Corney
JoinedPosts by Corney
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Senior Judge to Revisit Case-Law on Authorizing Medical Treatment Against Wishes of Mature Minor
by Corney inhttps://www.bailii.org/ew/cases/ewhc/fam/2020/3003.html.
nearly two weeks ago, sir james munby, a privy council member, formerly a law commission chairman, high court's family division president, and a lord justice of appeal, issued a short emergency order in a blood transfusion case closely resembling mcewan's the children act.. here are some excerpts:.
2. the case involves the deeply troubling question of whether a blood transfusion should be administered to a young woman who is almost, not quite, 16, against her profound religious beliefs.
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Senior Judge to Revisit Case-Law on Authorizing Medical Treatment Against Wishes of Mature Minor
by Corney inhttps://www.bailii.org/ew/cases/ewhc/fam/2020/3003.html.
nearly two weeks ago, sir james munby, a privy council member, formerly a law commission chairman, high court's family division president, and a lord justice of appeal, issued a short emergency order in a blood transfusion case closely resembling mcewan's the children act.. here are some excerpts:.
2. the case involves the deeply troubling question of whether a blood transfusion should be administered to a young woman who is almost, not quite, 16, against her profound religious beliefs.
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Corney
https://www.bailii.org/ew/cases/EWHC/Fam/2020/3003.html
Nearly two weeks ago, Sir James Munby, a Privy Council member, formerly a Law Commission Chairman, High Court's Family Division President, and a Lord Justice of Appeal, issued a short emergency order in a blood transfusion case closely resembling McEwan's The Children Act.
Here are some excerpts:
2. The case involves the deeply troubling question of whether a blood transfusion should be administered to a young woman who is almost, not quite, 16, against her profound religious beliefs. X is a Jehovah's Witness. She has explained to me, in very powerful and moving words, the basis of her belief and the fact that, recently, she was baptized in accordance with the teachings and the beliefs of her church.
3. These cases always involve enormous difficulty because there is an inevitable tension, at least on the law as it appears to be, between the duty of the court and the heartfelt wishes of the young person who, as in X's case, has what for shorthand I will call 'Gillick competence'. X is, if she will allow me to say so, mature and wise beyond her years ...
8. Mr [Shane] Brady's argument, which is powerful and demands much fuller response than I can give it today, is that to impose this form of treatment on X is to impinge impermissibly upon her autonomy as, I emphasise, a Gillick competent child of almost 16. He submits that the law has moved on, not merely in consequence of the Human Rights Act 1998, but in more general developments, so that the position which had seemingly been reached by the Court of Appeal ... in the early 1990s no longer reflects the law as it is. Those are powerful arguments which deserve full analysis and proper consideration. Unhappily, we do not have time for that today ...
10. It seems to me that I have, for the purposes of today, to approach this matter on the basis of the law as it currently appears to be. The law, put very shortly and simply, is that the court pays great respect to, and takes very seriously indeed, the expressed wishes and feelings of a Gillick competent child and, in particular, the religious views and the religious faith held by a Gillick competent child and her family ...
12. However ... in the final analysis, there may be situations, particularly where serious risk to health or life itself is concerned, where the duty of the court, although having regard to the views of a Gillick competent child, is to decline to give effect to them.
13. The overriding obligation of the court is to act in the best interests of X ... it may be appropriate for the court to decide, with regret, but nonetheless firmly, not to give effect to the strongly held views and the strongly held religious beliefs ...
14. Mr Brady, in an enormously helpful and detailed skeleton argument for which I thank him, has put together arguments suggesting that this view of the law is in need of urgent re-analysis and review, partly in the light of the Human Rights Act 1998, partly in the light of more general recent legal developments, and partly in the light of the very important decision of the Supreme Court of Canada to which he powerfully drew my attention: AC v Manitoba ...
15. In those circumstances, it seems to me that the answer is that I have to authorise the giving of this blood transfusion ... In saying that, and in coming to this conclusion, I emphasise to X, who, as I am saying this, is watching me and listening over the Teams link, that I have very much in mind and have paid very careful attention to everything she has said. I appreciate in particular that, if this order is made, she will, again, have the same reactions as she described in very powerful and moving language she had on the two previous occasions when she had a transfusion. I do not, in any way, minimise the significance of that to her. I do not in any way minimise the profound significance to her of the fact I am overriding her strongly held religious beliefs. However, it does seem to me, in the light of the evidence I have heard, that were I not to take that course, I would be running a very real risk indeed, and an impermissible risk, of really serious harm to, not merely her future health and welfare but, potentially, even to life itself.
18. ... It is a matter of profound concern to me that, for whatever reason, this case has come back before the court, having previously been before the court in May ... in a tremendous rush and in circumstances approaching medical crisis ... [I]t has had the profoundly adverse consequence, the profoundly troubling consequence, that the court has not been able to deal with it in the way in which, ideally, the court would wish to deal with it.
19. It would be nothing short of intolerable if I were simply to make the order I have made and left the matter to await the next potential crisis ... It seems to me imperative that the court, sooner rather than later, and before we have the next crisis, is able to give proper attention to Mr Brady's very important submissions so that the next time, if there is a next time and the case comes back to court, there will be a clear legal framework available for the resolution of the next crisis. I would like the parties to consider how best we could deal with that.
20. There is also, although on one view, this is a matter for the next occasion, the question of whether the court should make, as it were, an order covering similar eventualities over the next two years until X reaches the age of 18. That is a matter which needs to be dealt with urgently and as part of this urgent hearing which I have in mind. However, it does seem to me something which is going to require careful argument because ... I have little doubt the court has power to make such an order, I will require considerable persuasion that it is proper for the court to make such an order in this kind of case.
21. It does seem to me that the proper way forward to avoid this unfortunate scramble to justice, because that is all we have been able to achieve today, is to make sure that these important issues that Mr Brady very properly wants to raise, can be dealt with in early course at a hearing where there has been adequate time for preparation, adequate time for argument and adequate time for judicial reflection. -
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Elders accused of playing rape tape to victim, 15; case goes to Utah Sup. Court
by Corney ina woman is suing a local congregation ("kingdom hall of jehovah’s witnesses, roy, utah, an unincorporated association"), individual elders and watchtower ny after, she claims, a judicial committee forced her to listen an audio recording of her own rape.
the trial court summarized the facts as alleged by the plaintiff as follows:.
at the time of the judicial committee, plaintiff was fifteen years old.
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Corney
The hearing has been held on Monday, as previously announced.
The argument recording (credit to Mark O'Donnell): https://youtu.be/dAu4SDd0_nY
Covered by an LDS-affiliated (correct me if I'm wrong on this) media outlet: http://deseret.com/utah/2020/11/9/21557200/utah-supreme-court-case-woman-says-church-made-her-listen-to-audio-of-her-rape-jehovahs-witnesses
I think the case won't be decided by the Utah Supreme Court until at least March, and whatever the outcome, the battle over First Amendment issues won't be over. I'm not sure on some procedural rules, but apparently we can expect there will be either a SCOTUS petition or a new motion to dismiss on grounds not considered by appellate courts, like the federal Free Exercise Clause or the Utah Constitution.
Some thoughts:
First, I can't help but to think that people without proper legal background are unable, in most cases, to comment meaningfully - not just expressing one's outrage or excitement, or twisting facts to express or support one's hostility towards something, or oversimplifying issues in question - on law and lawsuits. The inability of many commenters on Reddit, Youtube and other sites to distinguish between facts and allegations and to understand Justice Lee's therapy analogy are good examples.
Secondly, I would welcome a narrow and cautious judgment for the plaintiff. This lawsuit deserves to be tried but I'm not sure on IIED claims in general. The tort of intentional infliction of emotional distress is unique, amorphous and controversial. In contrast to battery, trespass and other torts, IIED isn't clearly defined and requires a jury to determine whether certain conduct is "outrageous," which in the current age of hyper-sensitivity, victimhood complex and rising anti-religious bigotry may result in gross violations of religious freedom. This case is complex not because evil Mormon judges want to make religion immune from scrutiny and liability - it's complex because courts needs to draw a line and to establish a viable and clear legal standard.
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I don't believe there are 8 million JWS
by Hotpepper inwith all the closing of halls.
and all the csa cases.
and all the jws not only slipping out the back door.
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Corney
Yes Hotpepper, I have a thought:
You are too deep in your WarwickMenBad echo chamber. It's not a good thing.
As to the talking points you've repeated, neither of them supports your claim.
I also have a link for you: https://ronaldlawson.net/2020/05/07/reassessing-the-size-of-mormons-adventists-and-witnesses-using-census-data-to-test-the-reliability-of-membership-data-and-accounting-for-the-disparate-patterns-found/
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Two kingdom halls up for sale in our area
by Still Totally ADD indriving by a kh yesterday we saw a for sale sign in front of the building.
it's on a beautiful piece of property off a main road outside the city limits.
the building can be no more than 10 years old and is very beautiful.
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Corney
Two Kingdom Halls have been recently sold in Erie County, PA:
627 Worth St., Corry - on October 2 to private individuals for $90,000
617 (621) West 2nd St., Erie - on November 5 to West Erie Presbyterian Church in America for $110,000
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EU top court rules on JW blood transfusion case
by Corney inthe court of justice of the european union (cjeu) yesterday delivered the judgment (press release) on a request of the supreme court of latvia on whether domestic authorities are obliged to reimburse costs of cross-border medical treatment when the patient's decision to perform it in another european country was based on religious, not medical, grounds.
the opinion of advocate general (summarized here) is helpful in understanding the case.. the son of the applicant in the main proceedings had to have open heart surgery.
that operation was available in the latter’s member state of affiliation, latvia, but could not be carried out without a blood transfusion.
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Corney
Diogenesister:
Agree. One thing is what Watchtower must do (e.g., to reform the blood teaching - at least, to create an exception for life-threatening situations).
Another thing is what the state must do (to ensure, to a reasonable extent, that patients receive treatement compatible with their beliefs, that they are properly informed about risks and consequences of their refusal, perhaps to protect patients from undue influence etc.).
Phizzy:
I don't think they have reasons to be afraid of lawsuits. Even a total doctrinal U-turn would add nothing to the legal basis for potential litigation. Well, it's possible to argue that it would somehow angry and provoke many people to sue - but the number of non-Witnesses and ex-Witnesses whose loved ones died after refusing blood transfusion is already significant, so if there is no a lot of such lawsuits, it's not because of lack of aggrieved people.
Perhaps the JW leadership is just afraid of risks (confusion, disappointment, frustration etc. among members and other people) and lack of benefits (government and social pressure is unlikely to ease and can even grow) of such dramatic change which may also be hindered by structural features like the GB supermajority rule (assuming it still exists).
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Three new lawsuits against Watchtower filed under NY Child Victims Act (CVA) this October, bringing number of CVA cases up to six
by Corney innew cases:.
diaz case, filed on 10/21/2020 by zalkin law firm - two plaintiffs abused (here and hereinafter - allegedly) by two ministerial servants in 1970s.. iglesias case, filed on 10/19/2020 by eisenberg & baum, llp against various nyc and wt entities - abused by an "elder john doe" and "[travelling] overseer john" in 1970s and 1980s.. aldridge case, filed 10/06/2020 by zalkin law firm - abused by a congregation elder in 1970s.. older cases:.
tarry case (no 1 and no 2), filed on 09/17/2019 and 07/23/2020 by parker waichman llp - abused by a publisher in 1984. very weak case.
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Corney
New cases:
Diaz case, filed on 10/21/2020 by Zalkin Law Firm - two plaintiffs abused (here and hereinafter - allegedly) by two ministerial servants in 1970s.
Iglesias case, filed on 10/19/2020 by Eisenberg & Baum, LLP against various NYC and WT entities - abused by an "elder John Doe" and "[travelling] overseer John" in 1970s and 1980s.
Aldridge case, filed 10/06/2020 by Zalkin Law Firm - abused by a congregation elder in 1970s.
Older cases:
Tarry case (no 1 and no 2), filed on 09/17/2019 and 07/23/2020 by Parker Waichman LLP - abused by a publisher in 1984. Very weak case. Motion to dismiss for failure to state a claim (because the alleged abuser was a rank-and-file member and no special relationship existed) is pending.
Steele case, filed on 08/14/2019, re-filed on 10/30/2019 by Zalkin Law Firm - abused by elder Nicholson (denies the accusations, except for forcible touching) in 1970s and 1980s between two and ten years old. Motion for change of venue denied, motions to dismiss filed on behalf of:
CCJW (on the ground that it didn't exist at the material time),
Watchtower NY and Warrensburg congregation (claiming, among others, that the NY CVA violates the NY Constitution Due Process Clause as applied in the case; "more than a generation has passed since" 1982, the congregation memorandum states, apparently unaware of the overlapping generation teaching),
"the eight individuals who currently serve on the Governing Body of Jehovah’s Witnesses" (claiming, among others, that the GB isn't a jural entity that can sue or be sued),
- are currently pending.
Ewing case, filed on 08/14/2019 by Zalkin Law Firm - abused by ministerial servant Rust in 1980s between 14 and 18 years old. Motions to dismiss filed by the GB (nearly identical to the above-described one), CCJW and WTNY (claiming, among others, that a ministerial servant is a rank-and-file congregant and that the four years statute of limitations under Florida law should be applied to instances of abuse that occured there) are pending.
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Corney
Another few years of this "progressive" idiocy, and no one, except for devoted Wokeists, will bother to challenge accusations of "racism," "misogyny," "transphobia" etc. They'll just be answered with "So what?" or "Like it's a bad thing."
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Members or Individuals
by Dazed_Confussed inany truth to the thought that instead of being considered "members" of the jw organization, that they will shortly be considered only as "individuals" of the organization?.
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Corney
If the term was just silently replaced but there was no explicit statement that JWs are no longer members, it doesn't change anything legally. Also, religious and other associations are generally not liable for actions and omissions of their members, so I fail to understand the reason for this change, even though it appears to have something to do with legal issues. -
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EU top court rules on JW blood transfusion case
by Corney inthe court of justice of the european union (cjeu) yesterday delivered the judgment (press release) on a request of the supreme court of latvia on whether domestic authorities are obliged to reimburse costs of cross-border medical treatment when the patient's decision to perform it in another european country was based on religious, not medical, grounds.
the opinion of advocate general (summarized here) is helpful in understanding the case.. the son of the applicant in the main proceedings had to have open heart surgery.
that operation was available in the latter’s member state of affiliation, latvia, but could not be carried out without a blood transfusion.
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Corney
The Court of Justice of the European Union (CJEU) yesterday delivered the Judgment (press release) on a request of the Supreme Court of Latvia on whether domestic authorities are obliged to reimburse costs of cross-border medical treatment when the patient's decision to perform it in another European country was based on religious, not medical, grounds. The Opinion of Advocate General (summarized here) is helpful in understanding the case.
The son of the applicant in the main proceedings had to have open heart surgery. That operation was available in the latter’s Member State of affiliation, Latvia, but could not be carried out without a blood transfusion. However, the applicant in the main proceedings opposed that method of treatment on the ground that he was a Jehovah’s Witness, and therefore requested that the Nacionālais veselības dienests (the national health service, Latvia) issue an authorisation so that his son could receive scheduled treatment in Poland, where the operation could be performed without a blood transfusion. As his request was rejected, the applicant brought an action against the health service’s refusal decision. That action was dismissed at first instance, a ruling which was upheld on appeal. In the meantime, the applicant’s son had heart surgery in Poland, without a blood transfusion.
It should be noted that there are two reimbursement schemes under the EU law, established by Regulation 883/2004 and Directive 2011/24. The former one obliges Member States to fully reimburse costs of cross-border healthcare, while under the latter one the costs are reimbursed "up to the level of costs that would have been assumed by that Member State, had that healthcare been provided in its territory, without exceeding the actual costs of healthcare received."
By virtue of Article 20(2) of Regulation No 883/2004, the Member State of affiliation must bear the costs of that healthcare in the Member State of treatment, whereas in the case of Articles 7 and 8 of Directive 2011/24, the obligations of the Member State of affiliation are simply to discharge the costs which its public health system would have had to bear anyway had the treatment been carried out in that Member State.
Taking this difference into account, the Court has ruled that domestic authorities aren't obliged to fully reimburse costs of cross-border medical treatment under (more generous) Regulation 883/2004 "where hospital care, the medical effectiveness of which is not contested, is available in that Member State, although the method of treatment used is contrary to that person’s religious beliefs," but can't refuse (likely partial) reimbursement under Directive 2011/24 in such circumstances, "unless that refusal is objectively justified by a legitimate aim relating to maintaining treatment capacity or medical competence, and is an appropriate and necessary means of achieving that aim"
It's noteworthy that the applicant was represented before the CJEU by, among others, prominent JW lawyers Shane Brady and Petr Muzny.
Also, this case may be compared with the landmark Stinemetz case, widely cited in support of state RFRAs and overruling Smith v Employment Division.
Mary Stinemetz was a Medicaid patient in need of a liver transplant. She was also a Jehovah’s Witness, who objected to the blood transfusion that an ordinary liver transplant would require. With technology’s advance, however, has come a newfangled medical procedure called a bloodless liver transplant, which does not involve a blood transfusion and which is actually cheaper than an ordinary liver transplant. But Kansas had no facility capable of doing bloodless liver transplants. The nearest one was in Omaha, in Nebraska.
Unfortunately for Stinemetz, Kansas’s Medicaid had a general policy against reimbursing out-of-state procedures, and it refused to make any exception for her. If that refusal seems hard to understand, the Kansas Court of Appeals felt the same way. The court concluded that Kansas’s Medicaid agency had “failed to suggest any state interest, much less a compelling interest, for denying Stinemetz’s request.” Stinemetz ultimately won this case. Struck by its facts, the Kansas Court of Appeals construed the religious freedom provision in the Kansas state constitution to incorporate RFRA’s compelling-interest standard.
This story, however, does not end happily. By the time litigation ended, Stinemetz’s problems had progressed to the point that she was no longer eligible for a transplant. She died of liver failure the year after her victory in the Kansas Court of Appeals. This does not necessarily imply that Stinemetz died for want of a religious exemption. There may have been other obstacles to Stinemetz actually getting a liver transplant, and there is no guarantee the transplant would have gone successfully. All we can say is that, had Kansas offered her a religious exemption from the beginning, Stinemetz would have had a better chance.https://digital.sandiego.edu/cgi/viewcontent.cgi?article=1089&context=sdlr