The Commonwealth Gazette

February 2015
The
Commonwealth
Gazette
detail/story.html#ixzz3Q1tlcIln
Given that 4 February 2015 is world cancer
day, the theme for this month’s magazine is of
course cancer awareness, as well as
highlighting news regarding cancer in an
around the commonwealth.
Breast Tumor Awareness Lacking
Among Cancer Patients: Study
(United Kingdom)
Give blood in support of World
Cancer Day (United Kingdom)
4 February 2015 is World Cancer Day and
those who give blood or who are thinking of
becoming a donor are being reminded how
vital their gift is to cancer sufferers. Read
more:
http://www.cornishman.co.uk/blood-support-
World-Cancer-Day/story-25889190-
Many women who have had a brush with
breast cancer lack basic understanding of
their tumors, a new study reveals. According
to The Huffington Post, the study showed that
participants were not aware about grade,
stage, and whether or not their cancer was
estrogen dependent and HER2 positive. Read
the full story at
http://www.newseveryday.com/articles/7116
/20150126/breast-tumor-awareness-lackingcancer-patients-study.htm

Heartburn 'possible cancer sign' warning
(United Kingdom)
Blood for sale: India's illegal 'red market'
(India)
A health campaign is urging people not to
ignore heartburn, because it could be a sign of
stomach or oesophageal cancer. According to
Public Health England, people should go to
their doctor if they have persistent heartburn
or difficulty swallowing food for three weeks
or more. Read the full story at
http://www.bbc.com/news/health-30953825
Former Nigerian Goalkeeper dies of
cancer (Nigeria)
Wilfried Agbonavbare Ex-Nigerian
goalkeeper who had had a protracted battle
with cancer has died. The Tunisia 1994
Nations Cup winning second choice keeper
reportedly died of cancer in Spain on
Tuesday, January 27, 2015. His wife died
years ago, also from cancer. He lives behind
young children. Read storyat
http://odili.net/news/source/2015/jan/27/510.
html
Blood is in chronic short supply in India,
according to the World Health Organization
(WHO), which stipulates that every country
needs at least a 1% reserve. India, with its
population of 1.2 billion people, needs 12
million units of blood annually but collects
only 9 million - a 25% deficit. Read the full
story at http://www.bbc.com/news/business-
30273994
Botswana Doctor Is Named to Lead
W.H.O. in Africa (Botswana)
A defining moment in the life of Dr.
Matshidiso Moeti, the World Health
Organization’s new regional director for
Africa, came when she was 9 and her father
realized that her little sister’s mathematics
textbook was below even the level he had
studied as a poor child on a South African
farm. He and his wife had both graduated from
one of the country’s top medical schools, the
University of the Witwatersrand, but the
National Party that came to power in 1948 had
imposed “Bantu education” on blacks,
preparing them only for subservient jobs under
apartheid. Read the full story at
http://www.nytimes.com/2015/01/28/world/af
rica/botswana-doctor-is-named-to-lead-whoinafrica.htmlhpw&rref=health&action=click&

Egypt FGM trial 'convicts doctor of
manslaughter' (Egypt)
patients' group Healthwatch England. In this
week's Scrubbing Up, she says the NHS often
doesn't let witnesses file complaints - an
omission akin to preventing people reporting
an abandoned bag at an airport because they
don't have the owner's permission. Read the
full story at
http://www.bbc.com/news/health-30333071
Medical Guild extends strike
ultimatum (Nigeria)
An Egyptian doctor has been convicted of the
manslaughter of a girl who died after an
illegal female genital mutilation procedure,
activists say. Opponents of FGM were
dismayed when Raslan Fadl was acquitted in
November of charges relating to the death of
13-year-old Suhair al-Bataa. But after an
appeal, a court in the Nile Delta city of
Mansoura sentenced him to more than two
years in prison.The campaign group Equality
Now called the ruling a "monumental
victory". Read the full story at
pgtype=Homepage&module=wellregion&region=bottomwell&WT.nav=bottom-well&_r=0
http://www.bbc.com/news/world-middleeast-30983027.
NHS should welcome 'citizen
whistleblowers' (United Kingdom)
People who see something going wrong in the
NHS should be able to report their concerns,
even if they haven't been directly affected,
according to Anna Bradley, the chair of
Doctors employed by the Lagos State
Government have extended the 21-day strike
ultimatum given to the state government over
the non-payment of their July and August
salaries. It would be recalled that the Medical
Guild gave a 21-day ultimatum to the state
government to resolve certain issues or face
industrial action. The ultimatum lapsed on
Sunday, January 18, 2015. Read more at
http://www.punchng.com/health/medicalguild-extends-strike-ultimatum/

'Half of UK people' will get cancer.
(United Kingdom)
One in two people in the UK will be
diagnosed with cancer at some point in their
lives, analysis suggests. Cancer Research UK
said this estimate, using a new calculation
method, replaced a forecast of more than one
in three people developing the disease. It said
longer life expectancies meant more people
would be affected. But it was not inevitable
and improving lifestyle, such as losing weight
and quitting smoking, could have a major
impact, the charity added.The good news is
cancer survival figures are also rising. Read
the full story at
http://www.bbc.com/news/health-31096218
Britain and Commonwealth may
suspend Guyana for breaching rules
(Guyana)
The 53-nation Commonwealth grouping of
former British colonies last week threatened
to sanction Guyana’s government for its
suspension of the country’s parliament and
for its steadfast refusal to hold local
government elections for more than 20 years,
Britain’s representative to the country said
this week. Read the full story at
http://newpittsburghcourieronline.com/2015/
01/22/britain-and-commonwealth-maysuspend-guyana-for-breaching-rules/.
Measles outbreak: The loopholes in
Canada's vaccination laws. (Canada)
Publicly funded immunization programs
continue to be stricken by lower-thanrecommended
rates of uptake among some
Canadian populations, despite potentially
saving hundreds of thousands of young lives
a year. In Toronto, public health officials
worry that four confirmed cases of measles —
two children and two adults — could be just
the beginning of a larger outbreak,
particularly given the warnings by the U.S.
Centers for Disease Control of a flare-up that
has afflicted 102 people in 14 U.S. states.
Racism against aboriginal people in
health-care system 'pervasive': study
(Canada)
A new study suggests racism against
aboriginal people in the health-care system is
"pervasive" and a major factor in substandard
health among native people in Canada. The
study — called First Peoples, Second Class
Treatment — was released today by the
Wellesley Institute, which researches public
health issues. Read the full article at
http://www.cbc.ca/news/aboriginal/racismagainst-aboriginal-people-in-health-caresystem-pervasive-study-1.2942644

Robert Downey Jr. is interested in
Detective Byomkesh Bakshy (India)
his hit number 'Chaiyya chaiyya' some day.
Obama, who was in India on a three-day state
visit, recollected that when he had first visited
India in 2010, he had experienced some
'bhangra'. Read the full story at
http://timesofindia.indiatimes.com/entertain
ment/hindi/bollywood/news/Shah-Rukh-
Khan-to-Obama-Next-time-Chaiyya-
Chaiyya/articleshow/46030988.cms
Robert Downey Jr. has played Sherlock
Holmes in the American film series which is
one of the biggest detective franchises. Time
and again, Detective Byomkesh Bakshy! is
getting pitted against Sherlock Holmes and
when Robert heard about this Indian
detective, it piqued his interest. A source
shares, Detective Byomkesh Bakshy! is an
iconic detective character among Indians.
However with a film being modeled around
it, people across borders are getting to know
about him. As a genre it holds the attention
across the globe and especially after the trailer
the film Detective Byomkesh Bakshy! has
intrigued audiences at large."
Read the full story at
http://timesofindia.indiatimes.com/entertain
ment/hindi/bollywood/news/Robert-
Downey-Jr-is-interested-in-Detective-
Byomkesh-
Bakshy/articleshow/46029659.cms
South African U20's clinch the
Commonwealth Cup in Russia (South
Africa)
The South Africa men's U20 national team,
the Amajita, made history in Russia when
they beat Finland with 2-1 in the final of the
Commonwealth Cup at the weekend. Read
the full story at
http://www.timeslive.co.za/sport/soccer/201
5/01/26/south-african-u20-s-clinch-thecommonwealth-cup-in-russia
Shah Rukh Khan to Obama: Next
time 'Chaiyya Chaiyya' (India)
Bollywood superstar Shah Rukh Khan is
delighted that US President Barack Obama
incorporated his famous 'Senorita' dialogue
during an address in the national capital. Now
King Khan hopes that Obama will groove to

CASE DISCUSSION
Unreported Judgments
The following (as yet) unreported judgments
which are of interest were recently delivered in
the Commonwealth.
In the South African Constitutional Court: H v
Fetal Assessment Centre Case CCT
74/14 [2014] ZACC 34). The Constitutionality of
the so-called “wrongful life” action was
considered. The case is internationally
significant because the Court did not uphold an
exception that the cause of action is not valid –
and in doing so, the judgment is one of the few
instances of such a right being potentially
countenanced by the courts.
In the United Kingdom Supreme Court:
Greater Glasgow Health Board
(Appellant) v Doogan and another
(Respondents) (Scotland) [2014]
UKSC 68: The Abortion Act 1967 (as amended)
sets out the circumstances in which the
termination of a pregnancy can lawfully be
brought about. Section 4(1) establishes a right of
conscientious objection: it provides that ‘no
person shall be under any duty, whether by
contract or by any statutory or other legal
requirement, to participate in any treatment
authorised by this Act to which he has a
conscientious objection’ unless, pursuant to
subsection (2), it is ‘necessary to save the life or
prevent grave permanent injury to the physical
or mental health of a pregnant woman’. This
appeal dealt with the precise scope of the right to
conscientious objection.
In the South African Supreme Court of Appeal:
Cecilia Goliath v Member of the
Executive Council for Health,
Eastern Cape (085/2014) [2014] ZASCA
182. In this “swab case”, the court considered the
maxim res ipsa loquitur in the context of actions
for medical negligence. The court held that it was
inappropriate to resort to a piecemeal processes
of reasoning. There was only one enquiry -
whether the plaintiff has discharged the onus of
proving on a balance of probabilities the
negligence averred against the defendant.
Reported Judgments
Birmingham Children's NHS Trust
v B and another [2014] EWHC 531
(Fam); 137 BMLR 222.
A week-old baby with transposition of the great
arteries required cardiac surgery – he had no
prospects of long-term survival without surgery.
The baby’s parents, who were Jehovah’s
Witnesses, were willing to consent to surgery but
not to necessary blood on religious grounds. The
hospital sought a declaration from court that it
would be lawful to perform cardiac surgery and
to deploy blood during and consequent to that
surgery. The parents did not actively oppose the
hospital's application.
In considering this application, the judge
considered, in its widest possible sense, the
baby's welfare best interests. It was clear on the
evidence that, while risks attached to him
undergoing the procedure, those were minimal
risks, whereas if the baby did not undergo the
procedure, his chances of survival were
extremely poor. Looking at his welfare best
interests, there was no doubt that it was in his
best interests to undergo the surgery that was
proposed. Because it was inevitable that he must
receive blood transfusions during the course of,
or subsequent to, the surgery the judge
determined, notwithstanding the parents'
understandable objections on religious grounds,
that it was in the baby's welfare best interests to
receive blood products both during the surgery
and, if necessary, subsequent to it.

Mental Health Trust and others v
DD (by her litigation friend, the
Official Solicitor) and another
[2014] EWCOP 11; 140 BMLR 118.
This case dealt with the determination of a
person’s best interests who is mentally incapable
of making legally valid decisions.
A mother of five was pregnant with her sixth
child. Four of the five children had been
adopted, and the fifth was in care. The patient
had a complex obstetric history, learning
difficulties and autistic spectrum disorder, and
was accordingly a vulnerable person. The
hospital sought court orders concerning the
health of mother during final stage of pregnancy,
and the safe delivery of the unborn baby, as well
as an order authorising assessment of mother's
capacity to make decisions about contraception
following the birth of baby. The issues were
whether the patient had capacity to litigate on
the relevant issues, whether the declarations
sought were in the patient’s best interests, and
whether the patient lacked capacity to consent to
an assessment of her capacity to make decisions
in relation to contraception. The applicants
proposed that the patient should not be advised
of the date planned for the caesarean procedure,
but that they should be given partial
information.
The Court held, on the facts, that the patient
lacked the capacity to litigate in relation to the
relevant issues. She lacked capacity to make
decisions in respect of her healthcare, in
particular to decide where to give birth to her
unborn child and to decide whether to have her
baby delivered by vaginal delivery or caesarean
section. It was in her best interests, and
therefore lawful for her to be taken to a hospital
and for the medical, nursing and midwifery
practitioners attending her to carry out a
planned caesarean section and all necessary
ancillary care; and to provide the patient with all
necessary ancillary pre-operative care and
treatment. The applicants were authorised to
take such necessary, reasonable and
proportionate measures to give effect to the best
interests declaration, including forced entry into
the patient’s home, restraint to prevent her from
leaving the ward pending treatment and/or until
it was clinically appropriate for her to be
discharged, and any necessary sedation. The
judge required the applicants to take all
reasonable steps to minimise distress to the
patient and to maintain her dignity, and
concluded that there were reasonable grounds to
believe that the patient lacked capacity to
consent to an assessment of her capacity to make
decisions in relation to contraception. However,
it was not considered to be in the patient's best
interests, or that she should be subject to a oneday
assessment of her capacity to make
decisions about contraception at this stage, and
that application was refused. That issue would
need to be addressed as a matter of urgency
within two months or so after the birth.
(Consideration was given to arts 6 and 8 of the
European Convention for the Protection of
Human Rights and Fundamental Freedoms
1950. Human rights – Mental Capacity Act 2005
– European Convention for the Protection of
Human Rights and Fundamental Freedoms
1950, arts 5 and 8).
R v H 140 BMLR 59; [2014] EWCA Crim
1555.
This is a case dealing with the use of expert
evidence, and the undesirability of leading
unreliable or inappropriate expert evidence. The
case follows a trend in a number of jurisdictions
in which expert evidence has come under
increasing scrutiny by the courts (see eg. United
Kingdom: Jones v Kaney - 119 BMLR 167 [2011]
UKSC 13; Ndlovu v Road Accident Fund 2014
(1) SA 415 (GSJ)).
The applicant was a general practitioner who
had been convicted of various offences. The trial
judge had refused to admit evidence of an expert
which was in the appellant’s favour, and the
applicant appealed. The appeal against
conviction was dismissed. The court found that
the trial judge had not erred in refusing to admit
the evidence of the expert. The defence was
entitled in appropriate cases to call expert
evidence on a specific subject outside the

knowledge and experience of the jury which
might assist them in the task of assessing
credibility and reliability. However, in the
instant case, the trial judge had found that there
was no evidence on which the jury could find
that the complainant had 'recovered' or
'retrieved' memories during the treatment for
her mental illness, and there was thus no basis
for admitting the expert’s evidence of false
memory syndrome, which would have had the
effect of usurping the function of the jury in
assessing the complainant's credibility as a
witness.
parties and the court if the expert’s opinion
changes from that contained in a report served
as evidence or given in a statement).
(Editor’s note: Of importance, the court (per
curiam) expressed a real concern about the use
of unreliable or inappropriate expert evidence in
such cases. In the United Kingdom, the Criminal
Procedure Rules 2014 and amendments to the
Criminal Practice Directions made by the Lord
Chief Justice came into force which incorporated
certain reliability factors recommended by the
Law Commission for the admission of expert
evidence. When these changes occurred, a new
and more rigorous approach on the part of the
courts to the handling of expert witnesses was
adopted. The intention was to avoid
misunderstandings about what was (and what
was not) appropriately included in an expert's
report and so either avoid, or at least render far
more straightforward, submissions on
admissibility such as those made in the instant
case. In particular, comment based only on
analysis of the evidence which effectively
usurped the task of the jury was to be avoided.
Part 33 of the Rules now includes an
identification of the expert’s duty to the court as
being: to help the court to achieve the overriding
objective that criminal cases be dealt with justly
by giving opinion which is objective and
unbiased and within the expert’s area or areas of
expertise. This duty overrides any obligation to
the person from whom the expert receives
instructions or by whom the expert is paid. The
duty includes obligations to define the expert’s
area or areas of expertise in the expert’s report,
and when giving evidence in person. When
giving evidence in person, the expert is obliged
to draw the court’s attention to any question to
which the answer would be outside the expert’s
area or areas of expertise; and to inform all