Stephanie Prior, Partner
Medicine, Science and the Law - October 2009
Email Stephanie
HUMAN RIGHTS
R (on the application of AB) v (1) Secretary of State for Justice (2) Governor of Manchester prison (2009)
[2009] EWHC 2220 (Admin)
QBD (David Elvin QC) 4 September 2009
A, the Claimant, was a pre-operative transgender woman, who had been granted a certificate under the Gender Recognition Act 2004. This required that she be recognised as a woman ‘for all purposes’ under S. 9 of the Act. While serving an automatic ‘two strikes’ life sentence for offences committed whilst a man, she sought to be transferred from the men’s prison where she was residing, to a female prison. The Secretary of State (S) refused to allow the transfer and accordingly A sought judicial review against the Secretary of State for Justice and the Governor of HMP Manchester, challenging the decision to refuse her transfer. A had been convicted of the manslaughter of a male partner and of the attempted rape of a woman five days after being released for the previous conviction.
A had been born a man and later diagnosed with gender dysphoria. During her current conviction A began taking steps towards becoming a woman with the ultimate goal of undergoing gender reassignment surgery. She had undergone hormone treatment as well as laser hair removal and was under the care of staff at the Gender Identity Clinic, Charing Cross Hospital, London. Despite residing within a male prison, albeit segregated from the male population of the prison in the vulnerable prisoners unit, A lived as a woman. Terms of a written agreement between herself and the prison service gave her access to private washing and laundering facilities, but also imposed restrictions upon what she could wear outside her cell and how much make-up she could apply. She was also unable to partake in any offending behaviour work, a pre-requisite to progressing towards her eventual release, and was refused parole in June 2007 due to risk factors.
The Gender Identity Clinic refused to perform gender reassignment surgery on her until she had spent time living as a woman within a female prison. As long as A was detained in a male prison, she was barred from her ultimate goal of undergoing surgery.
There are two instances in which a female prisoner would be detained in a male prison, including where the security requirements are so high that a female prison cannot meet them, or where such measures are merely temporary. S accepted that, in the present case, neither of these exceptions applied and indeed that a biologically female prisoner with the same risk profile as A would be detained in a female prison.
A alleged that her right to personal freedom and autonomy had been violated as a result of her continued detention within a male prison and by the strict terms of the agreement in relation to her clothing and makeup. This, she claimed, violated her rights under Article 8 of the ECHR. A further contended that the treatment to which she had been subjected amounted to unjustified discrimination under Article 14. She went on to state that her continued detention within a male prison was in any case unlawful on ‘Wednesbury’ grounds. The judge considered each of these points in turn.
With regard to the alleged breach of Article 8, the judge concluded that the decision to keep A in a male prison effectively ‘barred her ability to qualify for surgery which interfered with her personal autonomy in a manner which went beyond that which imprisonment was intended to do’. He also said the agreement between the parties as to clothing and makeup gave A a degree of freedom but was ‘indicative that there are perceived to be practical limitations in keeping her on the male prison estate which are unlikely to operate in a female prison’. Concluding that the interference with A’s autonomy was a ‘significant and personal one’ which went ‘to the heart of her identity’ the judge found that S had breached A’s Article 8 rights. He added that S had failed to justify the said interference as a proportionate means to achieve any of the legitimate aims listed under Article 8.2.
It was held that it would not be necessary to consider any claim under Article 14 as the Judge’s decision was ‘in any event Wednesbury unreasonable given the failure by the Secretary of State to consider the implications in terms of frustration and increased risk of the denial to the Claimant of the opportunity to qualify for surgery in a female prison and the failure to consider the likelihood of segregation in due course even in a male prison and the cost of this.’
S’s case was quashed and it was held that A’s continued detention in a male prison breached Article 8 of the ECHR.
FAMILY LAW
Re L (a child) (2009)
Unreported
CA (Civ Div) (Ward LJ, Waller LJ (V-P), Stanley Burnton LJ) 20 August 2009
A, a thirteen-year-old girl and B, her nine-year-old brother, were taken into care following the discovery of injuries sustained while under their parents’ care. A and B had flown from the Ivory Coast to join their parents the UK.
During a fact finding hearing into the children’s injuries, a question arose as to the paternity of B. The court ordered that it was in B’s best interests that a paternity test be undertaken. However, B’s father, F, refused to supply a sample thereby frustrating implementation of the order.
It was, therefore, ordered that A should submit samples instead under the Family Law Reform Act 1969 s.20(1), in order that B’s paternity could be established using a sibling link. A’s guardian wished to give oral evidence at the hearing as to the impact such testing would have on A. The judge considered written submissions only instead.
A’s guardian sought to appeal the decision to subject A to testing on the basis that ‘the judge had failed to undertake a full and reasoned analysis of A’s best interests’.
It was held that the judge had erred in not distinguishing between s.20 and s.21 of the Family Law Reform Act 1969. S.20 allows the court to determine the matter of blood testing when it considers it appropriate to do so. S.21 empowers the court to order a blood sample to be taken from a child only when it considers it to be in the best interests of the child from whom the sample is being taken. Accordingly, the judge had asked himself the wrong question. It was not whether it was in A’s best interests that a sample be submitted for testing, but whether to do so would be adverse to her best interests. The local authority had failed to address whether A would be told the reason for the test and no evidence had been put forward by them as to the psychological effect testing would have on A.
It was held that the fact finding stage was not the time to consider paternity testing and that this should be undertaken at a second stage enquiry. Accordingly, the order was discharged and the issue adjourned until the outcome of the fact finding stage was determined.
CLINICAL NEGLIGENCE
H B Farraj (1) B Farraj (2) v King’s Healthcare NHS Trust (1) Cytogenetic DNA Services Ltd (2) (2008)
[2008] EWHC 2468 (QB)
QBD (Burnett J) 17 October 2008
A Jordanian couple (F) who carried the gene responsible for the blood disorder beta thalassaemia major (BTM), a life-threatening disorder resulting in the production of faulty haemoglobin molecules, claimed for the wrongful birth of their child following negligent prenatal testing for the disorder.
The child’s mother provided the defendant NHS Trust (K) with a chorionic villus sample. K noted the possibility of maternal contamination of the sample, however when the mother’s obstetrician offered a fresh sample, the Trust did not take up this offer.
The sample was sent to the second defendants (C) for culturing and the results returned were negative. A report by K stated that the child did not have BTM. The mother carried the child to term and gave birth to a baby boy. Following his birth the child was diagnosed as suffering from BTM.
Upon investigation, it was discovered that the sample provided by the mother was heavily contaminated with maternal cells. A letter of referral was found to have been annotated by the person who carried out the culturing process, noting that the tissue sample was of very poor quality.
F alleged that K should have enquired of C whether the sample provided was of adequate quality to provide reliable results, and that C should have volunteered this information. F alleged that K was negligent in its drafting of the report regarding the test results as it ‘expressed over confidence that the foetus was clear of BTM’. They alleged that both K and C should have been aware that the quality of the sample was too poor to provide reliable results. F claimed that had they known the child would have BTM the pregnancy would have been terminated.
It was held that although English law did not admit a claim for the wrongful birth of a child who would, but for the negligent act, have been aborted, it would admit the claim for the costs associated with such a birth. It was also held that K was entitled to rely upon the expertise of C as a competent cytogenetics laboratory and that the ordinary principles of tort relating subcontractors applied. K and C were found to be liable. The mother’s obstetrician had made assumptions, based on the report from K, that the possibility of maternal contamination had been entirely eliminated, particularly as his offer to supply a second sample had not been taken up. This was not reflected in the report which did recognise the small risk of maternal contamination. C had identified that the sample was indeed likely to be contaminated, but this finding was not passed on and discovered purely because of annotations on a referral letter. This concern should have been conveyed to K. Had this been communicated to K, and in turn to the mother’s obstetrician, a second sample would have been obtained which would have highlighted the child’s condition.
C was held to be more culpable than K on the basis that it had been in possession of the relevant knowledge but had failed to pass it on, whereas K had operated upon the assumption that the sample was of acceptable quality. Liability was apportioned two thirds to C and the remaining third to K.
PERSONAL INJURY
Loyola Lea Watson v Cakebread Robey Ltd (2009)
[2009] EWCH 1695 (QB)
QBD (Satinder Hunjan QC) 10 July 2009
C, the Claimant, was 56 years of age when he was admitted to hospital with a distended abdomen. He was diagnosed with peritoneal mesothelioma, cancer of the lining of the abdominal cavity. C underwent chemotherapy with little success and was given a life expectancy of twelve months.
C brought an action against his former employer for personal injury caused by his exposure to asbestos in the course of his employment and was awarded judgment. By the time judgment was awarded C had already exceeded his life expectancy of twelve months. Damages were therefore assessed on the basis of a further life expectation of nine months.
C sought to recover both past and future loss of earnings, as well as an award for general damages in the region of £75, 000. He also sought an award in respect of his funeral expenses; his argument was that ‘as a living claimant he should be allowed to step into the shoes of his estate’.
C was awarded £46,530.46 in respect of past loss of earnings, £102,571.36 for future loss of earnings, and £75,000 for general damages.
It was held that no claim could be made in respect of C’s funeral expenses. Claims for funeral expenses were viable in fatal accident claims under s. 1(2)(c) of the Law Reform (Miscellaneous Provisions) Act 1934 where such costs were incurred by the deceased’s estate, or under s.3(5) the Fatal Accidents Act 1976 where such costs were incurred by the deceased’s dependants. It was held that a claim for funeral expenses could not be made by a living claimant otherwise all future claimants whose life expectancy had been reduced by the negligent act or omission of another would be eligible for such an award, regardless of the extent to which their life expectancy had been reduced.
Stephanie Prior is a Partner at Anthony Gold. She specialises in complex personal injury and clinical negligence work, with a particular interest in birth injuries, child abuse claims and fatal accident cases. For further information email Stephanie Prior or call 020 7940 4000.
