August 2018 – Persons from Abroad and medical Needs

03/08/2018

There have been two important cases examining Article 3 rights and the right to treatment – specifically the need for a transplant.

In the first case, Mr Paposhvili, a Georgian national, had leukaemia and was kept stable by an expensive drug (without which he would likely die within six months) and needed a donor transplant. The Court considered the previous leading case in this area (N v Secretary of State for the Home Department 2005) and found that there had been a breach of Article 3 on the grounds that the removal of a seriously ill person who although not at imminent risk of dying, would face a real risk (on account of the absence of appropriate treatment in the receiving country or a lack of access to such treatment) of being exposed to a serious, rapid and irreversible decline in his state of health resulting in intense suffering or to a significant reduction in life expectancy. The Court of Appeal then interpreted a significant reduction in life expectancy to mean a real risk of death within a short time in the receiving state.

In the second case, A was a Ghanaian national suffered from end stage kidney disease and needed a transplant. The NHS Transplant Directions divided those on the waiting list for a donor into two groups – those ordinarily resident in the UK and all others. The Directions stated that no person in group 2 (those not ordinarily resident in the UK) shall receive an organ transplant if there is an eligible person able to receive it from group 1.

A was in the UK unlawfully and was therefore placed in group 2. He sought to challenge the lawfulness of the Directions. The Court dismissed the application on the grounds that the health secretary only has a target duty to promote a comprehensive health service for those with a legitimate connection with the country. Nor did the court accept that a common law right to life covered a right to medical treatment to save life.

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