Muslim asylum-seekers and conversion: A v Switzerland

The ECtHR has concluded that an asylum-seeker who has converted to Christianity will not necessarily face persecution if returned to Iran.

In A v Switzerland [2017] ECHR (no. 60342/16), the applicant, an Iranian, entered Switzerland in 2009 and immediately claimed asylum. He brought three sets of asylum proceedings, all without success. In his second application, he submitted at a hearing that he would be at risk if returned to Iran because he had converted from Islam to Christianity. The authorities doubted, however, that his conversion was genuine and rejected his application. Continue reading

“English Nationalism” as a protected belief? Mr S T Uncles

Is belief in “English Nationalism” a protected characteristic under the terms of s10 Equality Act 2010? Not in the opinion of the Employment Tribunal in Mr S T Uncles v NHS Commissioning Board and others [2017] UKET 1800958/2016.

Mr Uncles brought a series of complaints arising out of the termination of his agency work with the first respondent with effect from 6 May 2016, including unfair dismissal, breach of contract in relation to notice, unlawful deductions from pay and complaints of discrimination or harassment related to race, sex and philosophical belief. The claimant described himself as English, and the philosophical belief on which he relied was a belief in English nationalism [1]. It is the last of these that concerns us here. At the time of his dismissal, he was facing a prosecution for electoral fraud which he had not disclosed to his employers [118]. Continue reading

Extradition, fear of persecution and the ECHR: FG v Sweden

Background

FG is an Iranian who arrived in Sweden in November 2009 claiming asylum. In his initial asylum application, he submitted that he had been politically active against the Iranian regime. He also mentioned that he had converted to Christianity after coming to Sweden but said that he did not wish to rely on it as a ground for asylum because he considered it a personal matter. He was refused asylum on political grounds but requested a stay of deportation, relying on his conversion to Christianity as a new fact to be taken into consideration. His request was refused; however, he took the matter to the ECtHR and his expulsion was stayed by an interim ruling in October 2011 under Rule 39 of the ECtHR Rules of Court that he should not be expelled to Iran while the Court was considering his case. In the Chamber judgment of 16 January 2014, the Court rejected his application by four votes to three: he appealed to the Grand Chamber. Continue reading

Law and religion round-up – 18th October

Two difficult medical cases,  an announcement on the devolution of abortion law, same-sex marriage in the Isle of Man – and more…

Can parents choose alternative remedies against medical advice?

In JM (a child), Re [2015] EWHC 2832 (Fam) a ten-year-old child, J, has a very rare aggressive cancer in his right jawbone. The NHS Trust sought permission to perform urgent surgery: his parents want to use Chinese medicine instead. The unambiguous medical evidence before the court was that, without surgery, in six months to a year J would die “a brutal and agonising death”. Mostyn J found for the NHS Trust:

“The NHS trust has permission to provide and administer all treatment to J (notwithstanding that his parents do not consent to such treatment on behalf of J) in accordance with the treatment plan supplied to the court and appended to this order” [18].

Since UKHRB has posted a full note of the case there is no point in us writing another one.

Vincent Lambert and the right to life Continue reading

Can a patient who lacks capacity refuse medical treatment? Wye Valley NHS Trust v B

Background

Mr B, aged 73, has Type II diabetes and a severely infected leg caused by chronic ulceration; and unless doctors amputate his foot he will die, possibly within a few days, because his wound has passed the stage where removal of infected tissue is an effective treatment. If he has the operation, however, he may live for a few years more. He also has paranoid schizophrenia, which deprives him of the capacity to make the decision for himself. For a long time, Mr B has experienced persistent auditory hallucinations in which he hears voices of angels and of the Virgin Mary. He told the judge that he did not consider himself to belong to any particular religion, saying I’m not fussy, but explained that Mary wanted him to be a Roman Catholic [19].

In May 2015 Mr B was detained compulsorily under s 3 of the Mental Health Act; nevertheless, he continued to resist medication for his diabetes and antibiotics for his foot, with the consequence that by the time his mental health had begun to recover in August, his physical health had markedly deteriorated [23]. A best interests meeting in September concluded that an application should be made to the Court of Protection and the matter first came before the court on 18 September, when the present hearing was fixed, reported as in Wye Valley NHS Trust v B [2015] EWCOP 60. On 25 September the judge, Peter Jackson J, met Mr B in his hospital room for over an hour in the presence of his clerk, who took a note, and a nurse, Mr F, who helped the judge understand everything that Mr B wanted to say [26]. Continue reading

Withdrawal of life support – again: Lambert & Ors v France

Background

Vincent Lambert was in a vegetative state and had to be artificially fed and hydrated. His parents, half-brother and sister wanted him to be kept fed and hydrated while his wife, his nephew and his physicians wanted life-support discontinued. The Administrative Court had held that withdrawal of artificial nutrition and hydration would be “a serious and manifestly unlawful breach of [his] right to life”.

On appeal, however, the Conseil d’État held that the provision in the Public Health Code authorising doctors to withdraw and withhold “unreasonably persistent medical treatment” [un traitement médical qui traduirait une obstination déraisonnable] did not violate Article 2 (right to life) or 8 (private and family life) ECHR [47] Continue reading

Jehovah’s Witnesses and objections to blood transfusion

The Daily Telegraph reported a recent case, Birmingham Children’s NHS Trust v B & C [2014] EWHC 531 (Fam), in which Mr Justice Keehan gave permission for a baby boy to undergo blood transfusions during an operation notwithstanding his parents’ objections on religious grounds.

The facts

A was born on 7 February 2014 with complex cardiac defects including a hole in the heart. A successful interim procedure was performed to improve his oxygen levels while he waited for an operation scheduled for 14 February [para 3].

A’s parents, B and C, are Jehovah’s Witnesses. They did not wish to take part in the hearing and application but they e-mailed Keehan J with their views. They consented to A undergoing the recommended surgery but because of their religious beliefs could not consent to him receiving blood during the operation itself or subsequently, should the need arise. They explained that they understood that the court might well overrule their religious objections and order the surgery to take place with the necessary blood transfusions. They also explained that they did not wish to take part in the proceedings because they did not want to make them any more complex than necessary. In short:

“They will not actively try to prevent the treatment of their son, A. Nor do they actively oppose this application made by Birmingham Children’s Hospital” [para 4].

Dr B, a consultant paediatric cardiologist at Birmingham Children’s Hospital, gave sworn evidence by telephone that if the procedure was not carried out A was unlikely to survive beyond babyhood. The risks of the proposed surgery were relatively low; however, it could not be done without blood products being supplied to A during and possibly subsequent to the procedure. He further said that if the proposed operation was carried out successfully A’s prospects were excellent and that he would lead a normal life [para 5].

Keehan J said that in considering the application he had to consider A’s “welfare best interests” in the widest possible sense. The risks of the scheduled procedure were minimal but without it A’s chances of survival were extremely poor. He gave great weight to the fact that the parents consented to A undergoing the surgery because they understood and accepted that there was no choice if A was to survive [para 6]. He understood their religious objection to their baby receiving blood products during or subsequent to the surgery and he gave them great credit for not actively opposing the application despite their strongly-held beliefs [para 6]. However,

“Standing back and looking at A’s welfare best interests, I am in no doubt whatsoever that it is in his best interests to undergo the surgery that is proposed by Dr B tomorrow. On the basis that that is my view, it is inevitable that he must receive blood transfusions during the course of or subsequent to the surgery. Accordingly, I am again of the view, notwithstanding the parents’ understandable objections on religious grounds, that it is in A’s welfare best interests to receive blood products both during the surgery and, if necessary, subsequent to it” [para 8].

He therefore approved the following orders:

“(1) It is lawful and in A’s best interests that he undergo urgent heart surgery to switch his great arteries … which requires his blood to be passed through a heart bypass machine and a blood transfusion entailing the administration of blood and/or blood products.

(2) In any other immediately life-threatening situation where it is the professional opinion of those medically responsible for A that he is in need of the administration of blood and/or blood products, it shall be lawful for him to be given such blood and/or blood products without the consent of his parents…

(3) In any situation which is less than imminently life-threatening, those medically responsible for A shall consult with his parents … and will consider at every opportunity all alternative forms of management suggested by his parents to the administration of blood and/or blood products. In the event that those medically responsible for A conclude, after such consultation, that there is no reasonable alternative to the administration of blood and/or blood products, they shall be at liberty to administer such blood and/or blood products without the consent of his parents” [para 10].

Discussion

Comment is largely superfluous, except perhaps to note that nowhere in his judgment did Keehan J refer to the parents’ Convention rights: possibly because B and C had not actively opposed the application and were not represented and possibly because the application related to a matter of some urgency. However, Convention rights were argued in a recent Northern Irish case, Re S [2013] NIFam 8, which involved a 26-year-old with severe learning disabilities who needed several teeth extracting under general anaesthetic. His mother, a Jehovah’s Witness, had refused consent to the possibility of giving him a blood transfusion.

In that case (which we noted in the weekly roundup at the time) Morgan LCJ, sitting alone, ordered that blood products should be made available for the extractions against the unlikely event that S should experience severe bleeding. He accepted that the facts engaged Articles 2 (right to life), 3 (inhuman or degrading treatment) and 8 (private and family life) ECHR. However, a therapeutic necessity could not be regarded as inhuman or degrading [para 8]; and because of the possible risk of severe bleeding he was prepared to make the necessary declaration to permit the use of blood products – but only in the very limited circumstance that their use was necessary in order to preserve S’s life [para 9]. Article 9 (thought, conscience and religion) was not mentioned.