Denmark ECHR 7-Dec-1976
The claimants challenged the provision of compulsory sex education in state primary schools.
Held: The parents’ philosophical and religious objections to sex education in state schools was rejected on the ground that they could send their . .
Cited – Handyside v The United Kingdom ECHR 7-Dec-1976
The appellant had published a ‘Little Red Schoolbook’. He was convicted under the 1959 and 1964 Acts on the basis that the book was obscene, it tending to deprave and corrupt its target audience, children. The book claimed that it was intended to . .
Cited – The Sunday Times (No 1) v The United Kingdom ECHR 26-Apr-1979
Offence must be ;in accordance with law’
The court considered the meaning of the need for an offence to be ‘in accordance with law.’ The applicants did not argue that the expression prescribed by law required legislation in every case, but contended that legislation was required only where . .
Cited – K v United Kingdom ECHR 1986
(Commission) The existence of family ties depends upon ‘the real existence in practice of close family ties.’ . .
Cited – Sporrong and Lonnroth v Sweden ECHR 18-Dec-1984
Balance of Interests in peaceful enjoyment claim
An interference with the peaceful enjoyment of possessions must strike a fair balance between the demands of the general interests of the community and the requirements of the protection of the individual’s fundamental rights. This balance is . .
Cited – Hendricks v Netherlands ECHR 1983
(Commission) In the context of article 8 the rights and freedoms of the child include his interests. ‘The Commission has consistently held that, in assessing the question of whether or not the refusal of the right of access to the non-custodial . .
Cited – Regina (Daly) v Secretary of State for the Home Department HL 23-May-2001
A prison policy requiring prisoners not to be present when their property was searched and their mail was examined was unlawful. The policy had been introduced after failures in search procedures where officers had been intimidated by the presence . .
Cited – Regina v Director of Public Prosecutions, ex parte Kebilene and others HL 28-Oct-1999
(Orse Kebeline) The DPP’s appeal succeeded. A decision by the DPP to authorise a prosecution could not be judicially reviewed unless dishonesty, bad faith, or some other exceptional circumstance could be shown. A suggestion that the offence for . .
Cited – De Freitas v The Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing and others PC 30-Jun-1998
(Antigua and Barbuda) The applicant was employed as a civil servant. He joined a demonstration alleging corruption in a minister. It was alleged he had infringed his duties as a civil servant, and he replied that the constitution allowed him to . .
Cited – Handyside v The United Kingdom ECHR 7-Dec-1976
The appellant had published a ‘Little Red Schoolbook’. He was convicted under the 1959 and 1964 Acts on the basis that the book was obscene, it tending to deprave and corrupt its target audience, children. The book claimed that it was intended to . .

Cited by:
Cited – TB, Regina (on the Application of) v The Combined Court at Stafford Admn 4-Jul-2006
The claimant was the child complainant in an allegation of sexual assault. The defendant requested her medical records, and she now complained that she had been unfairly pressured into releasing them.
Held: The confidentiality of a patient’s . .

Lists of cited by and citing cases may be incomplete.

Health Professions, Children, Human Rights

Leading Case

Updated: 11 December 2021; Ref: scu.237844

Hallett v Derby Hospitals NHS Foundation Trust: CA 30 Jul 2019

‘This appeal from Simler J (as she then was) raises a question of some importance concerning the extent to which the Defendant, an NHS Foundation Trust, complied with its contractual obligation to monitor whether junior doctors employed by it take 30 minute natural breaks after approximately 4 hours’ continuous duty. There are financial incentives (or penalties) for NHS Trusts to secure compliance with rest break requirements and other controls on hours and intensity of working: where valid monitoring demonstrates non-compliance junior doctors are entitled to a supplement to their pay, known as a Band 3 supplement, which is worth 100% of basic pay.’

[2019] EWCA Civ 1394, (2019) 169 BMLR 1
Bailii
England and Wales

Health Professions

Updated: 10 December 2021; Ref: scu.640099

LH v Latvia: ECHR 29 Apr 2014

Article 8-1
Respect for private life
Lack of precision of domestic law allowing public authority collection of applicant’s medical data: violation
Facts – During her delivery in a public hospital in 1997, the surgeon performed tubal litigation on the applicant without her consent. After failing to reach an out-of-court settlement, the applicant filed a civil action in damages against the hospital which was ultimately successful. Meanwhile, the director of the hospital wrote to the Inspectorate of Quality Control for Medical Care and Fitness for Work (‘MADEKKI’) requesting an evaluation of the medical treatment the applicant had received in his institution. During the subsequent administrative inquiry, MADEKKI requested and received the applicant’s medical files from three different medical institutions and ultimately issued a report concluding that no laws had been violated during the applicant’s childbirth. The applicant subsequently challenged the lawfulness of the administrative inquiry undertaken by MADEKKI, but her claim was dismissed, the Senate of the Supreme Court having found that domestic law authorised MADEKKI to examine the quality of medical care provided in medical institutions at their request.
Law – Article 8: Recalling the importance of the protection of medical data to a person’s enjoyment of the right to respect for private life, the Court had to examine whether the applicable domestic law had been formulated with sufficient precision and whether it afforded adequate safeguards against arbitrariness. In this connection it firstly observed that the applicable legal norms described the competence of MADEKKI in a very general manner and that there did not seem to be a legal basis for a hospital to seek independent expert advice from it in ongoing civil litigation. Furthermore, the domestic law in no way limited the scope of private data that could be collected by MADEKKI during such inquiries, which resulted in it collecting medical data on the applicant relating to a seven-year period indiscriminately and without any prior assessment of whether such data could be potentially decisive, relevant or of importance for achieving whatever aim might have been pursued by the inquiry. Finally, the fact that the inquiry had commenced seven years after the applicant’s sterilisation raised doubts as to whether the data collection was ‘necessary for purposes of medical treatment [or] provision or administration of health care services’ as required under domestic law. In view of the foregoing, the Court found that the applicable law had failed to indicate with sufficient clarity the scope of discretion conferred on competent authorities and the manner of its exercise.
Conclusion: violation (unanimously).
Article 41: EUR 11,000 in respect of non-pecuniary damage.

52019/07 – Legal Summary, [2014] ECHR 515
Bailii
European Convention on Human Rights

Human Rights, Health Professions

Updated: 03 December 2021; Ref: scu.526033

Blue Bio Pharmaceuticals Ltd and Another, Regina (on The Application of) v Secretary of State for Health (Mhra): Admn 22 May 2014

The Claimants complained that the Defendant wrongly refused to treat as medicinal products the large number of GCPs (glucosamine-containing product) described as ‘food supplements’.
Held: The claim failed.

Supperstone J
[2014] EWHC 1679 (Admin), CO/6789/2013
Bailii
Directive 2001/83/EC
Cited by:
Appeal from – Blue Bio Pharmaceuticals Ltd and Another v Secretary of State for Health and Another CA 17-Jun-2016
The company appealed against rejection of its challenge to the licensing and classification system applied to its products. . .

Lists of cited by and citing cases may be incomplete.

Health Professions, European

Updated: 03 December 2021; Ref: scu.525771

JR55 v Northern Ireland Commissioner for Complaints: CANI 28 Jan 2014

The GP challenges the power of the Commissioner to recommend the payment of the consolatory payment and he challenges the threatened exercise by the Commissioner of an asserted power to make a special report in relation to the matter to the Northern Ireland Assembly in the event of the GP failing to comply with the recommendation to pay the consolatory payment recommended.
Held: The commissioner did not have the powers he had purported to use, and in particular had no power to recommend monetary redress at all.

Higgins LJ, Girvan LJ, Coghlin LJ
[2014] NICA 11
Bailii
Northern Ireland
Cited by:
At CANI – JR55, Re Application for Judicial Review (Northern Ireland) SC 11-May-2016
The Court was asked about the powers of the Complaints Commissioner under the 1996 Order, and in particular about his powers in relation to general medical practitioners working in the National Health Service and whether, and if so in what . .

Lists of cited by and citing cases may be incomplete.

Health Professions

Updated: 01 December 2021; Ref: scu.522846

Flatley, Regina (on The Application of) v Hywel DDA University Health Board: Admn 13 Mar 2014

The Claimant sought to challenge the Welsh Ministers’ decision to replace the Accident and Emergency Department at the Hospital with an Emergency Nurse Practitioner led and General Practitioner supported model following a statutory review by the Defendants of LHB proposals, triggered by a CHC referral.

Hickinbottom J
[2014] EWHC 655 (Admin)
Bailii
England and Wales

Health Professions

Updated: 01 December 2021; Ref: scu.522545

Sokoll-Seebacher v Agnes Hemetsberger: ECJ 13 Feb 2014

ECJ Freedom of establishment – Public health – Article 49 TFEU – Pharmacies – Adequate supply of medicinal products to the public – Operating authorisation – Territorial distribution of pharmacies – Establishment of limits essentially based on a demographic criterion – Minimum distance between pharmacies

C-367/12, [2014] EUECJ C-367/12
Bailii
European

Health Professions

Updated: 30 November 2021; Ref: scu.521837

Christian Concern, Regina (on The Application of) v Secretary of State for Health and Social Care: CA 25 Sep 2020

In proceedings for judicial review the appellant challenged the ‘Approval of a Class of Places’ within the Abortion Act 1967 as amended made by the Secretary of State on 30 March 2020. This approves the ‘home of a pregnant woman’ as being a place which is authorised for the purpose of section 1 of the 1967 Act where the treatment for early medical abortion may be carried out. The Approval was made under sections 1(3) and (3A) of the 1967 Act. It is time limited until either the date when the temporary provisions of the Coronavirus Act 2020 expire or two years, whichever is the earlier.

Lady Justice Nicola Davies
[2020] EWCA Civ 1239
Bailii
Abortion Act 1967, Coronavirus Act 2020
England and Wales

Health Professions, Licensing, Health

Updated: 30 November 2021; Ref: scu.654037

Malik v The United Kingdom: ECHR 25 Jan 2010

The applicant began practising as a general medical practitioner in 1978 from premises which he owned. He was a sole practitioner and had a panel of 1,400 patients, many of whom were from the local Bangladeshi population.
On 30 March 2004, he entered into a contract with the Waltham Forest Primary Care Trust (‘the PCT’) in accordance with the National Health Service (General Medical Services Contracts) Regulations 2004 (‘the Contracts Regulations’ – see further ‘Relevant domestic law and practice’, below). At that time, his practice was not computerised and he agreed to take steps to achieve computerisation.
On 4 January 2005, the applicant wrote to the PCT asking that a planned monitoring visit on 20 January 2005 be deferred because of the upheaval at the premises due to the ongoing electrical works. The PCT responded that deferment was impossible, and the visit subsequently took place.
On 21 January 2005 the medical director of the PCT wrote to the applicant informing him that the visit had demonstrated ‘the serious risk you pose to patients under your care’ and so he had been suspended ‘to protect the interests of patients while a more detailed investigation into the issues of concerns take place’.
The applicant challenged the suspension. A hearing was arranged for 31 January 2005. In the meantime the applicant’s insurers wrote to the PCT indicating their view that the suspension was unlawful but advising the PCT that the applicant would nonetheless voluntarily absent himself from practice for four weeks to enable him to deal properly with the matters relied on against him. The offer was not accepted.

23780/08, [2010] ECHR 115
Bailii
European Convention on Human Rights, National Health Service (General Medical Services Contracts) Regulations 2004
Human Rights
Cited by:
See Also – Malik v The United Kingdom ECHR 13-Mar-2012
ECHR The applicant alleged that his suspension from the list of those authorised to practise as doctors for the National Health Service constituted a violation of Article 1 of Protocol No. 1. . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Health Professions

Updated: 30 November 2021; Ref: scu.396695

Gupta v General Medical Council: Admn 17 Jul 2001

The appellant doctor had been suspended from practice by decision of the respondent. It was alleged that she had allowed her husband, himself a suspended practitioner to consult with patients in breach of that suspension. Having found the allegation proved, she had been suspended immediately, and without the opportunity to make representations. Although the rules did not require such opportunity to be given, the consequences were dire. Though the committee had a delicate balance to find, no proper allowance was made for the possible consequences of an appeal to the Privy Council, and the order for immediate suspension was set aside.

Times 16-Oct-2001, [2001] EWHC Admin 631
Bailii
Medical Act 1983 38(6), General Medical Council Preliminary Proceedings and Professional Conduct Committee (Procedure) Rules 1988 (S.I. l988 No.2255) 28, Medical (Professional Performance) Act 1995
England and Wales
Citing:
Appealed to – Gupta v The General Medical Council PC 18-Dec-2001
(The Health Committee of the GMC) A doctor had been found guilty of serious professional misconduct by the Professional Conduct Committee of the General Medical Council. She appealed on the basis that they had not given reasons for the factual basis . .

Cited by:
Appeal from – Gupta v The General Medical Council PC 18-Dec-2001
(The Health Committee of the GMC) A doctor had been found guilty of serious professional misconduct by the Professional Conduct Committee of the General Medical Council. She appealed on the basis that they had not given reasons for the factual basis . .

Lists of cited by and citing cases may be incomplete.

Health Professions

Updated: 30 November 2021; Ref: scu.166215

GMC v Szisz: Admn 23 Dec 2013

Application made by Part 8 claim form for an extension of an interim order of conditions imposed on the defendant by the Interim Orders Panel of the General Medical Council originally on the 4th January 2013. The defendant is a Hungarian national who currently practises in Hungary.

Pelling QC HHJ
[2013] EWHC 4452 (Admin)
Bailii

Health Professions

Updated: 29 November 2021; Ref: scu.521083

The Enfield London Borough Council, Regina (on The Application of) v Barnet Clinical Commissioning Group and Others: Admn 12 Nov 2013

Challenge to the decisions of the Barnet, Enfield and Haringey Clinical Commissioning Groups and the Barnet and Chase Farm Hospitals NHS Trust to close the Accident and Emergency department at Chase Farm Hospital

Bean J
[2013] EWHC 3496 (Admin)
Bailii

Health Professions

Updated: 25 November 2021; Ref: scu.517654

Trust Special Administrator Appointed To South London Healthcare NHS Trust and and Another v London Borough of Lewisham and Another: CA 8 Nov 2013

The court gave its reasons for dismissing the special administrator’s appeal against the quashing of a report recommending certain steps to be taken as to the Trust. The appeal had been as to whether the actions were to be ‘in relation to the trust’. The report had recommended action incorporating additional trusts. The administrator now argued for a wide interpretation of the phrase.
Held: The appeal failed. The interpretation of the phrase would vary according to the context.

Lord Dyson MR, Sullivan, Underhill LJJ
[2013] EWCA Civ 1409
Bailii
National Health Service Act 2006 5A
England and Wales

Administrative, Health Professions

Updated: 25 November 2021; Ref: scu.517467

Fixsler and Another v Manchester University NHS Foundation Trust and Another: CA 9 Jul 2021

Whether to withdraw life sustaining treatment for a little girl with catastrophic brain injuries.

[2021] EWCA Civ 1018
Bailii, Judiciary
England and Wales
Citing:
Appeal from – Manchester University NHS Foundation Trust v Fixsler and Others FD 28-May-2021
Application for declaration as to child’s best interests. Hospital wanting to provide only palliative care – family wanting life support . .

Cited by:
See Also – Manchester University NHS Foundation Trust v Fixsler and Others FD 6-Oct-2021
. .

Lists of cited by and citing cases may be incomplete.

Health Professions, Children

Updated: 25 November 2021; Ref: scu.664386