On 29 August 2024, the Coroner handed down her findings in the inquest into the death of AS.
Content Warning: This case note discusses suicide, self-harm and gender identity discrimination. Readers may find it distressing.
A majority of the Supreme Court of the United States stayed an order by the District Court which suspended the requirement that people attend a hospital or clinic in-person in order to obtain mifepristone, a prescription drug used for medical abortions.
In July 2020, the District Court found that the in-person requirement posed an “undue burden” on people seeking an abortion in light of the COVID-19 pandemic. The Supreme Court’s decision reinstates the Food and Drug Administration’s requirement that patients attend a hospital, clinic, or medical office to pick up mifepristone and sign a disclosure form.
Read MoreThe High Court rejected a Melbourne business owner's claim that Victoria's Lockdown Directions infringed an implied freedom of movement from the Constitution. The Court's decision upheld the settled approach to constitutional interpretation, confirming the Constitution provides no basis for an implication of freedom of movement that limits legislative or executive power.
Read MoreOn 2 November 2020, the Supreme Court of Victoria dismissed the first substantive legal challenge to the validity of greater Melbourne’s lockdown laws. Justice Ginnane held that the curfew imposed between 9pm and 5am in greater Melbourne from 13 to 28 September 2020 (Curfew) was a lawful and proportionate measure in response to mounting cases of COVID-19 in Victoria.
Read MoreOn 18 May 2020, the US District Court for the Southern District of New York held that Mayor Bill de Blasio's 25 March Executive Order, which restricted non-essential public gatherings to curb the spread of COVID-19, did not violate the Plaintiff's First Amendment right to freedom of speech.
Although the decision only considered the severity of the pandemic in New York, it could also be relied on to restrict public protest throughout the duration of the pandemic in the United States. This could be particularly problematic in the context of the Black Lives Matter protest movement, which re-emerged on a global scale in early June.
Read MoreChristian Medical and Dental Society of Canada v College of Physicians and Surgeons of Ontario [2019] ONCA 393
Two policies required Ontario medical professionals to refer their patients to alternative health care providers, even if the medical professionals conscientiously objected on religious grounds to providing the health care.
There were two key issues in this case:
Did the mandatory referral policies infringe the right to freedom of religion? If so, were the means chosen to limit the right demonstrably justified?
Were the mandatory referral policies discriminatory?
The Ontario Court of Appeal balanced the rights of patients to access equitable health care with the rights of physicians with religious convictions and held that:
While the policies infringed the right to religious freedom, this was justified and reasonable in the circumstances; and
The policies did not discriminate against physicians with a religious belief.
The UK High Court has rejected the latest legal challenge to the prohibition on assisted dying, holding that the prohibition represents a necessary and proportionate interference with the applicant’s right to private life. The Court placed reliance upon the fact that Parliament had repeatedly decided to leave the prohibition in place, providing a timely reminder of the crucial role of Parliament in promoting a person’s right to die with dignity in the context of the assisted dying laws currently being debated in Victorian Parliament.
Read MoreIn a high-profile dispute between the parents of a terminally ill child and doctors at the Great Ormond Street Hospital over the child’s course of treatment, the UK High Court found that the best interests of the child require that he not be given experimental medical treatment and instead be taken off life support.
Read MoreA majority of the High Court has held that the act of infecting another individual with a sexually transmitted infection falls within the meaning of 'maliciously inflicting grievous bodily harm' under s 35(1)(b) of the Crimes Act 1900 (NSW). The decision also clarifies that it is sufficient that the Crown establish that an accused foresaw the possibility, and not the probability, that an act of sexual intercourse could result in the contraction of a grievous bodily disease for an accused to be convicted of the offence.
Read MoreThe High Court has unanimously allowed an appeal against a decision of the Queensland Court of Appeal, in relation to the criminal offence of intentionally transmitting HIV to another person.
The decision provides further guidance as to when evidence of a person’s awareness of risk, and foresight of the consequences of his actions, will suffice to prove criminal intent.
Read MoreThe Canadian Supreme Court has unanimously overturned the prohibition on assisted suicide and voluntary euthanasia contained in the Canadian Criminal Code. The Court found that the Code provisions infringe on the rights to life, liberty and security of the person, rights which are protected by the Canadian Charter of Rights and Freedoms.
Read MoreThis case concerns a patient's right to be consulted by clinicians prior to the imposition of a Do Not Attempt Cardio-Pulmonary Resuscitation (DNACPR) notice on her file. The Court of Appeal accepted that this decision engages the rights contained in article 8 of the European Convention on Human Rights (the Convention). In these circumstances, article 8 creates a presumption that patients will be consulted before a DNACPR decision, unless there is a convincing reason to justify exclusion. The Court made a declaration that in failing to consult the Appellant prior to imposing a DNACPR notice, without an appropriate justification, the Cambridge University Hospitals NHS Foundation Trust (the Trust) breached article 8 of the Convention.
Read MoreThe United States Supreme Court has overturned a Massachusetts law creating a 35 foot buffer zone outside reproductive health facilities. The Supreme Court held that the law violates the first amendment of the US Constitution because, while the buffer zone serves the State’s legitimate interests in maintaining public safety and preserving access to healthcare, it ‘burden[s] substantially more speech than is necessary’.
Read MoreM.C. v Aaronson [2013] (22 August 2013)
The United States District Court for the District of South Carolina Charleston Division has held that a sex assignment surgery on a child with an intersex condition which removed the child’s ability to procreate may have violated the constitutional right to procreation. The defendants’ motions to dismiss the case were denied and the plaintiff’s motion for expedited discovery was granted. This case has not yet proceeded to summary judgment.
Read MoreNicklinson, R (on the application of) v A Primary Care Trust [2013] EWCA Civ 961 (31 July 2013)
The England and Wales Court of Appeal (Court) declined to develop a defence of necessity where someone is accused of assisting suicide or murder in euthanasia cases. The Court also found that euthanasia related offences are not inconsistent with the right to private life under the European Convention on Human Rights (Convention). However, the Court built on an earlier decision requiring the Director of Public Prosecutions (DPP) to issue a policy setting out how the DPP will decide whether to prosecute a person for these offences, by finding that the consequences of these acts should be reasonably foreseeable to a person considering whether to assist suicide or euthanise.
Read MoreB v Waitemata District Health Board [2013] NZHC 1702 (8 July 2013)
Three applicants challenged a Waitemata District Health Board policy to prohibit smoking in its hospitals and surrounding grounds (Policy). The applicants argued that the Policy was inconsistent with the Board’s controlling legislation and the New Zealand Bill of Rights Act 1990 (Bill of Rights).
The New Zealand High Court dismissed the applicants’ claims, finding that the Board was lawfully exercising its powers consistent with its statutory framework. His Honour Justice Asher found no rights were limited by the Policy; however, he concluded that even if there were, these limitations would be justified in accordance with the Bill of Rights.
Read MoreMaloney v The Queen [2013] HCA 28 (19 June 2013)
The High Court has provided insight into the scope and operation of “special measures” under the Racial Discrimination Act 1975 (Cth) (RDA), holding that laws and regulations restricting the possession of alcohol on Palm Island were for the benefit of Aboriginal peoples. Contrary to statements of leading UN bodies such as the Committee on the Elimination of Racial Discrimination (UN Committee) and the UN Expert Mechanism on the Rights of Indigenous Peoples, the Court has found that special measures do not require either consultation with or the informed consent of an affected community.
Read MoreGross v Switzerland [2013] ECHR, Application no. 67810/10 (14 May 2013)
The European Court of Human Rights has held that Switzerland’s failure to provide clear guidelines as to when assisted suicide is permitted breached the right to respect for private life under article 8 of the European Convention on Human Rights. The Court declined to comment as to whether Switzerland breached article 8 by failing to assist a person, who wished to die but was not suffering from a terminal illness, to end her life.
Read MoreSalakhov and Islyamova v Ukraine [2013] ECHR, Application No. 28005/08
The European Court of Human Rights has reaffirmed the principle of international human rights law that prisoners should not be subjected to hardship or constraint other than that which necessarily results from their deprivation of liberty. Prisoners must be treated with humanity and dignity, and their detention should not prevent them from accessing health care in conditions comparable to those enjoyed by patients in the outside community.
Read MoreCN v United Kingdom [2012] ECHR 1911 (13 November 2012)
The European Court of Human Rights found against the Government of the United Kingdom where authorities failed to adequately investigate allegations of forced domestic servitude because at the time of the offence there was a lacuna in the law.
Read MoreDavies v State of Victoria [2012] VSC 343 (15 August 2012)
In a landmark decision, Justice Williams of the Supreme Court found that the conduct of a disability support worker in dragging a person with an intellectual disability across a carpeted hallway such as to cause a burn or abrasion constituted “cruel, inhuman or degrading treatment” contrary to section 10(b) of the Charter of Human Rights and Responsibilities.
Read MoreNoone, Director of Consumer Affairs Victoria v Operation Smile (Australia) Inc & Ors [2012] VSCA 91 (11 May 2012)
The Court of Appeal has found that operators of a complementary medicine centre specialising in treatment of cancer engaged in misleading or deceptive conduct in trade or commerce in making representations about the efficacy of their treatments. In so doing, the Court overturned a Supreme Court decision. In the decision, the Court considers the relationship between freedom of expression, as protected in the Victorian Charter, and misleading and deceptive conduct.
Read MoreDe Almeida, R (on the application of) v Royal Borough of Kensington and Chelsea [2012] EWHC 1082 (Admin) (27 April 2012)
The England and Wales High Court decided that the decision of the Royal Borough of Kensington and Chelsea to deny a terminally ill Portuguese man care and assistance, and to deport him, was a breach of his right to freedom from ill-treatment and his right to respect for his private life protected by articles 3 and 8 of the European Convention of Human Rights.
Read MoreMinister of Correctional Services v Lee (316/11) [2012] ZASCA 23 (23 March 2012)
In this case the Supreme Court of Appeal in South Africa ruled that while prison authorities failed to take reasonable measures to prevent the contraction of tuberculosis in custody, causation was not made out and therefore the State was not liable.
Read MoreZH v The Commissioner of Police for the Metropolis [2012] EWHC 604 (QB) (14 March 2012)
The England and Wales High Court has held that police who applied excessive force to a 16 year old autistic boy infringed several laws, including the European Convention on Human Rights. The Court found that the treatment of the boy by the police amounted to assault and battery, false imprisonment, unlawful disability discrimination, inhuman or degrading treatment, deprivation of liberty, and interference with private life.
Read MoreRabone & Anor v Pennine Care NHS Foundation Trust [2012] UKSC 2 (8 February 2012)
The United Kingdom Supreme Court has extended the obligations that the right to life places on the state by holding that a hospital breached its duty to protect a voluntary psychiatric patient from the risk of suicide.
Read MoreCheshire West and Chester Council v P [2011] EWHC 1330 (Fam) (9 November 2011)
The Court of Appeal has found that the care plan of a man lacking capacity under the Mental Capacity Act 2005 (UK) did not involve a deprivation of liberty within the meaning of article 5 of the ECHR. In so doing, it has usefully clarified the principles which should be taken into account when considering whether a person has been deprived of his or her liberty within the meaning of article 5.
Read MoreV.C. v Slovakia [2011] ECHR 1888 (8 November 2011)
In this case, the European Court of Human Rights held that the sterilisation of a woman, in circumstances where “consent” to the procedure was obtained during the late stages of her labour, violated her right to private life and the prohibition against torture and ill-treatment.
Read MoreL.C. v. Peru, UN Doc. CEDAW/C/50/D/22/2009 (4 November 2011)
S.H. & Others v Austria [2011] ECHR 1879 (3 November 2011)
The Grand Chamber of the European Court of Human Rights has found that Austrian legislation which prevents couples from conceiving a child with in vitro fertilization using donated ova or sperm does not breach the European Convention on Human Rights.
This decision reverses an earlier finding that Austria’s Artificial Procreation Act breached the applicants’ rights to private and family life (article 8) and non- discrimination (article 14) under the Convention.
Read MoreCanada (Attorney-General) v PHS Community Services Society, 2011 SCC 44 (30 September 2011)
The Supreme Court of Canada has held that the failure of the Minister of Health to grant an exemption to allow a safe injecting facility to operate notwithstanding federal anti-drug laws violated the right to life, liberty and security of the person under the Canadian Charter of Rights and Freedoms. This was because the evidence clearly demonstrated that the safe injecting facility was effective in saving lives and reducing drug-related harm.
Read MoreL.N.P. v Argentine Republic, Comm. No. 1610/2007, UN Doc. CCPR/C/102/D/1610/2007 (2011)
The Human Rights Committee found that Argentina’s treatment of a 15 year-old rape survivor violated articles 2(3), 3, 7, 14(1), 17, 24 and 26 of the International Covenant of Civil and Political Rights.
Read MoreAlyne da Silva Pimentel Teixeira (deceased) v Brazil, CEDAW, UN Doc CEDAW/C/49/D/17/2008 (2011)
The UN Committee on the Elimination of Discrimination against Women has found that Brazil’s failure to prevent the avoidable maternal death of Alyne da Silva, a 28-year-old Brazilian woman of African descent, violated articles 2 and 12 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), in conjunction with article 1. The Committee’s landmark decision is the first maternal mortality case decided by a UN treaty body.
Read MoreP J B v Melbourne Health & Anor (Patrick’s case) [2011] VSC 327 (19 July 2011)
In this case, the Supreme Court of Victoria held that the Victorian Civil and Administrative Tribunal had both failed to interpret law consistently with human rights and had itself failed to act compatibly with human rights in appointing an administrator to sell the home of a man with disability against his wishes.
Read MoreR (on the application of McDonald) v Royal Borough of Kensington and Chelsea [2011] UKSC 33 (6 July 2011)
The UK Supreme Court has held that the failure to provide an elderly woman with night-time care assistance to help her use the toilet, and instead requiring she use incontinence pads and special sheets (even though she is not incontinent), does not breach the right to privacy in article 8 of the European Convention on Human Rights.
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Psychology Board of Australia v Ildiri (Occupational and Business Regulation) [2011] VCAT 1036 (14 June 2011)
The Victorian Civil and Administrative Tribunal (VCAT) has held that deregistering a practitioner for unprofessional conduct under the Health Professions Registration Act 2005 (Vic) is not punishment and therefore does not infringe the right to freedom from double punishment under s 26 of the Victorian Charter.
Read MoreAbortion Supervisory Committee v Right to Life New Zealand Inc [2011] NZCA 246 (1 June 2011)
On 1 June 2011 the New Zealand Court of Appeal handed down its decision in the appeal and cross-appeal from the judgment of Justice Miller in the High Court’s 2008 decision in Right to Life New Zealand Inc v Abortion Supervisory Committee [2008] 2 NZLR 825 on the rights of the unborn child and the powers of the Abortion Supervisory Committee (ASC) under the Contraception, Sterilisation and Abortion Act 1977 (CSA Act). The majority (2:1) upheld Justice Miller’s finding that an unborn child has no express right to life, but held that his view that there was nevertheless “reason to doubt the lawfulness of many abortions” was inappropriate and had no legal effect. The majority also rejected Justice Miller’s finding that the ASC’s general supervisory role included a statutory obligation to audit the decisions of certifying consultants on the lawfulness of abortions in individual cases.
Read MoreR.R. v Poland [2011] ECHR 828 (26 May 2011)
In this case the European Court of Human Rights (ECHR) delivered judgment in favour of an applicant, Ms R.R., who brought a case againstPoland for a violation of arts 3 and 8 of the European Convention of Human Rights. Article 3 of the Convention protects the right to freedom from inhuman and degrading treatment. Article 8 of the Convention, inter alia, protects an individual’s right to respect for privacy and family life. This case is a significant step forward in the protection of reproductive rights, with third-party comments submitted by the United Nations Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, the International Federation of Gynaecology and Obstetrics, and the International Reproductive and Sexual Health Law Programme, University of Toronto, Canada.
Read MoreBrown v Plata, 563 US 2011 (23 May 2011)
On 23 May 2011 the Supreme Court of the United States upheld a lower court's decision finding that the conditions in California's overcrowded prisons violated prisoners' Eighth Amendment right not be subjected to cruel and unusual punishment. As a result of the overcrowding, adequate medical care could not be provided to prisoners. The Court reaffirmed US authority that denial of basic sustenance, including adequate medical care, violates the Eighth Amendment. What is perhaps more notable is the remedy it upheld, a cap on the prison population. The Court could have ordered the State to provide adequate medical care in its prisons, and accepted the State's plans for achieving that result. The Court instead found that only if the prison population decreased would it be possible for adequate medical care to be provided.
Read MoreLMR v Argentina, UN Doc CCPR/C/101/D/1608/2007 (28 April 2011)
In May 2007, VDA, an Argentine national, submitted a communication to the UN Human Rights Committee on behalf of her daughter, LMR, who has a permanent mental impairment. The communication claimed violations by Argentina of a number of articles under the International Covenant on Civil and Political Rights, including the right to freedom from torture or other cruel, inhuman or degrading treatment, and the right to privacy, arising out of a denial of access to legal abortion.
Read MoreNoone, Director of Consumer Affairs Victoria v Operation Smile (Australia) & Ors (No 2) [2011] VSC 153 (19 April 2011)
The case involved an application brought by the Director of Consumer Affairs Victoria against the Hope Clinic. The application sought to prevent the continuation of representations made by the Hope Clinic as to the benefits of its therapies for sufferers of, amongst other illnesses, cancer. In particular, the plaintiff alleged that the representations contravened section 9 of the Fair Trading Act.
Read MoreCondliff, R (On the Application Of) v North Staffordshire Primary Care Trust [2011] EWHC B8 (Admin) (7 April 2011)
The High Court of England and Wales has held that a public health authority did not breach a patient’s right to a private and family life by excluding consideration of non-clinical social factors in deciding not to fund surgery for that patient.
Read MoreKupczak v Poland [2011] ECHR 127 (25 January 2011)
Mr Edward Kupczak (the ‘applicant’) was held in detention in Poland awaiting trial for offences related to organised crime. The Applicant was severely disabled in a car accident six years prior to his detention, and suffered severe pain daily. He had been living with a morphine pump installed in his body to help manage his pain. His pump failed shortly after he was detained. The Applicant remained in detention despite making appeals for two and a half years. The Applicant was released from pre-trial detention in 2008 and was then able to have the morphine pump replaced.
The European Court of Human Rights found that through his detention, his lack of access to appropriate pain relief, and the Polish courts’ failure to acknowledge the break-down of his morphine pump, the Applicant had been subjected to inhuman and degrading treatment in violation of Article 3 of the European Convention on Human Rights ( ‘ECHR’).
Read MoreMcDonald, R (on the application of) v Royal Borough of Kensington & Chelsea [2010] EWCA Civ 1109 (13 October 2010)
The England and Wales Court of Appeal has held that the failure to provide an elderly individual with disability with a carer to assist her to use a commode during the night, and instead requiring that the individual use incontinence pads and special sheets (in circumstances where the individual was not incontinent), did not breach the right to privacy in art 8 of the European Convention on Human Rights.
Read MoreCastles v Secretary to the Department of Justice [2010] VSC 310 (9 July 2010)
On 9 July 2010, the Supreme Court of Victoria found that the plaintiff, Kimberley Castles, is entitled under s 47(1)(f) of the Corrections Act 1986 to undergo IVF treatment. The finding overturns a decision by the Secretary of the Department of Justice to deny Ms Castles access to IVF treatment and means that Ms Castles will be eligible for permits to leave prison on a visit-by-visit basis.
Read MoreCastles v Secretary to the Department of Justice [2010] VSC 310 (9 July 2010)
On 9 July 2010, the Supreme Court of Victoria found that the plaintiff, Kimberley Castles, is entitled under s 47(1)(f) of the Corrections Act 1986 to undergo IVF treatment. The finding overturns a decision by the Secretary of the Department of Justice to deny Ms Castles access to IVF treatment and means that Ms Castles will be eligible for permits to leave prison on a visit-by-visit basis.
Read MoreLaxmi Mandal v Deen Dayal Harinagar Hospital & Ors [2010] 8853/2008 and Jaitun v Janpura Maternity Home & Ors [2010] 10700/2009 (High Court of Delhi, 4 June 2010)
The High Court of Delhi has issued directions in response to the systemic failures resulting in the denial of benefits to two mothers below the poverty line (BPL) during their pregnancy and immediately after, in violation of the right to life contained in art 21 of the Constitution of India and international human rights obligations incorporated by the Protection of Human Rights Act 1993.
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Castles v Secretary of the Department of Justice & Ors [2010] VSC 181 (4 May 2010)
The Supreme Court of Victoria has rejected an application by a female prisoner for an injunction restraining the Secretary of the Department of Justice from refusing to grant the permits and approvals necessary to access IVF treatment, contrary to the Victorian Charter of Rights. The Court did, however, order that the matter be expedited and brought on for speedy trial within a month given the urgency of the issues.
Read MoreHumberstone, R (on the application of) v Legal Services Commission [2010] EWHC 760 (Admin) (13 April 2010)
Article 2 of the European Convention of Human Rights provides that the right to life is a fundamental human right that shall be protected by law.
Read MorePHS Community Services Society v Canada (Attorney General), 2010 BCCA 15 (15 January 2010)
The British Columbia Court of Appeal has held that the denial of access to health care services, including safe injecting facilities, for people with severe drug dependency may violate the rights to life, liberty and security of person
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