IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
The Royal Courts of Justice
LONDON WC2A 2LL
B e f o r e :
(sitting as a deputy High Court Judge)
THE QUEEN on the application of ROBERT H Claimant and ASHWORTH HOSPITAL AUTHORITY Defendant
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
John Howell QC and Oliver Thorold, instructed by Messrs Reid Minty, 14 Grosvenor Street, London W1K 4PS, appeared on behalf of the Defendant
AS APPROVED BY THE COURT
Crown Copyright ©
The admission criteria at Ashworth Hospital
The high levels of care and observation at Ashworth Hospital can only be justified when the highest levels of security are required, and a lesser degree of security would not provide a reasonable safeguard to the public. It is an unacceptable infringement of a patient’s civil rights to detain them in a higher level of security than they require. The special security available within Ashworth Hospital is of such a kind and degree to detail patients who, if at large, would present a grave danger to the public and who could not be safely contained within the security available at a regional secure unit.
Factors the Admission Panel Consider
In considering what represents grave danger requiring conditions of special security, one or more of the following factors, in addition to mental disorder, must be present before admission to Ashworth Hospital can be contemplated.a. Serious unprovoked or random assaults on members of the public.b. Serious sexual assaults on members of the public.c. Aggressive feelings towards a particular person which, in the absence of that person, may be replaced by serious violence to others (displaced aggression).d. Psychotic symptoms involving specific people which could lead to violent acts against them.e. Arson.f. The use of poison or drugs to cause harm to others.g. Persistent, scheming, determined absconding.
...h. Sadistic behaviour.i. Use of firearms, knives, explosive devices, missiles and other weapons.j. Hostage taking.
This list is not meant to be exhaustive, nor should it be used simply as a checklist. Each case is considered on its own merits, taking full account of patterns of behaviour including escalation of dangerousness and such clinical factors as the presence of sadistic sexual fantasies with an inclination to act on them.”
The Patients’ Relationships Policy
“1. AIM AND OBJECTIVES
1.1 Patients are admitted to Ashworth Hospital to be treated for mental disorder in conditions of high security as they are considered to present a grave and immediate risk to others. The Hospital has certain statutory functions and implied responsibilities, and it is necessary to have the Patients’ Relationship Policy as set out below.
1.2 This policy provides for the management of relationships between patients and between patients and visitors in Ashworth Hospital. It aims to:(i) Clarify what behaviour is defined as acceptable and unacceptable within relationships between patients and between patients and visitors.(ii) Provide a framework of procedures to manage relationships and their consequences.(iii) Provide a framework of accountability and clinical practice which ensures that direct care staff are supported in working to the hospital policy.(iv) Apply the Policy consistently across the Hospital.
2. DEFINITION AND SCOPE
2.1 The relationships addressed by this policy are defined as attachments between two persons of the same or opposite gender that may or may not include the following qualities: feelings of love, specialness, caring, exclusivity, romance, sexual attraction, secretiveness. These qualities may be unevenly shared between the two parties. This policy is intended to address issues which may result from relationships between patients and between patients and visitors.
3.1 Forming relationships is a normal human activity. The importance of relationships must be recognised.
3.2 By the nature of the policies and procedures that are necessary the hospital environment imposes restrictions on individual patient’s privacy, on the time that the patients may spend together and the availability of appropriate partners.
3.3 Patients come to the hospital with a range of disorders and problems related to their mental health. Some patients have histories of offences or behaviours involving sexual and/or physical violence, abuse, exploitation, intimidation. There are also patients who have been the victims of such violence, abuse, exploitation, intimidation and continue to be vulnerable.
3.4 Previous experience within Ashworth Hospital has demonstrated the adverse consequences of sexual relationships between patients and the risks associated with sexual relationships.
3.5 The hospital will operate a no sex policy.
3.6 This policy also promotes an environment which aids in the prevention of the transmission of blood borne viruses.
3.7 In order to manage relationships it is essential that the issues raised by intimate relationships and the sexual feelings of patients are not avoided but openly and sensibly addressed so that patients and staff must be consistent in their approach to relationships and must be made aware of the dangers of inappropriately expressing moral or ethical opinions or beliefs towards patients which are inconsistent with hospital policy.
3.8 Staff who work closely with a patients and particularly those in the clinical team of a patient, will take responsibility for any information given to them of a developing relationship and subject it to full assessment. Plans for the management of the relationship should be clearly documented in the care and treatment plan. The clinical team for each individual must ensure that each patient understands as fully as possible the boundaries for their behaviour in the relationship. Staff will have access to relevant and effective supervision for this aspect of their work.
4. SPECIAL CONSIDERATIONS OF SECURITY AND RISK MANAGEMENT WITH HIGH SECURE HOSPITALS
4.1 Ashworth has had experience of the serious consequences of inconsistent policies and policies that have been inconsistently applied. Previous enquiries have highlighted this and recommended particular stringency around the application of policies. Recent enquiries have also been followed by the issuing of Security Directions which have described in detail policies relating to the searching of patients, the searching of their possessions, the management of those possessions, the searching of rooms and have led to rigorous controls around patients’ possessions whilst in Hospital.
4.2 The Relationships policy must take into account the existing Security Policies and the paramount importance of consistency in the application of policies within the high secure setting.
4.3 There is an acknowledged risk that unacceptable sexual activity may occur between patients whilst they are within the Hospital. This Policy manages, but cannot remove that risk. The management of the risk involves proper supervision, detailed care planning and the outcomes of other policies that have been introduced for reasons related to the general care and treatment and security of patients, staff and public. It is the responsibility of all staff to ensure that there is no breach of this Policy.
4.4 In institutions such as prisons, condoms have been issued to manage the health risk of high risk sexual behaviours. Condoms are considered within the high secure hospital to represent a security risk in relation to secretion of prohibited items, and the possibility of their use in harm to self and others. They are therefore not allowed in the possession of patients. If found they would be removed on the basis of the risk to security. The presence of a condom if found during a routine search procedure or checking of possessions would lead to the consideration of their being a risk to security or a risk that high risk sexual behaviour was occurring. Staff are expected to respond appropriately within the Security Policies and the Relationships Policy.
4.5 Condoms are not issued. Their issuing would place those staff involved in a position where they were not able to follow policies consistently and would place serious tensions and possibly compromise multi-disciplinary working arrangements with the Hospital.
5. REVIEW MECHANISMS
5.1 In the event of a dispute between clinicians or between the patient and clinician in relation to decisions under this policy those concerned at any time may seek a review of such a decision by the Medical Director or his/her deputy. That will take into account any representation by the patient and any member of staff and make a decision having regard to all of the circumstances and the application of the policy.
6. BEHAVIOUR DEFINED AS ACCEPTABLE AND UNACCEPTABLE
6.1 The policies and procedures of the hospital dictate that patients are not allowed to be with other patients in ward and rehabilitation areas unless under observation by staff. The patients must be encouraged to behave in a way that reflects this. Physical contact such as hugging and kissing may be acceptable in certain circumstances whereas intimate contact with others including sexual intercourse is not acceptable. Open mouth kissing is not acceptable.
6.2 For an individual masturbation is viewed as a normal outlet for sexual feelings provided it is discreetly conducted in the relative privacy of the patient’s own room. In any other context, it would be viewed as unacceptable.
6.3 Expectations of acceptable conduct apply to contact between people of the same or different genders.
6.4 Hospital policies and procedures allow that patients granted grounds access may meet other patients within the secure area with a lower level of staff observation. However the policy continues to apply to them. It is expected that patients will not be granted grounds access where a risk assessment raises significant concerns that they may engage in unacceptable relationships when unobserved. (See Grounds Access Policy.)”
The claimant’s evidence
“Double anti-viral therapy has currently been recommended for certain categories of hepatitis C carriers by the NICE Committee and it is possible that Mr H may be eligible for this in the future, pending [the] result of further investigations. In the meantime he continues to carry the virus and will undoubtedly be an infection risk to others should he share needles, any injecting paraphernalia, razors, toothbrushes and perhaps even sharp implements such as nail scissors which might draw blood. The risk of transmission of hepatitis C to others by other casual contact is effectively nil. There is a small risk of transmission by sexual activity, although this is difficult to quantitate. In the past it was thought that up to 5% of long-term spouses of hepatitis C positive males acquired hepatitis C from their partners sexually over a period of many years. Even this relatively small risk is now believed to be lower than 5%, as these early studies did not rule out other means of hepatitis C transmission in the household. Similar methodological constraints apply to published studies of the hepatitis C risks in anally receptive male homosexuals, in whom the risk of being hepatitis C positive may be up to twice that of homosexuals who do not have anal intercourse. Current thinking remains imprecise and suggests that there is a small long-term risk from receptive anal sex, and which reduces sequentially for anal penetrative sex, oral receptive sex, oral penetrative sex and mutual masturbation. In the latter category the risk is probably minimal. It is presumed that any risk is reduced by the use of condoms.”
The defendant’s evidence
— The defendant’s view of the claimant’s statements
— The patients at Ashworth
— The no-sex policy
“24 If sexual activity were permitted for individual patients, which it is not, assessing the risk of allowing individual patients to engage in sexual activity would be incredibly complex. Relationships between “normal” people are sufficiently complex. Within “normal” relationships feelings of betrayal and loss are common and one person in a “normal” relationship may be dominant.
25 If one considers how such feeling in relationships would impact on patients who are mentally ill, mentally impaired, personality disordered or psychopathic then one has some idea of the immense task that the staff would be presented with. For example, patient X’s care team might be quite willing to let him enter a relationship but what if patient Y, whom X is interested in, is completely unsuitable? What if two patients wanted an approved relationship with the same patient? There are so many concerns that the entire situation would be completely unworkable.
26 We already have concerns about physical and emotional reaction by patients who have been emotionally hurt. I believe that this would be made worse if sexual relationships were allowed to develop. It is for these reasons that no sexual activity whatsoever is allowed under the Hospital’s Policy pursuant to that that no condoms are permitted. For each type of risk the Hospital has to consider the level of intervention and environmental control it should introduce. In so doing the Hospital has to consider the individual patient’s care and treatment in detail.
27 The Hospital has to balance the individual needs for patients’ treatment plan with security risks. A patient might require more time associated with his or her fears without obtrusive observation for treatment purposes. Though the Hospital also needs to protect the patients both from themselves and others. This applies equally to violent episodes, as it does to sexual activity be it either as the perpetrator or victim.
28 This type of behaviour occurs, be it sexual or violent, it is not accepted by the Hospital and each such occurrence, however rare, should lead to review of that patient’s risk management plan. In order to highlight my concerns regarding the potential for exploitative relationships I would draw the court’s attention by analogy to the Possessions’ Policy. This deals with what might be seen as non-sexual relationships but the Hospital is still concerned about the abusive relationships between patients developing the selling, buying and passing of goods. The Possessions’ Policy can be found in the exhibit DJ3.
29 There is a general clinical concern for all mental health service providers, which is not just a special hospital issue. There is now an increased sensitivity and awareness across all mental health service providers, from the least secure to the special hospital, about the potential for sexual abuse, as well as an increased awareness of the sexual vulnerability of patients with mental health problems. These concerns are not as important for prisons by their very nature.”
“In practice a situation where some patients are, and some patients are not, allowed to have sex is fraught with danger to the patients as the hospital has found. It is also very difficult for staff and impossible to manage. I am certain that any policy allowing some patients to engage in sexual activity but not others would constantly subject to challenge and abuse and would be impossible to manage satisfactorily.”
“One difficulty for staff at that time and now is that patients can exert considerable pressure upon each other. Deciding whether a relationship involves the consent of both the individuals involved will in many circumstances be impossible in practice. The situation is further complicated by the connection of such a relationship with other clinical issues regarding the treatment of individual patients. It should be remembered that a high proportion of the patients had been involved in abusive relationships either as the perpetrator of abuse or as the victim.”
— The no-condoms policy
“4. It should be borne in mind that Ashworth is a high security mental hospital and we are charged with the care of the most dangerous patients in the country. In order that patients can be cared for in the most safe and secure way it is vital to have clear, unambiguous policies which staff can understand and apply uniformally. It is therefore important that in addition to all the clinical arguments surrounding the issues on this case there should be one rule for all the patients. In relation to the Patients’ Relationship Policy these concerns led to the prohibition on sexual activity and the decision that condoms should not be made available.
5. If any alternate arrangements were made, in which condoms were made available to patients, this would place the Hospital management and the individual staff in a very difficult position. This is because of all the reasons set out in Dr James’ statement, which would lead to inconsistencies in patients gaining access to condoms, the ability of patients to use the condoms and the Hospital’s ability, or lack of ability, to effectively monitor whatever system is introduced making condoms available, whilst maintaining the prohibition on sexual activity.”
— The security arrangements at the hospital
“Whilst it is conceivable that unsupervised access by one patient to another’s bedroom may occur this is a very rare occurrence. The prevention of such access is a high priority for the nursing staff. The corridors are under constant supervision by two staff who can see all the bedroom doors and regular checks are made on the occupants. Thus, while patients may attempt to engage in sexual activity or violence, the policies are designed to ensure immediate staff intervention to stop it.”
“it very difficult to believe that any patient, either homosexual or heterosexual, could participate in the sexual activities the claimant alleges, if at all. Whilst I accept that patients can and do attempt to engage in sexual activity on occasion they are prevented from doing so by staff vigilance. Indeed whenever two patients meet they are subject to general observations at the very least.”
— The risk of transmissible disease
“Human Immunodeficiency Virus (HIV), Hepatitis B (HBV) and Hepatitis C (HCV) are all blood borne viruses. This means that they can be transmitted by blood transfusion or via blood contaminated (dirty) needles or by direct inoculation of blood as a non-accidental injury (violence eg deliberate bite). The other mode of transmission is via sexual intercourse, these viruses are also present in semen and saliva, (DOH 2000).
Although HIV has been isolated in tears, urine, cerebrospinal, synovial and amniotic fluids these have not been implicated in the transmission of infection. Neither is HIV spread by close social contact with infected people.
The outcome of infection depends on the particular virus: in the case of HIV progression to AIDS-Acquired Immune Deficiency Syndrome is likely. Hepatitis B and C infections may clear up completely (resolution) or lead to a chronic carrier state with possible progression to cirrhosis of the liver.
Prevention of the transmission of blood borne viruses is achieved by using sterile needles and syringes and avoiding unsafe sexual practices.
Research indicates that the prevalence of infection is increased in drug misusers and residents of long term institutions, and that certain occupational groups have a higher risk of infection, (Rowland 1990), (Van Damme et al 1995) and DOH 1996. Hepatitis B is a preventable disease and the Department of Health recommends that staff should be vaccinated, this Hospital encourages both staff and patients to be immunised against Hepatitis B, (HSC 1998/063).”
“5. Key Points to Minimise Infection
(i) In this hospital all patients potentially present a risk of infection. Therefore, consider all blood and body fluids to be possibly infectious.
Take your time.
Avoid spillages of blood or body fluids.
(ii) Effective hand washing is the single most important factor in preventing infection. Use the soap provided, wash all areas of the hands, rinse thoroughly and dry with paper towels.
Cover cuts and abrasions with waterproof dressings.
(iii) Exercise great care with all sharps to prevent puncture wounds, cuts or abrasions.
Protect existing wounds, skin rashes or lesions, conjunctivae and mucosal surfaces from all blood and body fluids.
When the use of sharps is essential, exercise particular care in handling and disposal of same.
Only use approved sharps containers.
Never put needles or other sharps into clinical or household waste bags.
Never resheath needles.
(iv) Control surface contamination by blood or body fluids by containment and disinfection.
6. Occupational Risk
The risk of transmission of blood borne viruses is greater from patient to health care worker than from health care worker to patient.
Occupational risks of transmission of blood borne viruses arise from the possible exposure to blood or other body fluids or tissues contaminated with blood from an infected patient. Semen and breast milk may pose a risk of infection but exposure to these body fluids is rare in most health care settings.
Many exposures result from a failure to follow Infection Control guidelines regarding the safe handling and disposal of sharps. Even when infection control guidelines and safe working practices are adopted there is still the possibility of accidents and malicious acts resulting in exposure to blood borne viruses.
Most cases of occupationally acquired HIV infection have arisen from percutaneous exposure to HIV infected materials, and of these the majority have followed injury from hollow needles in association with a needle or canula being placed in a vein, eg venepuncture, others have arisen through exposure of mucous membranes or non intact skin to blood.
Transmission of blood borne viruses may result from contamination of mucous membranes of the eyes or mouth, or of broken skin, with infected blood or other infectious material, and by human bites if the skin is broken.
There is no evidence of blood borne viruses being transmitted by contamination of intact skin, by inhalation or by faecal – oral contamination.Please Note: Not all patients with blood borne viruses have had their infections diagnosed. Therefore it is important that all blood and body fluids and tissues are regarded as potentially infectious, and health care workers should follow Universal precautions scrupulously and in all circumstances to avoid contact with them.”
“The risk of acquiring HIV infection following a needle stick injury or a bite is small. Although HIV transmission may occur in health care settings most transmission occurs:-
- by unprotected penetrative sexual intercourse with an infected person (between men or between man and woman).
- by inoculation of infected blood. At present in the UK this results mainly from drug misusers sharing blood contaminated injecting equipment.
- from an infected mother to her baby before or during birth or through breast feeding.
There is no vaccine to prevent HIV.”
“8. Hepatitis B Virus (HBV)
Hepatitis means inflammation of the liver. Viruses are the commonest cause but drugs and alcohol can also disturb the bodies immune system. Since the 1960s many hepatitis viruses have been identified and all cause similar acute illness but the differences are in long term effect.
World wide hepatitis B virus is the most common cause of liver disease and more than 2 million people die from it each year.
Hepatitis B is transmitted in the same way as HIV but it is far more infectious. Hepatitis B infection can vary from having no noticeable symptoms to mild flu like symptoms, nausea, vomiting, fever, jaundice, hepatic failure, coma and death within 8 weeks. Hepatitis B virus may be found in blood and virtually all body fluids of patients with Hepatitis B and carriers of the virus, but blood, semen and vaginal fluids are the source of spread of HBV infection. Transmission usually occurs by:-
- unprotected sexual intercourse.
- injecting drug misusers sharing contaminated injecting equipment.
- from an infected mother to her baby before or during birth or through breast feeding.
The most important measures that health care workers can take is to be vaccinated against HBV.
9. Hepatitis C Virus (HCV)
Hepatitis C is an unusual hepatitis virus as 90% of infected people do not show any symptoms when first infected. About 10% of infected people will develop acute jaundice and others will develop cirrhosis between 20 and 40 years after the initial infection. A small proportion of these people will eventually develop liver cancer.
HCV is most frequently acquired by direct blood to blood contact, and the commonest mode of transmission in the UK is by sharing of blood contaminated injecting equipment by injecting drug misusers. Both sexual and perinatal transmission can occur though rarely.
There is no vaccine for Hepatitis C virus.”
“13. It is my view that condoms do provide a good protection from the risk of contraction of infections such as the viruses that I have mentioned above and ordinarily I would prescribe their use. However the conditions of the patients’ detention in Ashworth mean that the situation is far more complex and other therapeutic and security issues have to be considered.
14. I am aware and firmly believe from the statistics that I have that no patient has contracted hepatitis B or C or HIV from another patient since I began in my position in 1994. Furthermore I am aware that the levels of infection within the Hospital are markedly lower than the levels of infection in prisons.
15. Given the differences and the conditions of the detention, the accommodation of the patients, the level of observation, I believe that the risk of sexual activity taking place contrary to hospital policy is minimal. Indeed, in light of the statistics that we have I can also say that the risk of infection as a result of any activities is close to nil. However I would point out the risk of infection cannot be ruled out altogether because we have infected patients who are detained because of mental disorders, therefore their actions can be both violent and unpredictable. Infection could technically occur through a number of sources. I believe that the risk of infection through sexual activities is one of the lowest risk causes within what is already a very low risk environment in comparison to prisons.”
— Broadmoor and Rampton
14.1.1 Intimate contact and sexual intercourse between patients or between patients and other persons is prohibited (Section 10.2.1) and the Authority will expect staff to take all reasonable steps to prevent this taking place. However, since it is still possible that some patients may engage in sexual intercourse, condoms, the most practical protection against HIV and other sexually transmitted diseases, will be made available to patients along with sex and health education programmes.
14.2.1 Under Hospital Policy, sexual intercourse is prohibited (see Section 10.2.1). However, it is recognised that there is potential for situations to arise where sexual intercourse could take place covertly, and as a result, patients may be putting their health or the health of others at risk. Under these circumstances the Hospital still has a responsibility for patients health.
14.2.2 Safe sex is an issue in both homosexual and heterosexual relationships.
14.2.1 The Hospital will ensure that safe sex education is available to all patients within the context of health education programmes.
14.3.2 Condoms will be made anonymously available to patients in the patients’ shop.
14.3.3 Where staff discover patients engaged in sexual intercourse (or other inappropriate sexual activity), the patients should be sensitively but firmly told to stop, and the matter reported to their MDT(s).
14.3.4 Multi-disciplinary teams must take into account the risks to the patients involved and, in particular, consider the risk to either patient of exploitation or abuse (see Section 15: “Exploitative and Abusive Relationships”) in deciding what course of action to follow.
14.2.6 Patients on escorted home visits should be observed at all times as still under the direct care of the Hospital.”
“Although the argument for distributing condoms are very sound – i.e. health and safety and reduction of corporate risk, we still have not yet progressed to actually distributing condoms to patients.” The principal difficulties identified by Mr Hodge are how to find an appropriate means of distributing condoms, i.e. on prescription, on the wards, through some kind of vending machine, or in the patients’ shop, and the need to ensure that patients both understand the need for condoms and are able to use them. He states that he is not able to give any indications as to whether the hospital will be providing condoms in the future.”
Mr Hodge concludes “The Hospital Authority Board has accepted the arguments that they should be provided, but, as I am sure you are aware, there are many concerns about actually providing these condoms.”
“It is essential that patient relationships are recognised by carers in the hospital. Sexual activity between patients is not condoned, however it is necessary to acknowledge that it sometimes takes place.”
Paragraph 1.4 states
“In accepting the above statement, the protection of individual patient becomes the priority, therefore:
“1.4.1 The HMT acknowledges the risks and confirms its intention to eliminate large dormitories. HMT is aware that opportunities exist for exploitation and coercion of the vulnerable patients. In all future physical design of accommodation this must be taken into account.
1.4.2 Clinical Teams must be clear about their responsibilities and be open to audit on their practice in the matter of addressing patient relationships. Responsibility for sharing information about relationships lies with all those who are in contact with patients.
1.4.3 Education and awareness training regarding patient relationships and their consequences must be made available to staff and patients where needed.
1.4.4 Condoms must be made available to patients”.
“3.1 Sexual activity between patients is not condoned, however part of the duty of care is to provide Safer Sex education for patients. Education can be done fully when provision is made of the means to reduce the risk of spread of sexually transmitted diseases, i.e. condoms.
3.2 Condoms will be available on prescription from the Consultant Psychiatrists or from the Pharmacy. A varied range of condoms will be available including extra strong together with water based lubricating jelly. Sex between women is not thought to present the same degree of risk of HIV transmission. There are some uncertainties about the risk of mouth to vagina oral sex. It may carry risk of infection particularly during or just after a woman’s period. For this reason dental dams will be made available to patients. Education in their use will be given in the awareness sessions described below.
3.3 Patients will be encouraged to requisition from the Pharmacy, rather than asking their visitors to bring them in. This will not remove the right of the patient to request free condoms from their Consultant Psychiatrist. The patient will retain the right to requisition from the Pharmacy even if the Consultant Psychiatrist refuses to prescribe to that individual.”
“4.2 Issues of ProtectionVery few risks can be eliminated completely, most have to be managed.There are likely to be occasions when, in spite of good observation, assessment, planning and subsequent management patients manage to push the boundaries to full sexual intercourse. This may happen between couples of the same or opposite sex. It may happen in long term relationships or after the briefest of meetings.Pregnancy is an additional concern where heterosexual intercourse is a risk. It would be advisable for the clinical teams of both patients to consider with the patients concerned the risks of conception and the various risks and problems in having a child in the circumstances, not least the risks to the individual patients themselves. It may also be advisable for the clinical team for each patient to offer contraceptive advice.If either patient requests contraceptive assistance, and if there is no medical indication to the contrary, it may be wise to make this available, in conjunction with further advice, tailored for the individuals concerned on acceptable limits for their behaviour. In any event the reasons for not providing assistance in these circumstances should be clearly documented.If it is thought that, in spite of adequate staffing levels and capacity of observation, that the woman may take part in intercourse, for whatever reason, it is essential to ensure that she is in receipt of contraceptive protection in a form most medically appropriate for her as an individual.”
“Health Promotion – Aids/HIV awareness and safe sex policy
1. Intimate contact and sexual intercourse between patients (or between a patient and another person) is prohibited ... and the Authority expects all staff to take reasonable steps to ensure it does not take place. However, it is recognised that there is a potential for a situation to occur where it could take place covertly. As a result patients may put their health or the health of others at risk of contracting a sexually transmitted disease e.g. HIV/Aids. Under these circumstances the hospital has a duty of care and a responsibility for patients’ health. Procedure to therefore:(a) That the hospital ensure that safe sex education is available for all patients within the context of the Health Education Programmes and(b) Condoms will continue to be available to patients through their consultants (on prescription) or by requisition from the pharmacy.”
Arguments of the parties
“Everyone’s right to life shall be protected by law.”
Article 8 provides that
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
The claimant as a victim
Article 2 of the Convention
— The jurisprudence of the European Court of Human Rights
“It has not been suggested that the respondent State intentionally sought to deprive the applicant of her life. The Court’s task is, therefore to determine whether, given the circumstances of the case, the State did all that could have been required of it to prevent the applicant’s life from being avoidably put at risk.”
“that the State could only have been required of its own motion to take these steps in relation to the applicant if it had appeared likely at that time that any such exposure of her father to radiation might have engendered a real risk to her health.”
“... It is thus accepted by those appearing before the Court that Article 2 of the Convention may also imply in certain well-defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual. The scope of this obligation is a matter of dispute between the parties.
116. For the Court, and bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. ...
In the opinion of the Court where there is an allegation that the authorities have violated their positive obligation to protect the right to life in the context of their above-mentioned duty to prevent and suppress offences against the person, it must be established to its satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of the powers which, judged reasonably, might have been expected to avoid that risk. ... For the Court, and having regard to the nature of the right protected by Article 2, a right fundamental in the scheme of the Convention, it is sufficient for an applicant to show that the authorities did not do all that could be reasonably expected of them to avoid a real and immediate risk to like of which they have or ought to have knowledge. This is a question which can only be answered in the light of all the circumstances of any particular case.”
“whether the authorities knew or ought to have known that Mark Keenan posed a real and immediate risk of suicide and, if so, whether they did all that reasonably could have been expected of them to prevent that risk.”
— A real and immediate threat to life?
— The likelihood of the relevant sexual activity actually occurring
— The risk of infection
— Conclusion as to “real and immediate” risk of infection
— Is the defendant doing “all that can reasonably be expected”?
Article 8 of the Convention
“Whether the question is analysed in terms of a positive duty on the State – to take reasonable and appropriate measures to secure the applicant’s rights under paragraph 1 of Article 8 –, as the applicant wishes in her case, or in terms of an “interference by a public authority” to be justified in accordance with paragraph 2, the applicable principles are broadly similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole, and in any case the State enjoys a certain margin of appreciation. Furthermore, even in relation to the positive obligations flowing from the first paragraph of Article 8, in striking the required balance the aims mentioned in the second paragraph may be of a certain relevance.”
“The Court recalls that it has not found it established that the police knew or ought to have known at the time that Paget-Lewis represented a real and immediate risk to the life of Ahmet Osman and that their response to the events as they unfolded was reasonable in the circumstances and not incompatible with the authorities’ duty under Article 2 of the Convention to safeguard the right to life. In the Court’s view, that conclusion equally supports a finding that there has been no breach of any positive obligation implied by Article 8 of the Convention to safeguard the second applicant’s physical integrity.”
“48. To date neither the other consultants nor I have been satisfied that any of the conditions presented by patients have merited a change in the Hospital policy that sexual activity be prohibited and condoms should not be made available.
49. If a patient, or staff member representing a patient, made a cogent case for departure from the Policy then that would be considered. There have been circumstances when the Hospital has departed from its policies in the past and we recognise, at the time of drafting any policy, that we cannot envisage every circumstance that may arise. It is for this very reason that our own Relationships policy has a review clause within it. However I would stress that we have still not been presented with a set of circumstances in which we have been persuaded that the need to review the policy has arisen.”
“5.1 In the event of a dispute between clinicians or between the patient and clinician in relation to decisions under this policy those concerned at any time may seek a review of such a decision by the Medical Director or his/her deputy. That will take into account any representation by the patient and any member of staff and make a decision having regard to all of the circumstances and the application of the policy.”
Although that provision refers to “decisions under this policy” I would not construe it as a legal document. Clause 5.1 would, I would have thought, give the Medical Director the possibility of examining the circumstances of an individual case.