On 25^th July 1978 something rather remarkable happened. A baby girl was born to two doting parents. Now some days short of her 40^th birthday there is nothing to indicate that she is one of the most extraordinary human beings of all time. Louise wasn’t just another baby girl in the maternity wing at Oldham General Hospital – her parents, Lesley and John Brown had battled for nearly a decade to conceive a child and then – when investigations revealed that Lesley’s fallopian tubes were blocked – nearly gave up the struggle. But having fought against the odds for so long, their luck changed when they met Patrick Steptoe and Robert Edwards in 1976. Steptoe and Edwards were carrying out research into artificial insemination. In 1977 they fertilised Lesley Brown’s eggs in a petri dish and then implanted her with a two and a half day old embryo.

The rest is history. Louise was the first human to be conceived using in vitro fertilisation. IVF gradually became widely available and recent estimates suggest that approximately 6 million people have been conceived worldwide with IVF in the last 40 years.

M v ABM University Health Board [2018] UKUT 120 (AAC) (UTJ Mitchell)

Background

The appellant was a patient (‘Mr M’) detained for treatment pursuant to section 3 of the Mental Health Act 1983 since 26 March 2015. The respondent was ABM University Health Board, the responsible authority.

The precise chronology is difficult to specify, but it is clear that over various periods of time, Mr M was covertly administered various medications to meet his complex mental and physical health needs. It is also clear that although he posed various “management challenges” to staff caring for him, he was also at times compliant with medication.

A decision was taken to provide Mr M with covert medication on the basis of what was said to be a best interest meeting and an assessment of Mr M’s capacity to consent to treatment, although it appears that the documents evidencing the decision and assessment were not provided to the Tribunal. However, the covert medication regime was not consistently in place and at the time of the Tribunal, Mr M had not been receiving covert medication for some three months, a fact which was not put before the Tribunal.

The recent case of R (on the application of Conway) v Secretary of State for Justice (Humanists UK and others intervening) [2017] EWHC 2447, [2017] All ER (D) 22 (Oct) concerns a man suffering from motor neurone disease.

Mr Conway wants the option to end his life when he considers it is no longer worth living. He brought an application seeking a declaration of incompatibility in respect of s 2 of the Suicide Act 1961 (SA 1961), arguing that section is a disproportionate interference with his right to private life under Art 8 of the European Convention on Human Rights. The claimant proposed that any lawful scheme would involve safeguards such as a prognosis that the person has less than six months to live and the involvement of a High Court judge to confirm that any statutory criteria were met.

This is the most recent in a line of cases considering the relationship between Art 8 and assisted suicide or euthanasia (the difference being that the latter involves active steps to end life by a third party, usually a doctor, while the former does not). Earlier cases include Pretty [2001] UKHL 61 and (2002) 35 EHRR 1, Purdy [2009] UKHL 54 and Nicklinson [2014] UKSC 38. The European Court has considered similar cases from other countries. However, the court noted that at present only five of the 47 member states of the Council of Europe permit any form of assisted suicide.

Charlie Gard has a rare genetic mitochondrial illness affecting in particular his brain, muscles, and ability to breathe. In October 2016, within two months of being born, he was admitted to Great Ormond Street Hospital experiencing lethargy and shallow breathing.

In December 2016, Charlie’s mother heard about a new treatment being administered to a child at a reputable medical centre in the US. Great Ormond Street contacted the US team and was told there was no direct evidence about the efficacy of this treatment for someone with Charlie’s condition but ‘theoretical and anecdotal evidence’ that it might help.

In January 2017, an application was made to the ethics committee for the treatment to be trialled in the UK. However, during January a very serious deterioration of Charlie’s condition led doctors to conclude that further treatment would be futile, only prolonging Charlie’s suffering.

Sir Mark Hedley has given an impressively short judgment approving an unusual settlement of a claim for damages under the Human Rights Act 1998. The claim was brought by CH, a 38-year-old man with Downs Syndrome and an associated learning difficulty. CH married WH in 2010 and they lived together in his parent’s home, enjoying normal ‘conjugal’ relations like any other married couple. In 2014, the couple sought fertility treatment, which led to a query as to whether CH had the mental capacity to consent to sexual relations at all. He was assessed by a consultant psychologist, who considered that CH did not have such capacity, but needed a course of sex education to help him achieve it.

The generally under-regarded section 1(3) of the Mental Capacity Act 2005 provides that a person is not to be regarded as lacking capacity to make a decision ‘unless all practicable steps to help him to do so have been taken without success.’ In CH’s case, the practical assistance he needed was clearly defined: a course of sex education. This was duly requested, but not provided. Instead, the local authority wrote to the couple in March 2015 saying that WH could no longer have sex with her husband because this would be a serious criminal offence. WH understood that if she flouted this, the couple would be separated. She therefore moved into a separate bedroom, and ‘significantly reduced any physical expressions of affection’ so as not to lead CH on. As Sir Mark Hedley commented: ‘the impact of all this on CH is not difficult to imagine.’