This article was downloaded by: [University of Warwick] On: 13 April 2012, At: 23:15 Publisher: Routledge Informa

Ltd Registered in England and Wales Registered Number: 1072954 Registered office: Mortimer House, 37-41 Mortimer Street, London W1T 3JH, UK

Journal of Social Welfare and Family Law

Publication details, including instructions for authors and subscription information: http://www.tandfonline.com/loi/rjsf20

Cases
Available online: 23 Aug 2006

To cite this article: (2006): Cases, Journal of Social Welfare and Family Law, 28:1, 59-80 To link to this article: http://dx.doi.org/10.1080/09649060600762431

PLEASE SCROLL DOWN FOR ARTICLE Full terms and conditions of use: http://www.tandfonline.com/page/terms-andconditions This article may be used for research, teaching, and private study purposes. Any substantial or systematic reproduction, redistribution, reselling, loan, sub-licensing, systematic supply, or distribution in any form to anyone is expressly forbidden. The publisher does not give any warranty express or implied or make any representation that the contents will be complete or accurate or up to date. The accuracy of any instructions, formulae, and drug doses should be independently verified with primary sources. The publisher shall not be liable for any loss, actions, claims, proceedings, demand, or costs or damages whatsoever or howsoever caused arising directly or indirectly in connection with or arising out of the use of this material.

Journal of Social Welfare and Family Law Vol. 28, No. 1, March 2006, pp. 5980

Cases
Edited by Emma Hitchings

JD (FC) v East Berkshire Community Health NHS Trust and others [2005] UKHL 23
Downloaded by [University of Warwick] at 23:15 13 April 2012

Negligence Duty of Care, Policy Doctors Social Workers Child Abuse

Introduction The successful appeals of Sally Clark and Angela Cannings, as well as the General Medical Councils investigation into the role of Professor Roy Meadows in the shaken baby syndrome cases, raise questions about the viability of derivative compensation claims by the wrongly accused. The plight of parents who have suffered psychological injury due to decision-making regarding their children has thereby been heightened in public awareness. However, the common law has constrained the ability to take legal action in such circumstances due to the absence of a duty of care in negligence. The House of Lords has recently considered JD v East Berkshire Community Health Trust [2005] UKHL 23 (East Berkshire), where the Court of Appeal, while conceding that a duty of care in negligence was owed to a child by a local authority in investigations into possible abuse, held that policy reasons continued to justify the denial of a comparable duty to parents. The European Court of Human Rights, however, has produced a line of decisions which recognises the applicability of the art. 8 European Convention on Human Rights right to respect for private and family life, particularly in relation to procedural aspects. This case note examines the rationale behind maintaining a narrowly drawn conception of what is fair just and reasonable in the common law regarding liability to parents in such cases. The trump of somewhat imprecise policy concerns continues to be asserted in order to deny the existence of a duty, but these concerns are gradually losing their potency. East Berkshire raises questions about the function of duty of care in negligence and the relationship between the common law and human rights approaches.
ISSN 0964-9069 print/1469-9621 online # 2006 Taylor & Francis DOI: 10.1080/09649060600762431

60

Cases

Facts The three conjoined appeals all concern damage caused by diagnoses of abuse (and subsequent consequences) by health care professionals and social workers. In East Berkshire a claim was brought by the mother of a boy (the most allergic patient I have ever known, according to his GP) who, at the age of five, was misdiagnosed with Munchausens Disease by Proxy and put on the At Risk Register for a period of months before the true nature of the condition of severe allergic reaction was established. The claimant suffered psychiatric injury as a result. RK and another v Dewsbury Healthcare NHS Trust was brought by the father of a girl who suffered from a rare disease which manifested itself as purple bruise-like patches on the skin. When a hospital informed the local authority that her condition was suggestive of abuse, the claimant was prohibited from seeing his daughter for a period of some four weeks, until the misdiagnosis was discovered. He claimed for the financial loss and psychiatric injury he suffered. The daughter also claimed for psychiatric injury. In MK v Oldham NHS Trust, a child was born into a devout Muslim family and suffered from osteogenesis imperfecta, or brittle bone disease. Before her condition was known, at the age of two months, she suffered a fracture which was thought to be the result of an inflicted injury. She was consequently placed under a care order for eight months, resulting in psychiatric disorder injury to both her parents. Due to the defendants striking out application under Pt.3.4(2) Civil Procedure Rules 1998, it was necessary for the court to consider as a preliminary issue whether there was a duty of care in negligence owed to parents by health care and child protection professionals in such situations. The current test for determining duty of care in novel situations is that of Caparo Industries plc v Dickman [1990] 2 WLR 358; foreseeability, proximity and that it be fair just and reasonable to impose a duty. Decision Court of Appeal Lord Phillips MR, speaking for the unanimous Court of Appeal ([2003] EWCA Civ 1151), chose to focus on the last of the Caparo criteria: is it fair just and reasonable to impose a duty of care in such circumstances? This question had to be resolved in the light of the principles laid down in X v Bedfordshire CC [1995] 2 AC 633 (Bedfordshire). Bedfordshire can be regarded as the low water mark of negligence liability for child protection decision-making. In it, five claims were brought against local authorities: three concerning educational provision and two concerning child abuse. In the latter category, the first, Bedfordshire itself, concerned damage suffered due to a failure to take action to alleviate the plight of children living in abusive and neglected circumstances. The second, M v Newham London Borough Council (Newham), was brought by a child and her mother harmed by the manner in which a care decision was made and implemented, without sufficient consultation with the mother. This led to the mothers boyfriend being identified as an abuser; a mistake which liaison with the mother would have avoided. The House of Lords rejected the

Downloaded by [University of Warwick] at 23:15 13 April 2012

Journal of Social Welfare and Family Law

61

child abuse claims, invoking a number of public policy reasons why there should not be a duty of care in negligence: the establishment by statute of a multi-disciplinary system of child protection which would be compromised by common law liability, the delicacy of the task carried out by local authorities and their employees, the conflict between the professional responsibility to the child and the needs of the parents, leading to the potential for vexatious legal actions, the existence of alternative remedies, the lack of analogous duties in negligence, and the dangers of introducing defensive attitudes into such decision-making. On appeal to Strasbourg, the ECtHR confirmed a Commission finding, regarding Bedfordshire, that the UK had been in breach of its positive obligation under art. 3 of the European Convention of Human Rights (protection from inhuman and degrading treatment) (see Z v UK (2001) 34 EHRR 97). In Newham, there was a breach of the requirements of art. 8 (enshrining respect for private and family life) in not providing the mother with a proper, fair or adequate opportunity to be involved in the decision-making procedures regarding her daughter. (see TP and KM v UK (2001) 34 EHRR 42). In both cases, the striking out of their actions had deprived the applicants of an effective remedy, thus constituting a violation of art. 13 ECHR, and damages were awarded accordingly.1 In the category concerning educational provision, the Lords in Bedfordshire rejected any duty of care owed to the children by the education authorities themselves but conceded a possible duty by individual employees which would create vicarious liability for the education authorities. In respect of child protection, Bedfordshire was succeeded by Barrett v Enfield LBC [2001] 2 AC 550 and on the education side by Phelps v Hillingdon LBC [2001] 2 AC 619. In each, the House of Lords distinguished Bedfordshire down to what Lord Phillips described as a core proposition pertaining only to decision-making before taking a child into care. Barrett is a significant decision, not only opening the door to compensation claims against local authorities regarding children in care, but with implications for claims against public bodies more generally. In Phelps, it was held that an educational psychologist could be held to owe a duty to a child whose dyslexia was negligently undiagnosed, for which duty the local authority could be vicariously liable. At the outset, in East Berkshire, Lord Phillips responded in the negative to the contention that the use of the striking out procedure constituted a violation of art. 6 ECHR, describing the substantive issue under consideration as a fundamental principle of our common law of negligence (para. 22). The Court went on to uphold the striking out of the parents claims in all three cases but invoked the Human Rights Act as its reason for allowing that of the child in Dewsbury to proceed to trial. This constitute,s for Jane Wright, a purported over-ruling by the Court of Appeal of the Lords core proposition in Bedfordshire, and is seriously questionable in terms of the doctrine of precedent (Wright, 2004, p. 61). The facts in all three cases arose before the coming into force of the Human Rights Act (HRA) in 2000, therefore the Act could not be applied directly. However, the anticipation of s.7, which gives a victim a right of action against a public authority who, in violation of s.6(1), has acted unlawfully in a way which is incompatible with a Convention right (here, art.

Downloaded by [University of Warwick] at 23:15 13 April 2012

62

Cases

Downloaded by [University of Warwick] at 23:15 13 April 2012

8), may have pushed the Court in that direction. (Wright, 2004, p. 62). In relation to the childs claim, Lord Phillips stated, Bedfordshire cannot survive the Human Rights Act, however, [t]he position in relation to the parent is very different (para. 83). As is required by s.1 HRA, Lord Phillips considered the Strasbourg jurisprudence relevant to claims by parents. First cited was E v UK, where a Scottish local authoritys failure to protect four children from serious abuse was held to breach their art. 3 right to protection from inhuman and degrading treatment. He gave less weighting to P, C and S v UK (2002) 35 EHRR 1075, where a procedural flaw had been held to support an art. 6 application by a parent in relation to a care and adoption decision, and Venema v Netherlands (2002) 39 EHRR 102, where art. 8 had been breached due to lack of parental involvement in an abuse investigation, than to the more recent Yousef v Netherlands [2003] 1 FLR 210. Lord Phillips appeared to regard the reiteration in Yousef of the primacy which must be given to the interests of the child in any case in which there appears to be a conflict with parental interests as inconsistent with the existence of any common law duty to the latter. This was further endorsed for him by the Privy Council decision in the New Zealand case of B and others v Attorney General of New Zealand [2003] UKPC 61, where statutory considerations weighed strongly in the upholding of a striking out of a fathers claim concerning investigation of abuse allegations against him. Ultimately, Lord Phillips was persuaded by the public policy considerations (most prominently, that of potential conflict between the interests of the child and parent) set out in Bedfordshire and, having asked in relation to each claimant whether that case could be distinguished, concluded that no duty would be owed to any of the appellant parents. House of Lords In the appeal to the House of Lords, the preliminary point was dealt with on the assumption (as is required in a striking out application) that there had been negligence in the respective misdiagnoses, and the focus was on the fair, just and reasonable component of the duty of care equation in relation to the parental claims. The first and longest speech is the dissent by Lord Bingham. It should be noted at this point that Lord Bingham dissented when the Court of Appeal heard Bedfordshire [1994] 2 WLR 554, arguing convincingly in favour of duty to the children and commenting memorably, the rule of public policy which has first claim on the loyalty of the law: that wrongs should be remedied. He had not supported a duty to the mother in Newham but notes that there the existence of a duty to parents claims was a secondary issue, not separately addressed by the House. The claim of the mother was rejected by House of Lords but allowed by ECHR, insofar as the lack of her involvement in the decision-making process breached art. 8. Lord Bingham observes that the law in this area has evolved very markedly over the last decade , leading to the gradual admissions of liability of public authorities in tort in child protection cases if facts of sufficient gravity are shown (para. 3). He charts the gradual erosion of the resistance to finding a duty to children, which he

Journal of Social Welfare and Family Law

63

links to the courts post-Osman2 reluctance to use striking out claims as a means of creating immunities. He invokes Barrett and Phelps as well as L (A Child) and another v Reading Borough Council and another [2001] 1 WLR 1575. The latter is a somewhat neglected precedent in which the Court of Appeal refused to uphold a striking out action against a father who brought a negligence action against a police authority who instigated proceedings against him on the grounds of a fabricated abuse allegation made against him by the mother of his child. Also of assistance to his argument is the recognition of a local authority duty concerning the giving of information to prospective foster parents in W v Essex [2001] 2 AC 592, and to prospective adoptive parents in A and B v Essex [2004] 1 WLR 1881. In light of this, Lord Bingham speculates as to what extent the public policy reasons upon which Bedfordshire was founded can still be valid for parental claims. The first, that a duty would cut across existing statutory and interdisciplinary systems of child protection, was not accepted in Phelps and was disapproved in Z v UK and therefore will now be of little weight. Defendants in cases such as East Berkshire may or may not be acting under statutory duties. Secondly, the delicate nature of the task is a consideration that applies to many professions and is not sufficient grounds for distinguishing between a duty to a child and to a parent. Similarly, the third, and frequently invoked, concern that a duty would lead to an unwanted defensiveness and cautionary conduct has been discounted now in a number of different cases, To describe an awareness of a legal duty as having an insidious effect on the mind of a potential defendant is to undermine the foundation of the law of professional negligence (para. 33). Regarding the possible existence of other remedies, the law of tort is likely to be the only one to yield compensation to the parent and must be regarded as the most and possibly the only efficacious remedy. Fifthly, he saw that adding a duty to parents to that owed to children would be consistent with the aim that the law of negligence develop incrementally and by analogy. It is with the potential conflict between a duty owed to children and to parents that the biggest concerns arise for all the Law Lords. For Lord Bingham, the content of such a duty specifically in relation to investigation and diagnosis is a duty not to cause harm to a parent foreseeably at risk of suffering harm by failing to exercise reasonable care in the making of a diagnosis of child abuse. This is in substance the same duty as the healthcare professionals already owed to the child. It is his contention that there is no conflict but that the duty owed to the child and the normal parent is one and the same. a skilful and careful diagnosis of medical condition of [the] child. Even if a parent is an abuser, the duty is to serve the lawful and not the criminal interests of the parent (para. 37). Citing Hungerford v Jones 722 A.2d 478,480 (1998) and CLT v Connon [2000] 77 SASR 449, he observes, The consequences are not suffered by the child alone. Breach of this duty will have the same impact upon parent and child: possible separation and disruption of family life (para. 37). It could be argued that an unfounded allegation of abuse may have more extensive implications for the parent than the child, in terms of damage to reputation and all that flows from that.

Downloaded by [University of Warwick] at 23:15 13 April 2012

64

Cases

Additionally, good child protection practice, set out in domestic case law and guidelines as well as ECtHR authority, envisions a co-operative partnership between parents and professionals:
It is in my opinion clear from all this authority that far from presuming a conflict between the interests of child and parent the law generally presumes that they are consonant with each other or at any rate, if not consonant, not so dissonant that healthcare professionals should proceed without fully informing and consulting the parents. There are of course occasions when emergency action must be taken without informing the parents, and when information must be for a time withheld. But there is no reason why the occasional need for healthcare professionals to act in this way should displace a general rule that they should have close regard to the interests of the parents as people with, in the ordinary way, the closest concern for the welfare of their children. (para. 44)

Lord Bingham gives examples in other professional contexts of plural duties, for instance in the economic loss context; Smith v Eric S Bush [1990] 1 AC 831, Spring v Guardian Assurance plc [1995] 2 AC 296 and White v Jones [1995] 2 AC 207. In the United States and Australia, there are examples of recognition of medical duties of care owed to others besides the patient. More specific endorsement is said to be scantdue to the fact that, in most US states, those reporting child abuse are immune from suit because of statutory requirements making reporting of suspicions mandatory. However, in exceptional cases, in which liability has been imposed for negligently reporting child abuse, parents are clearly within the scope of those to whom a duty will be imposed.3 Lord Bingham does, however, cite academic authority supporting potential liability in comparable situations in France and Germany. Here, the feared floodgates have not openedimpliedly because the determinant of liability there is breach rather than the somewhat blunt instrument of duty. He stresses that, in the latter scenario, only a very clear departure from ordinary standards of care and skill should found liability. He concludes with the wish that the law of tort should evolve analogically and incrementally, so as to fashion appropriate remedies for contemporary problems, rather than leaving difficult and, in human terms, very important problems to be swept up by the Convention (para. 50). The majority, Lords Nicholls, Steyn, Rodger and Brown, while recognising the legitimate grievances of the appellants, rule that the recourse to a negligence action should be denied to them. The most compelling aspect of the argument against a duty being owed to the parents in these circumstances is conceived in terms of the laws objectivewhat Lord Nicholls refers to as countervailing interests, each of high social importance: the need to safeguard children from abuse of their own parents, and the need to protect parents from unnecessary interference with their family life (para. 73). He is joined by Lord Rodger in rejecting the suggestion that the respective duties may have the same content. That for the child should be of extended investigation and reporting of suspicions but the interests of the parent do not favour either of these steps (para. 88). Lord Rodger dismisses what for him is the appellants bland version of the duty of care, which stresses an identity in content between hypothetical duties to children and parentsit ignores the fact that the

Downloaded by [University of Warwick] at 23:15 13 April 2012

Journal of Social Welfare and Family Law

65

objects of the investigation are the appellants themselves, who stand to suffer a very personal defamatory wound as well as the psychiatric injury if abuse is wrongly reported.4 For him, the content of duty and range of person to whom it is owed to are quite separate matters (para. 109). Lord Nicholls acknowledges that the specific complaints in all three cases relate to the period of the investigation of the suspected abuse and suggests an analogy between the clinical investigation of the childs condition and that of the investigation of a crime, where negligence would not be enough but only lack of good faith or malice can found an action for damages (see Calveley v Chief Constable of the Merseyside Police [1989] AC 1228). Lord Brown concurs in justifying a necessarily limited scope of action, [T]he public interest in law enforcement and the administration of justice does sometimes require potential liabilities to be excluded notwithstanding that those wronged are left uncompensated (para. 136). The majority stance is supported with recourse to several lines of case authority. Lord Rodger reviews precedents which establish general reluctance to give remedies to third parties who indirectly suffer physical harm or psychological harm and goes on to distinguish the scenarios under consideration from the nervous shock tradition. Specifically, he refers to Lord Binghams negative position regarding the mothers claim in Newham, and more recently to that of the Privy Council in B v Atty-Gen (above), as endorsing what he believes to be the inherent inconsistency in imposing a simultaneous duty to both the alleged victim and the alleged perpetrator. Lord Brown is persuaded by Hale LJs view in A v Essex CC [2004] 1 WLR 1881. This emphasises the primacy of a duty of care to a child in adoption proceedings, to the exclusion of the adoptive parents. None of their Lordships underestimates the extremely difficult task undertaken by child protection professionals. Lord Bingham is informed by legislation and reports in this area, most recently Lord Lamings Report on the Victoria Climbie Inquiry (Laming, 2003), and he stresses, Nothing in the appellants argument or in my opinion throws any doubts on the supreme importance of identifying child abuse and protecting children against it (para. 38). He maintains, however, that good practice in the area would be enhanced by imposing the duty sought by the claimants. Lord Brown quotes at length from evidence provided by Professor Sir Alan Craft of the Department of Health at Newcastle University and Mary Marsh of the NSPCC which describe the nature of the investigation, which may involve a doctor debating on whether to take action in a situation which feels not quite right but lacks a firm evidential base. This evidence is seen by the majority as endorsing the view that there exists a conflict between the needs of the children and the interests of the parents. The question of the relationship between the common law duty of care and liability for breach of Convention rights and the Human Rights Act is an issue for Lords Bingham and Nicholls. The former cites the Scottish case of Fairlie v Perth and Kinross Healthcare NHS Trust 2004 SLT 1200. In an action brought by a father wrongly accused by a psychiatrist of past abuse of his now adult daughter, the Outer House, Court of Session, upheld a striking out application by the defendants on the basis of absence of common law duty. Lord Kinross queried whether the result might

Downloaded by [University of Warwick] at 23:15 13 April 2012

66

Cases

be different under an art. 8 action, but did not resolve this. In response to Lord Kinross, Lord Bingham voices concern that the law of tort may remain essentially static, making only such changes as are forced upon it, leaving difficult and, in human terms, very important problems to be swept up by the Convention (para. 50). For Lord Nicholls the legal rigidity of the common law, grounded in the requirement of a duty of care, is preferable and should be maintained against what he sees as the uncertainty threatened by jettisoning duty in the face of a creeping spread of a Convention approach to public authority liability (paras 9294). Analysis There are three important areas of debate which emerge from this case. The first concerns the validity of the supposed conflict of interest between the parent and child in abuse investigations which is used to negate the duty of care. It can be doubted that such a conflict exists but, even if it were conceded that there is some inconsistency in the content of the duty, this need not be fatal to existence of that duty. What would constitute the duty in question? According to Lord Bingham, it is to investigate, test, explore, check and verify suspicions of abuse with skill and care. It is not the case, as was alleged in A v Essex that it will always be in the interests of the parents that the child is not removed (para. 41). It is not difficult to imagine a situation in which a non-abusing parent, possibly non-resident, may desire action to be taken in respect of a child endangered from a resident parent or other. Another hypothetical claimant would be a non-abusing parent who was not even the subject of suspicion, as in the Newham case. Negligence in such a situation may result in damage to this parent, who is going to have no other recourse to compensation in the absence of malice. In order for the duty owed to be seen as congruent, it is not necessary that the parties in question must suffer the identical damage from the wrong. The breach of such a duty can impact differentially. Typically, a young child mistakenly separated from a parent may suffer psychological damage due to the separation itself whereby, for the parent, an additional psychological impact will be derived from damage to his or her reputation. The spurious benefit which an abuser might gain from a negligent failure by investigators to discover his or her activities cannot support a failure by the law to demand care and skill. It would seem to fly in the face of accepted legal norms to doubt the value of upholding professional standards on the grounds that someone somewhere may gain an advantage from their negligent application. Even when it is possible to envision a degree of conflicting interests, the law has not consistently refrained from declaring a duty of care to both parties. A job applicant could be said to derive a sort of advantage from a carelessly compiled but complimentary reference whereas his prospective employer would not. Despite this, Spring v Guardian Insurance establishes that the giver of a reference can simultaneously owe duties of care in respect of pure economic loss to the subject of the references as well as the recipient. A more pertinent comparator is Gogay v

Downloaded by [University of Warwick] at 23:15 13 April 2012

Journal of Social Welfare and Family Law

67

Hertfordshire CC [2000] IRLR 703. Here, a local authority social services department was held by the Court of Appeal to owe a duty of care to its employees as well as to the children in its care. It was ordered to compensate a residential worker who was wrongly suspended during an investigation of an abuse allegation which had been made against her. Hale LJ observed that child abuse rarely needs to be responded to as a crisis but calls for a cool, clear and structured response, while conceding that there could be conflict; in which case, the interests of the child should prevail (paras 5859). East Berkshire raises the prospect that recognition of a duty to parents could lead to a proliferation of actions by a more extended range of claimants, such as teachers, childminders and others wrongly suspected of abuse. Gogay indicates that such duties are already recognised, albeit here the nature of the duty owed was governed by the relationship of confidence and trust between employer and employee. After considering Venema, Lord Nicholls concludes that according any priority to primary carers on the grounds of their special vulnerability to disruption of family life would, contrary to art. 8, still not be justified due to the conflict of interest (para. 85). The range of claimants is not addressed directly by Lord Bingham. However, it is submitted that his approach of a cautious incremental movereferring, as it does, solely to parents claimscould support an argument that the duty should be owed to parents only. Alternatively, limitation of liability could be addressed by modification of the standard of care or by treating the matter as an art. 8 issue. The second key concern is whether duty or breach should be employed in reining in negligence. Lord Bingham is attracted to the view that, since Barrett, there has been a shift in focus from duty to breach as a restricting factor (para. 49, quoting Fairgrieve, 2003). The extent of this supposed shift is questionable. However, Lord Bingham would encourage it, regarding, as he does, duty as a somewhat blunt instrument (para. 49). It may be seen that discussions which purport to be about duty sometimes are masking the matter of breach instead. Examples abound: Hale LJ in Gogay, considering the differing appropriate responses to allegations of abuse, and circumstances in which the needs of the child should prevail (para. 59) and, in East Berskshire, Lord Bingham (there are, of course, emergency situations para. 44) and Lord Nicholls (acting on, or persisting in, a suspicion of abuse might well be reasonable when only the childs interests were engaged but unreason para. 110). It is respectfully suggested that these considerations could be dealt with as issues of breach, taking into account expert evidence such as that of Professors Craft and Marsh about the challenging nature of the task, as well as financial constraints. It must be remembered that in some cases, such as Fairlie, there exists no direct child protection issue. It is important not to lose sight of the fact that duty need not equate with liability. Deciding whether to take steps to take a child into the care of a local authority may be very finely balanced; sometimes a decision will prove to be erroneous. This does not necessarily mean that the local authority or its social workers and other professional advisers will have been negligent (Wright, 2004, p. 65). This point was made by John Murphy in reflecting on Bedfordshire and its successors, the

Downloaded by [University of Warwick] at 23:15 13 April 2012

68

Cases

acknowledgment of the inappropriateness of free and easy strike outs ought not to be equated with a general willingness to impose negligence liabilityThe remaining hurdles of duty and causation will continue to apply (Murphy, 2003, p. 114) May. LJ, in S v Gloucestershire CC (2001 2 WLR 909, 933) in relation to childrens claims, commented, The conclusion that cases of this kind may often be capable of being formulated as viable causes of action in negligence says little or nothing about whether they are likely to succeed on the facts. Such a standard of care would be based on the subjective criteria of Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, taking into account reasonable behaviour in the professional context, including the factor of resources. In East Berkshire itself, had a duty of care been conceded it is quite possible that the actions of the professionals involved would be held to have met a sympathetically conceived standard of care. The third significant aspect of East Berkshire pertains to the influence of human rights factors in this area. There is a history of ECtHR jurisprudence, commencing with W v UK (1987) 10 EHRR 29, which has found art. 8 to be engaged in challenges of decisions to remove children from their parents which may constitute an interference with the right to respect for private and family life that is only to be justified if it is in pursuit of a legitimate aim and necessary in a democratic society (art. 8.2). To fulfil this requirement, it appears that parents must be given the opportunity to be involved in the decision-making process: to see documents (McMichael v UK (1995) 20 EHRR 205), to put their own case (Elsholz v Germany (2000) 34 EHRR 1412 and Venema) and to be given sufficient notice and the opportunity to be legally represented (P,C,S v UK). Parents can be compensated for decisions which contravene these basic procedural elements. In Yousef, the ECtHR reiterated, as is the case in domestic law, where the rights under art. 8 of parents and those of a child are at stake, the interests of the child must prevail (para. 73). The giving of priority to the interests of the child parallels implementation of the standard of care in common law; that is, the focus is on how the obligation imposed by art. 8 is actually carried out in the circumstances. It has been noted that, in considering Fairlie, Lord Bingham appears to be somewhat disquieted by the idea that the common law tradition is abdicating its responsibility, deferring to the Convention and presumably to future HRA actions (para. 50). Jane Wright seems to be more sanguine about this prospect, observing that, for post-2000 events, parents will be able to bring procedural actions under art. 8 (Wright, 2004, p. 63). However, the recent notorious cases questioning the validity of some expert evidence and the resultant successful appeals will make fresh actions featuring pre-2000 events a stronger possibility. Here, the easy option of reliance on art. 8, even if desirable, would not be available. Similarly, the movement aimed at obtaining relaxation of limitation strictures on claims deriving from past abuse may have a knock-on effect of enabling actions against alleged perpetrators who might attempt to avail themselves of negligence actions.5 Frank Bates, in considering the trend towards recognition of duties to children, concluded, it can not be too great a step to recognise other victims of child abusethose parents and other carers who are unjustly, unfairly and erroneously accused of that most vicious of all crimes

Downloaded by [University of Warwick] at 23:15 13 April 2012

Journal of Social Welfare and Family Law

69

(Bates, 2001, p. 206). This step was resisted by the majority of the Law Lords in East Berkshire . It remains to be seen if and when it will be taken. CAROL BRENNAN Oxford Brookes University

Notes
[1] [2] The issue of art. 6 of the Convention (right of access to court) which was central to Z v UK is not relevant to this case note. Osman v United Kingdom (1998) 5 BHRC 293. See Craig, P. and Fairgrieve, D. (1999) Barrett, negligence and discretionary powers, Public Law, 626. See for instance Poulos v Lane 659 N.E. 2d 34 (Ill.App.1995) and Criswell v Brentwood Hosp., 551 N.E.2d 1315 (Ohio App.1989) cited in Richardson, C Physician/Hospital Liability for Negligently Reporting Child Abuse (2002) Journal of Legal Medicine, March 131. See Lillie v Newcastle CC [2002] EWHC 1600, W v Westminster CC [2004] EWHC 2866. See Law Commission, Limitation of Actions, Law Com No 270 (HMSO, 2001).

Downloaded by [University of Warwick] at 23:15 13 April 2012

[3]

[4] [5]

References
Bates, F. (2001) Policy, bureaucracy, tort law and child sexual abuse: stirring the miasma, Tort Law Review, pp. 183207. Dyer, C. (2005) But what about the parents?, The Guardian, 25 January 2005. Fairgrieve, D. (2003) State Liability in Tort, Oxford University Press, Oxford. Laming, Lord (2003) The Victoria Climbie Inquiry, The Stationary Office, Cm 5730, London. Murphy, J. (2003) Children in need: the limits of local authority accountability, Legal Studies, vol. 23, pp. 103134. Wright, J. (2004) Immunity no more: Child abuse cases and public authority liability in negligence after D v East Berkshire Community Health NHS Trust, Journal of Professional Negligence, vol. 20, pp. 5865.

70

Cases

N v Secretary of State for the Home Department [2005] 2 WLR 1124 Immigration Asylum Expulsion Removal ECHR Article 3 Inhuman and Degrading Treatment HIV/AIDS
Downloaded by [University of Warwick] at 23:15 13 April 2012

Is Inadequate Medical Care Insufficient to Resist Removal? The Return of Foreign Nationals with HIV/AIDS and Article 3 ECHR
keywords: immigration; asylum; expulsion Facts and Decisions In Uganda, N was held captive by the Lords Resistance Army from 1996 until 1998 and then captured by the National Resistance Movement (part of the Ugandan security forces), who ill-treated and raped her. She arrived in London in March 1998. The adjudicator held that she was not in danger of persecution, since the crimes against her were acts of rogue elements of the security forces (para. 57). This meant that her claim for refugee status failed. N was diagnosed as HIV positive after her arrival in the UK. She experienced two AIDS defining illnesses (para. 2). She was unaware of her condition when she left her home country. Lord Nicholls identified the key question of whether removal would violate her rights under article 3 of the European Convention on Human Rights, given that she would face inadequate medical treatment if returned to Uganda (para. 8). The adjudicator found that the case for protecting N under article 3 was overwhelming (para. 5). The Court of Appeal found that the case was insufficiently exceptional to engage article 3. The House of Lords reached the same destination as the Court of Appeal by a different route. They rejected the Court of Appeals humanitarian approach. For the House of Lords, the application of article 3 to asylum cases was an extension of the Convention under exceptional circumstances. To apply such an obligation in any but the most exceptional circumstances would be to impose unwarranted positive obligations on the UK. The circumstances that N experienced were not regarded as sufficiently exceptional to justify protection from

Journal of Social Welfare and Family Law

71

return to Uganda under article 3. Indeed, after N v SSHD, whether any situation will be regarded as sufficiently exceptional for this protection is an open question. Can Article 3 be Engaged by a Removal Leading to Inadequate Medical Care? As Caroline Sawyer has shown, this case raises the issue of whether the return of a person with an advanced or terminal illness to a country whose lack of medical facilities would hasten their death would be a breach of the obligations of the United Kingdom under article 3 of the ECHR: (2004) 26(3) JSWFL. It must first be shown that article 3 can be violated by a decision to remove a person from the UK. Decisions of the European Court of Human Rights demonstrate that article 3 may be engaged by the extradition or removal of persons from the United Kingdom: Soering v United Kingdom (1989) 11 EHRR 439 and Chahal v United Kingdom (1996) 23 EHRR 439. The application of article 3 must also be justified to cases involving medical care. In Hurtado v Switzerland (1994) (Case Number 37/1993/432/511), the European Commission on Human Rights held unanimously that the lack of medical provision for Mr Hurtado while in police detention was a violation of article 3 ECHR. Can a person use article 3 to resist removal in a case involving medical care? Beginning with D v United Kingdom (1997) 24 EHRR 423, there is a body of Strasbourg jurisprudence which suggests that removal may be resisted under article 3 in exceptional cases, when a person who suffers from a terminal and incurable illness would face wholly inadequate medical treatment for that illness if returned to their country of origin. In the case of N v Secretary of State for the Home Department [2005] 2 WLR 1124, on 5 May 2005 (the day of the UK General Election), the House of Lords ruled on the extent to which that Strasbourg case law can be relied upon in the United Kingdom. The House of Lords did not consider that article 3 applied to the situation facing the applicant. Following N, it seems that D v UK will only be applied, if at all, in very exceptional cases. The only ground that was clearly identified as falling into this very exceptional category was the situation of a person who was dying, which was believed to be the situation in D (see para. 15 in N). The opinion of Lord Hope of Craighead contains a lucid summary of the relevant Strasbourg case law. From this case law, a two-stage test can be identified. The first stage refers to the seriousness of the applicants illness. The second stage refers to the inadequacy of medical treatment available in the receiving state, the lack of other support and the consequences of the lack of effective help. The Evolving First Stage of the Test: From Advanced or Terminal to Terminal The first stage of the test involves consideration of the seriousness of the persons condition. Before N v SSHD, it appeared that the applicant must be in an advanced or terminal stage of a terminal and incurable illness: D v United Kingdom (1997) 24 EHRR 425 (para. 51 of D). As Lord Hope observed in N, the requirement of an advanced or terminal stage finds support from Karara v Finland (Application No 40900/98) and Henao v The Netherlands (Application No 13669/03). In Bensaid v

Downloaded by [University of Warwick] at 23:15 13 April 2012

72

Cases

United Kingdom (2001) 33 EHRR 205, the Strasbourg court appeared to adopt a narrower rule that the illness be terminal (i.e. that an advanced illness which was not terminal would not be sufficient). However, the decision in Bensaid also turned on the availability of medical care if the applicant was returned (the second stage). In N v SSHD, Lord Hope, Baroness Hale and Lord Brown specifically referred to the advanced or terminal test in D v UK. Having referred to this broader advanced or terminal test, the language of the court showed a preference for a narrower test that the applicant must be in a terminal stage of their illness. Lord Nicholls emphasised that D was dying, and beyond the reach of medical treatment then available (para. 15). Lord Hope said that it was the fact that [D] was already terminally ill while still in the territory of the expelling state that made his case exceptional (para. 36). Baroness Hale noted that the test in this sort of case is whether the applicants illness has reached such a critical stage (i.e. he is dying) that it would be inhuman treatment to deprive him of the care which he is currently receiving (para. 69) and Lord Brown made similar observations (para. 82). The woman identified as N was in an advanced stage of HIV/AIDS (para. 1). She was not at a terminal stage, as her condition could not be said to be critical (para. 51). Because N was not dying, her case failed at the first stage. The courts reasons for preferring a narrow interpretation of the Strasbourg jurisprudence, requiring that the applicant be at the terminal stage, deserve investigation. Lord Nicholls asked why it is unacceptable to expel a person whose illness is irreversible and whose death is near, but acceptable to expel a person whose illness is under control and but whose death will occur once treatment ceases (as may well happen on deportation)? (para. 13). This apparent distinction may be overstated, as it appears that the impression that D was on his deathbed at the time of his case may have been exaggerated. Lord Nicholls used this question to highlight a difficulty in the humanitarian test proposed by the Court of Appeal. He argued that the rationale underlying the Strasbourg cases following D is not a humanitarian approach. The Strasbourg jurisprudence is presented as supporting a recognition that article 3 does not require contracting states to undertake the obligation of providing aliens indefinitely with medical treatment lacking in their home countries (para. 15). One possible reason for preferring a narrow approach of a terminal stage of illness was to limit the positive obligations arising under article 3. This may have reflected a view that to require significant positive obligations would overstep the courts proper constitutional role. Compared to D v UK, the positive obligation in N v SSHD was thought to have been greater since the cost of medical treatment throughout the remainder of the persons life would have been higher than was anticipated in D. Lord Hope emphasised that, for the requirement of very exceptional circumstances to be met, the applicants medical condition must have reached such a critical stage that there were compelling humanitarian reasons for not removing him to a place which lacked the medical and social services which he would need to prevent acute suffering while he is dying (para. 50). If D v UK was an extension of article 3 (by applying the article to a case not involving positive acts of persecution by state or non-state human

Downloaded by [University of Warwick] at 23:15 13 April 2012

Journal of Social Welfare and Family Law

73

agents), then N can be regarded (and was regarded by the House of Lords) as an attempted extension of an extension. Medical treatment in the UK has advanced since the time of D v UK. People with HIV/AIDS who have the benefit of antiretroviral drugs have a much greater life expectancy. The House of Lords in N v SSHD, particularly Lords Nicholls and Brown, argued that the Strasbourg jurisprudence shies away from burdening states with positive obligations to provide people from other nations with medical treatment lacking in their home countries. Lord Brown contended that Ns complaint is not that the UK should merely exercise its negative obligation (not to return her). On his view, in reality N was saying that the UK is bound to continue her medical treatment. In support of this view, Lord Brown quoted Judge Lorenzen, although not in a judgment (para. 8990). Speaking in May 2000, Judge Lorenzen said,
Downloaded by [University of Warwick] at 23:15 13 April 2012
The difficulty was to determine what was to be understood by very exceptional circumstances the consequences of granting an absolute right for seriously ill persons to remain in the host country to get treatment, provided they had managed to set foot there, were very far reaching.

The court took the position that D concerned a negative obligation, not to deport D to an imminent, lonely and distressing end (para. 93). The court held that there was an unbreakable link between the obligation not to return (if any) and the obligation to provide medical treatment. This approach reflects a reluctance to accept that the obligations of contracting states under article 3 include positive action in these circumstances. As Sylvie da Lomba (2004) has shown, the capacity of article 3 to generate positive obligations was reaffirmed by the then Master of the Rolls, Lord Phillips of Worth Matravers, in R (Q and others) v Secretary of State for the Home Department [2003] 3 WLR 365 at para. 53. In that case, Lord Phillips observed that, even when the Strasbourg court declines to find a positive duty in a particular case, it reaffirms that positive obligations do arise; for example, in Pretty v United Kingdom (2002) 35 EHRR 1, A v United Kingdom (1998) 27 EHRR 611 and Z v United Kingdom (2001) 34 EHRR 97. The Second Stage: A Lack of Treatment or Support That Would Hasten Death and Cause Suffering The second stage directs the courts attention to the degree of seriousness of the lack of medical treatment if the person is returned. In D v UK, the Strasbourg court noted the wholly inadequate medical treatment available in the country of origin (para. 52). The degree of inadequacy or unavailability of medical facilities capable of sustaining an argument based upon article 3 must be determined with sufficient precision. Convincing evidence of a lack of adequate medical treatment is required, as speculative evidence of such a lack of treatment did not convince the Strasbourg court in Bensaid v United Kingdom (2001) 33 EHRR 10, para. 39. We must determine whether a complete lack of relevant health care provision would be required in order to resist return or whether a degree of inadequacy will suffice. Written submissions to

74

Cases

the All-Party Parliamentary Group on AIDS and Refugees suggest that the Home Office has rejected arguments in this situation where the applicant would face anything less than a complete absence of medical treatment in the country concerned (Terence Higgins Trust, 2003). However, in R v Secretary of State for the Home Department ex parte Cardoso [2000] Imm AR 1, it appears that Sullivan J distinguished D v United Kingdom on the ground that D would have faced inadequate (not a total absence of) medical treatment, whereas Cardoso would not. To require a total lack of facilities to engage article 3 would be to narrow the application of the article so far that its protection would become an illusion in the context of removal. As Watt (2000) has shown, this position would not be consistent with the views of the European Court of Human Rights in D v United Kingdom (1997) 24 EHRR 423. An alternative interpretation of D v UK was provided by Lord Bingham in a case on removal and article 8, R (Razgar) v Secretary of State for the Home Department [2004] 2 AC 368. Lord Bingham observed (at p. 379, para. 3) that D v UK applies to cases where a person would be returned to face a predictable lack of [medical] facilities as well as of any form of moral or social support in the receiving country [that] would hasten the applicants death and subject him to acute mental and physical suffering. This approach includes three main elements. The first requirement is a predictable lack of care. The second requirement is a lack of moral or social support: medical care must be practically accessible (which includes consideration of barriers to access such as the cost of drug treatment). This issue was highlighted by a case in which it appeared that an offer by the returning state to pay for medical treatment after removal (ensuring the availability of otherwise unavailable treatment) would avoid a violation: MM v Switzerland (Application No 43348/98, 14 September 1998). The third requirement is that the applicant would die significantly earlier and that this would be accompanied by significant mental and physical suffering. Would relative disadvantage, when medical facilities in the state to which someone would be returned are seriously inferior to those available in the returning state, suffice? The case law shows that what matters is absolute (not relative) disadvantage. In R v SHHD ex parte I [1997] Imm AR 172, Butler-Sloss LJ suggested that the inferiority of medical treatment in another country compared to the UK will not suffice: Bob Watt (2000) 1 EHRLR 54. That is consistent with the conclusion of the European Court of Human Rights in a case concerning the return of a person with schizophrenia to Algeria, who had argued that return would risk a relapse of his symptoms in Bensaid v United Kingdom (2001) 33 EHRR 10. The court, in Bensaid, held that the fact that the applicants circumstances in Algeria would be less favourable than those enjoyed by him in the United Kingdom is not decisive from the point of view of Article 3 of the Convention (para. 38). The principle that with medical treatment so with welfare, an applicant could never hope to resist an expulsion decision without showing something very much more extreme than relative disadvantage as compared with the expelling state (Lord Bingham in R (Razgar) v Secretary of State for the Home Department [2004] 2 AC 368 at 384, para. 10) can also be supported by SCC v Sweden (Application No 46553/93) (2000) 29

Downloaded by [University of Warwick] at 23:15 13 April 2012

Journal of Social Welfare and Family Law

75

EHRR CD245. Absolute disadvantage in the state to which the applicant would be returned, not relative disadvantage compared to medical facilities in the returning state, is what matters. If treatment is available at a considerable cost, which the applicant cannot afford, would that be sufficient? In addition to cost, other barriers that might be taken into account could include geography (especially the difficulty of travel to access treatment) and the persons mobility (taking into account any deterioration in mobility as their condition progresses). Another barrier is the stigma attached to HIV/AIDS, which leads patients in Senegal to hide their medicines (Furber et al., 2004), a stigma that was identified as a significant problem within Uganda by 130 Ugandan women in the Focus on Women Kampala Declaration (Akiki, 2002). It has been suggested that, if adequate treatment is available, even at considerable cost, then there would be no violation: Ndangoya v Sweden (Application No 17868/03), a point which was repeated in Amegnigan v The Netherlands (Application No 25629/ 04). The practical barriers to access to the drug required to treat the applicants schizophrenia concerned three Strasbourg judges (Sir Nicholas Bratza and Judges Costa and Greve) in Bensaid v United Kingdom. In their concurring opinion, these judges expressed concern that the cost of the drug which Bensaid required, olanzapine, would be likely to be prohibitive. Sir Nicholas Bratza concluded that there exist in my view powerful and compelling humanitarian considerations in the present case which would justify and merit reconsideration by the national authorities of the decision to remove the applicant to Algeria. The House of Lords, in N v SSHD, made a similar observation, that the case deserved reconsideration of whether the Secretary of State might exercise his discretion to permit N to remain (para. 99). If, when treatment is available in theory but unavailable in reality, the courts do not apply article 3, that would contradict the principle that the Convention was intended to guarantee practical and effective rights, not theoretical or illusory ones: Artico v Italy (1980) 3 EHRR 1 para. 33. The analysis thus far has identified a two-stage test. Perhaps there should be a third stage, of assumption of responsibility by the returning state. In D v UK, the European Court of Human Rights also referred to the fact that the UK had assumed responsibility for treating D. This indicates that the length of time could be a factor in the application of a humanitarian considerations test and the determination of exceptional circumstances. Lord Nicholls expressed concern about this assumption of responsibility test as follows:
It would be strange if the humane treatment of a would-be immigrant while his immigration application is being considered were to place him in a better position for the purposes of article 3 than a person who has never reached this country at all. (para. 17)

Downloaded by [University of Warwick] at 23:15 13 April 2012

The consequence of Soering, Chahal, D v UK, and the subsequent case law, is that a person in the UK in a case of this type is indeed in a better position than those who have never reached the UK. That is not an unusual legal position. The same outcome follows, in many situations, from the obligations of the United Kingdom under the Refugee

76

Cases

Convention. The two-stage test from the Strasbourg case law is arguably a sufficiently precise mechanism for the determination of cases of this kind. The references to an assumption of responsibility should not be taken as establishing a third stage. Baroness Hale, in N, observed that Uganda is said to be one of the most advanced African countries in the treatment of AIDS, although that did not prevent the deaths of five of the applicants siblings to AIDS-related illnesses (para. 85). The evidence from UNAIDS suggests that, while Uganda might be regarded as a successful example of policies to contain the increase in cases of HIV/AIDS, the use of preventative strategies does not show that effective treatment is available for those people who are HIV positive. The inadequacy of treatment is little in doubt, as the best available treatment programme in Uganda, the UN programme, reached 905 people out of an estimated 820,000 eligible Ugandans (FitzGibbon, 2005). In October 2003, the Government of Uganda made a formal appeal to the Director-General of the World Health Organisation for urgent assistance to close the gap between the need for treatment for people with HIV/AIDS and the level of available treatment. Worldwide, it has been estimated that only about 5% of those needing access to antiretroviral drugs (ARVs, needed to slow the replication of HIV) actually have such access (UNAIDS). Factors causing this lack of access include the cost of the treatment and inadequate health care facilities. The Home Office country report for Uganda mentions that one doctor within Uganda considers that HIV treatment is freely available from any hospital and many clinics there (Home Office, 2005). While precise data is not available (partly, in itself, due to limited health care provision), information on Uganda provided by UNAIDS casts doubt on that statement. Lord Nicholls said that the position of N, if she should be unable to access the required treatment, would be similar to having a life-support machine switched off (para. 4). There would, therefore, be no genuine doubt of the probability and severity of the harm that N would face. Suppose a state to which someone with HIV/AIDS would be returned was making its best efforts towards treating people but without achieving effective treatment: would the argument from D v United Kingdom apply? In Kalashnikov v Russia (2002) (Application No. 47095/99), the Strasbourg court found that lack of resources was a cause of poor prison conditions in Russia; however, this did not justify a violation of article 3 ECHR (see para. 94). Applying the general principle that lack of resources does not justify article 3 violations, the argument that a state is doing its best without success should not be accepted in cases involving removals of people with HIV/AIDS. The requirement that the state to which the applicant would be returned must provide inadequate medical treatment can be compared to cases where it is argued that the state offers inadequate protection from harm by non-state agents. In R (Bagdanavicius) v Secretary of State for the Home Department [2005] 2 WLR 1359, the House of Lords had to determine whether a real risk from non-state agents was sufficient to engage article 3 alone or whether insufficient protection by the state was also required. Lord Brown of Eaton under Heywood emphasised the exceptional nature of D v UK and noted that the applicant did not seek to rely upon it (para. 28). Applying the requirement from HLR v France (1997) 26 EHRR 29 that the authorities

Downloaded by [University of Warwick] at 23:15 13 April 2012

Journal of Social Welfare and Family Law

77

must not be able to obviate the risk by providing appropriate protection, the House of Lords held that a real risk plus insufficient state protection was needed (para. 8). Lord Brown added that your Lordships should state for the guidance of practitioners and tribunals generally that in the great majority of cases an article 3 claim to avoid expulsion will add little if anything to an asylum claim (para. 30). Such statements raise the question of when article 3 can make a difference, aside from the points that article 3 is absolute and therefore applies irrespective of the persons behaviour (Cooper, 2003) and that article 3 does not require one of the Refugee Convention grounds of race, religion, nationality, membership of a particular social group, or political opinion (Stevens, 2004). One possible answer comes from a separate and parallel development in R (on the application of Kurtolli) v Secretary of State for the Home Department [2003] EWHC 2744. In Kurtolli, the Administrative Court considered not whether article 3 might be engaged by a lack of resources in another country, but whether the article could be engaged by the immediate effects of the expulsion itself, bearing in mind a returned persons particular situation. This narrower argument succeeded and this strategy might point the way forward in cases that rely on article 3 to resist removal. Kurtolli argued that the threat of the expulsion of his family to Kosovo would put his wife at risk of committing suicide. Silber J distinguished this case from the Court of Appeals decision in N v SSHD on the basis that the case of N related to lack of resources in the applicants home country; Kurtollis case was based on the medical condition of his wife, rather than conditions in Kosovo (para. 80). Kurtolli challenged the Secretary of States certificate that his claims under articles 3 and 8 ECHR were manifestly unfounded. Silber J held that Kurtollis case met the lower threshold (compared to the case of N) of whether it was without any basis (para. 59). The crucial difference seems to have been that there is nothing extraterritorial about where Mrs Kurtolli would suffer as I must now explain. An important ingredient of the Article 3 claim of the Kurtolli family is the consequence to Mrs Kurtolli of being told while she was living in this country that she would have to go abroad, in the words of Silber J. (para. 81). The consequence would have been, on medical evidence, an immediate worsening of symptoms leading to a high risk of Mrs Kurtolli attempting suicide. In cases in which the consequences of the expulsion itself are direct, imminent and serious, this case may indicate the way ahead. The Humanitarian Approach and the Problem of Subjectivity Sawyer showed that the approach of the Court of Appeal in N was to question the correctness of D v UK and counsel its application only in exceptional cases (Sawyer 2004). The House of Lords interpreted the Court of Appeals approach as narrowing the application of D to cases in which pressing humanitarian considerations prevail (para. 9). The House of Lords rejected the humanitarian test because of its supposed subjectivity, since it would require judges to measure their sympathy for particular applicants. The House of Lords expressed sympathy for the situation of N, while recognising that they were unable to apply article 3 on that basis. Lord Hope explained why:

Downloaded by [University of Warwick] at 23:15 13 April 2012

78

Cases
The function of a judge in a case of this kind is not to issue decisions based on sympathy. Just as juries in criminal trials are directed that they must not allow their decisions to be influenced by feelings of revulsion or sympathy, judges must examine the law in a way that suppresses emotion of all kinds. (para. 21)

Downloaded by [University of Warwick] at 23:15 13 April 2012

However, a decision in favour of the appeal by N would not inevitably have been based on emotion. FitzGibbon argued that this case was not about the degree of emotion generated by the situation but whether knowingly sending a person to a preventable death amounts to inhuman or degrading treatment To say it does is not a judgement based on inappropriateor indeed anyemotion (FitzGibbon, 2005). The requirement that the applicant face a real risk of a painful and protracted death because of inadequate medical treatment could be interpreted as a limitation designed to prevent wider application of article 3 to removal cases on medical grounds. Judges could weigh the risk that a person with HIV/AIDS would face death from an AIDS-related illness due to a lack of medical care in their country of origin. The probability and severity of harm in this case were not truly in doubt. The Strasbourg case law since D v UK could be interpreted as the application, rather than the narrowing (as was suggested in N v SSHD), of the test in D. The strictness of this test could be one way to alleviate the concern of the House of Lords that allowing the claim in N would begin a flood of indeterminate claims on publicly funded health care.

The Wider Implications The case of N has clear consequences for the fate of people facing removal followed by death from a terminal illness. It has an impact on the extent of the extraterritorial effect of article 3 of the European Convention on Human Rights. After N v SSHD, it seems uncertain whether the courts would apply D v UK to a case on the exact factual situation of D. Lord Nicholls observed that the humanitarian considerations in the case of D are not very exceptional in the case of AIDS sufferers (para. 13). If only people in very exceptional circumstances can resist removal, and if the facts of D are not very exceptional, then the category of very exceptional circumstances would appear to be an empty one. The concern that permitting N to remain in the United Kingdom would cause many such claims appears to have been a significant factor in the decision of the House of Lords to decline to apply article 3 and D v UK to the case of N. The claim by N was presented as an unjustified claim on British health care resources, whose acceptance would make the United Kingdom vulnerable to more claims of this type. Lord Nicholls held that as the Strasbourg jurisprudence confirms, article 3 cannot be interpreted as requiring contracting states to admit and treat AIDS sufferers from all over the world for the rest of their lives (para. 17). For Lord Hope, the success of the applicants claim would risk drawing into the United Kingdom large numbers of people already suffering from HIV in the hope that they too could remain here indefinitely so that they could take the benefit of the medical resources that are

Journal of Social Welfare and Family Law

79

available in this country. This would result in a very great and no doubt unquantifiable commitment of resources which is, to say the least, highly questionable (para. 53). Baroness Hale and Lord Brown made similar observations about the millions of people who are HIV positive (paras 67 and 72, respectively). The court considered the wider costs of a decision in favour of applying article 3 to N. If the court could be said to be balancing the article 3 obligation against the cost of providing health services, it could be argued that no balancing of competing interests is permissible under article 3 (Blake & Husain, 2003, pp. 7778). Having opened the doors to consideration of policy issues in cases of this type, the courts could also consider the costs of a decision to decline to apply article 3. A lack of free access to treatment and the threat of return to face a painful death may inhibit migrants from being tested for HIV, which could lead to the further spread of the virus (Terence Higgins Trust, 2004). It has been found that 95% of those who were HIV positive in Africa were unaware of their status when they became ill (Ferriman, 2001). Research has found that most migrants are unaware of their HIV status until they have been in the UK for nine months (Terence Higgins Trust, 2004). It has been noted that the woman known as N was herself unaware of her HIV status when she entered the UK. This kind of evidence might prompt the courts to reconsider whether the fear of a flood of HIV/AIDS health tourists is well founded. The difficulty of reaching the United Kingdom for people with HIV/AIDS should not be underestimated. Households including family members with HIV/AIDS experience a dramatic decrease in family income as they lose the work of both the patient and the caregiver(s) (Sepulva et al., 2003). Don McCullins work in documenting the stories of people in Sub-Saharan Africa living with HIV/AIDS vividly illustrates some of the difficulties. Many people are living with HIV/AIDS in conditions of severe poverty. Some of them experience difficulties with mobility, including a number of people who are unable to leave their beds (McCullin, 2005). McCullin found people caring for several children who were orphaned by AIDS. Uganda, with a population of about 25 million, has an estimated two million orphans, of whom an estimated one million were orphaned by AIDS. An African person with advanced HIV/AIDS, living in poverty and struggling with health difficulties, would not easily be able to travel to the UK under ordinary circumstances. Such a person would be arguably even less likely to be able to overcome the legal and policy barriers that the UK has constructed to prevent successful applications for refugee status (Clayton, 2004; Stevens, 2004). The reluctance of judges to apply article 3 to the situation of N can be perceived as an instance of the wider policy of withdrawal of free health care from migrants in the United Kingdom, as in France, as an attempt to provide a deterrent to migration (Da Lomba, 2004). However, a close examination of the relevant principles shows that allowing such claims need not open the gates to a flood of migrants with HIV/AIDS. To pass the second test of a sufficiently predictable lack of treatment with sufficiently serious consequences, the applicant must have come from a relatively low income state. Such a person would tend to find it difficult to afford travel to the United Kingdom. If an applicant has sufficient wealth to travel to the UK, all else being equal,

Downloaded by [University of Warwick] at 23:15 13 April 2012

80

Cases

it would appear likely that they will have access to adequate medical treatment in their home state. They will therefore fail the second test. A humanitarian approach, such as that proposed by the Court of Appeal in N, need not necessarily involve a subjective test in which judges would have to measure their emotional responses to particular cases. Instead, judges could weigh the probability and severity of harm in an approach that would narrowly limit protection. Following a decision made on the day of the 2005 UK General Election, after an election campaign in which issues of immigration and asylum were significant, it would be unfortunate if a fear of a flood of claims were to lead the courts to deny people protection from the physical and mental suffering that is likely to occur in cases of this kind.
Downloaded by [University of Warwick] at 23:15 13 April 2012

BETTINSON ALWYN JONES Department of Law De Montfort University

VANESSA

References
Akiki, Faith Spicer (2002) The focus on Women Kampala Declaration: Ugandan women call for action on HIV/AIDS, British Medical Journal, vol. 324, p. 247. Blake, Nicholas Q. C. & Husain, Raza (2003) Immigration, Asylum and Human Rights, Oxford University Press, Oxford. Clayton, Gina (2004) Textbook on Immigration and Asylum Law, Oxford University Press, Oxford. Cooper, John (2003) CrueltyAn Analysis of Article 3, Thomson, Sweet & Maxwell, London. Ferriman, Annabel (2001) Doctors demand immediate access to antiretroviral drugs in Africa, British Medical Journal, vol. 322, pp. 1012. FitzGibbon, Francis (2005) The case of N, London Review of Books, 21 July 2005. Furber, Andrew S., Hodgson, Ian J., Desclaux, Alice & Mukasa, David S. (2004) Barriers to better care for people with AIDS in developing countries, British Medical Journal, vol. 329, pp. 12811283. Home Office (2005) Uganda Country Report, Home Office Country Information and Policy Unit, London, April 2005. da Lomba, Sylvie (2004) Fundamental social rights for irregular migrants: the rights to health care in France and England, in Szyszczak Irregular Migration and Human Rights: Theoretical, European and International Perspectives, eds Barbara Bogusz, Ryszard Cholewinski, Adam Cygan & Erika Leiden, The Hague, Martinus Nijhoff, pp. 363386. McCullin, Don (2005) Life Interrupted: HIV/AIDS in Africa, Department for International Development and Christian Aid. Sawyer, Caroline (2004) (Insufficiently inhumane: removing AIDS patients from the UKN v Secretary of State for the Home Department (Terence Higgins Trust intervening) [2003] EWCA Civ 1369 [2004], Journal of Social Welfare and Family Law, vol. 26, no. 3, pp. 281288. Sepulva, Cecilia, Habiyambere, Vincent, Amandua, Jacinto, Brook, Margaret, Kikule, Ekie, Mundanga, Barbara, Ngoma, Twalib & Solomon, Bogale (2003) Quality care at the end of life in Africa, British Medical Journal, vol. 327, pp. 209213. Stevens, Dallal (2004) UK Asylum Law and Policy, Thomson Sweet & Maxwell, London. Terence Higgins Trust (2003) Written Evidence to All-Party Parliamentary Group on AIDS and RefugeesInquiry into Migration and HIV, Terence Higgins Trust, London. Terence Higgins Trust (2004) Access to HIV services for all migrants to the UK, Terence Higgins Trust, London. Watt, Bob (2000) HIV/AIDS and European Human Rights Law, European Human Rights Law Review, vol. 1, pp. 5465.