Laura C. H. Hoyano

Policing Flawed Police Investigations: Unravelling the Blanket

This article published in 2000 analyses the very controversial decision of the European Court of Human Rights in Osman v. UK which critiqued the approach of the English courts toward blanket immunity from tort liability for some public authorities (in that case, relating to negligent police investigations). I argued that it is possible to construe Osman as standing for no broader proposition than when the domestic courts have carved out some exceptions to a general rule confirming immunity upon a class of decision-makers, litigants must be afforded the opportunity to bring their case within those exceptions or (in the case of a judge-made immunity rule) to develop further exceptions. However there is also a wider interpretation that blanket immunity for any class of potential tort feasors is likely to violate ECHR Article 6 (the right of access to the civil courts) if the common law courts do not leave themselves free to examine the merits of each case and to weigh the public policy considerations for and against the existence of the duty of care in that case. The article concludes that it would be better if negligence law could regain its original vigour and flexibility rather than forcing human rights law to do its work.

Withholding potentially life-sustaining treatment and the Mental Capacity Act 2005

The UK Supreme Court (UKSC) has made its first ruling under the Mental Capacity Act 2005 (MCA), in Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67, resolving a profound disagreement between the Court of Protection ([2012] EWHC 3524) and the Court of Appeal ([2013] EWCA Civ 65) as to the proper approach to determining whether a particular life-sustaining medical treatment is in the ‘best interests’ of a mentally incapacitated patient. David James had suffered a series of medical catastrophes which had left him with very limited awareness, virtually complete immobility and complete dependency on artificial ventilation. Nevertheless, he recognised his family with pleasure, kissed his wife, mouthed what appeared to be words, and appeared to enjoy newspapers and videos. The hospital applied for advance orders under s. 15 that it would be lawful to withhold cardiopulmonary resuscitation, invasive circulatory support and renal replacement therapy, if clinical deterioration warranted invasive intervention. The applicant maintained that the prognosis was gloomy, the treatment might not work and would be extremely burdensome to endure, and he faced a prolonged, excruciating and undignified death. The family strongly opposed the application because James had previously survived dangerous bouts of infection, and he had a measurable quality of life from which he gained pleasure; they thought that, were he capable of decision-making, he would want treatment to the point where it became hopeless, and that point had not yet been reached. Peter Jackson J refused the application, but in the 15 days between that ruling and the appeal hearing James’s condition greatly deteriorated, and the Court of Appeal granted the order. Ten days later James died, but the UKSC agreed to hear the appeal given the important differences in the courts below regarding the interpretation of the MCA and the Code of Conduct issued thereunder in 2007. Lady Hale, for a unanimous Court, held that the parties had erroneously formulated the question as being whether it would be lawful to withhold any of the identified treatments; rather, the correct question was whether it would be in the patient’s best interests to give them should the occasion arise. The s. 5 defence for acts which the actor reasonably believed to be in the best interests of a patient lacking capacity was to be interpreted in accordance with the common law (Airedale NHS Trust v Bland [1993] AC 789, Re J (A Minor) (Child in Care: Medical Treatment) [1991] Fam 33 and R (Burke) v General

Review: Murder, Medicine and Motherhood: Hart

Notwithstanding the sweeping title, this book is about one case: Kathleen Folbigg’s 2003 conviction in New South Wales for the murder of three of her children and the manslaughter of a fourth, when they were aged between 19 days and 19 months, for which she is still serving cumulative sentences of 30 years’ imprisonment. As Emma Cunliffe notes in her conclusion, this is the only case in Australia or England in which a conviction still stands of a mother for the homicide of her children, where there was considerable scientific uncertainty as to whether the cause of death was non-natural. So the question for the reader is what this singular, now apparently aberrant, case tells us about ‘the relationship between medicine, motherhood, criminal justice and the media’, beyond its own boundaries.

Emma Cunliffe: Murder, Medicine and Motherhood

Notwithstanding the sweeping title, this book is about one case: Kathleen Folbigg’s 2003 conviction in New South Wales for the murder of three of her children and the manslaughter of a fourth, when they were aged between 19 days and 19 months, for which she is still serving cumulative sentences of 30 years’ imprisonment. As Emma Cunliffe notes in her conclusion, this is the only case in Australia or England in which a conviction still stands of a mother for the homicide of her children, where there was considerable scientific uncertainty as to whether the cause of death was non-natural. So the question for the reader is what this singular, now apparently aberrant, case tells us about ‘the relationship between medicine, motherhood, criminal justice and the media’, beyond its own boundaries.

Review: Murder, Medicine and Motherhood: HartCunliffeEmmaMURDER, MEDICINE AND MOTHERHOOD: Hart (Oxford, 2011), ISBN: 9781849461573, hbk, £38; 9781847316608, Adobe PDF ebook, £34.20

Notwithstanding the sweeping title, this book is about one case: Kathleen Folbigg’s 2003 conviction in New South Wales for the murder of three of her children and the manslaughter of a fourth, when they were aged between 19 days and 19 months, for which she is still serving cumulative sentences of 30 years’ imprisonment. As Emma Cunliffe notes in her conclusion, this is the only case in Australia or England in which a conviction still stands of a mother for the homicide of her children, where there was considerable scientific uncertainty as to whether the cause of death was non-natural. So the question for the reader is what this singular, now apparently aberrant, case tells us about ‘the relationship between medicine, motherhood, criminal justice and the media’, beyond its own boundaries.