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Test case biographies travelled to Nottingham

In 2014, 2015, Testing project on March 23, 2015 at 8:56 am

The formal end-date for the British Academy/Leverhulme funded project on ‘Test Case Biographies as a Method for Studying Hidden Law-Making’ fell on 15 March 2015. As we turn our attention to writing up the Final Report, and complete at least one publication that has emerged from the project, it is useful to retrospectively write about our paper at the SLS annual conference last year (somewhat belatedly, we admit – and the title of this post adopts that of our write up re the SLSA paper).

On 10 September 2014, Professor Jonathan Montgomery (UCL) and Dr Caroline Jones (Southampton) presented their initial project findings in a paper entitled ‘Test Case Biographies in the (Hidden) Province of Medical Jurisprudence’, in the Medical Law stream at the annual Society of Legal Scholars conference, held at the University of Nottingham.

Abstract: This paper outlines the method(s) developed to create ‘biographies’ of pivotal health care law test cases, in order to explore their provenance and impact, and reflects on the implications of what emerges from this biographical approach for understanding the role of judicial rulings in the development of the law.

Three leading health care law cases, displaying a range of typical variables, will be used to illuminate how social and ethical dilemmas give rise to litigation, rather than other approaches to resolving issues, and the implications for legal theory and policy making. The cases are Quintavalle v HFEA [2005] UKHL 28, wherein a pressure group, CORE, intervened to challenge a regulatory decision, in which it had no personal interest; Burke v GMC [2005] EWCA Civ 1003, where a court ruling was sought regarding the application of non-statutory guidance on the provision of life-sustaining treatment; and R (on the application of AC) v Berkshire West PCT [2011] EWCA Civ 247, on the rationality of a ‘rationing’ decision, and the interplay between procedural and substantive values.

The paper considers how to situate judges within the biography of a case and whether insights from ‘case biographies’ might have a role within judicial decision-making.

And, what we actually spoke on:

As can often be the case, with the benefit of time and reflection between submission of the abstract and the conference, the focus of the paper we delivered was a little different. We did not, for example, consider or situate judges within the biography of a case, except inasmuch as we drew attention to Munby’s consideration of ‘intolerability’ as an example of a distinct style of judging, drawing from our earlier Modern Law Review paper ‘Hidden Law-Making in the Province of Medical Jurisprudence’.

We did, however, outline our findings and reflections – at that time – on the three case studies; tentatively concluding that we have not identified a biographical ‘method’ per se, but note that by asking questions about/around biographical considerations we have spotted different things about these cases. We have illuminated some aspects, albeit we make no claims to ‘truth’ regarding various narrative constructions that emerge from the data, nor seek to explain why things have happened (or indeed why they happened in the way that they did) – these are much more difficult claims. Nevertheless, we realised that there is no single biography of a case (if indeed we ever believed there was), but there are lots of different biographical aspects going on in a given case context, both within the legal stories of legal actors, but also outside of law that intersect and engage with the ‘legal’ aspects. Drawing out some of these strands has been interesting and illuminating, and the task now is for further reflection and critique, not least with existing ideas around democratic, political and philosophical legitimacy.

At Tale of Two Citadels travels to SLSA Aberdeen

In 2014, Gratuitous self-promotion, Testing project on May 8, 2014 at 11:33 am

In April 2014 I travelled up to Aberdeen for the annual SLSA conference, hosted by the Law School, Robert Gordon University, to deliver our paper on ‘Two Citadels’ in the Medical Law stream. Aberdeen is a great, albeit expensive city to visit (well, mid-week anyway – that’s oil money for you). There was a huge array of papers in parallel streams, with the inevitable difficult choices that this invokes for attendees – there are always papers you would have liked to hear but – in the absence of Potter-eqsue ‘Time Turners’ – the timing did not permit. The full programme can be found here ParallelSessionSummarySLSA2014.

Glenys Williams, convenor of the Medical Law & Ethics stream, put together an excellent programme. The first session focused on various and fascinating aspects of abortion, space, community, history and conscientious objection (and more), featuring Joanna Erdman (Dalhousie), Ruth Fletcher (QMU) and Michael Thomson (Leeds). It was a lively and engaging session, and a superb start to the conference.

After coffee, Claire Lougarre (UCL) and I shared the next session, giving plenty of time for questions and discussion for both papers, which was a real gift. Claire gave a thought-provoking and engaging account of her PhD research on the scope of the ‘right’ to health, something that she and Jonathan have already and I’m sure will continue to enjoy discussing ‘up’ at UCL. With Jonathan in Warsaw on NCOB business, and in the absence of a cardboard cutout of him (to direct any awkward question to …) it was left to me to present the latest iteration of our work in progress: ‘A Tale of Two Citadels: Competing Narratives in a Case Biography’, drawn from our British Academy/The Leverhulme Trust funded project ‘Test case biographies as a method for studying hidden law-making’.

The case study in this paper, focusing on the decision in AC v Berkshire West PCT [2010] EWHC 1162 (Admin) and on appeal [2011] EWCA Civ 247, starts from the position that legal cases are complex social phenomena. They have histories – and they link past and future events in a present encounter. There are established doctrinal approaches to ‘understanding’ cases, and situating their significance within a legal context according to institutional rules (ratio decidendi, obiter dicta, stare decisis, and per incuriam, for example). However, it seems valuable to us to seek to understand alternative ways of mapping cases in the Health Care Law context; exploring, for example, the parties’ understanding of the dispute (a specific dispute, or part of a campaign? Possibly a legal campaign, but alternaively one of a different character again?); also the lawyers and judges involvd have careers in which a specific case will play a part.

Our desk based research, for this case conducted largely by Alex Chrysanthou, has sought to explore the chain of case law leading into and(less significantly, currently) leading out of the AC case, and the network of legal personnel directly involved in this case (which will need further reflection). Our third line of enquiry, undertaken by me, has been to examine the interpretation of this case by legal reports and commentators. This research indicates that the choice of competing narratives began to take shape long before the issue is argued before a judge – i.e., is this about NHS resource allocation, or about transgender legal rights?

The questions, comments and responses from those at the Medical Law and Ethics stream were thought-provoking and will be invaluable in moving the project forward (not least in terms of encouragement as people said how interesting they thought the project was). Also, we look forward to presenting this work again at Southampton next week, at a dedicated event on Hidden Law-Making and Case Biographies – and for the opportunity for further reflection on the next phase of the project – but more on that event to follow in a future blog post.

Caroline Jones

Discussing Case Narratives: UCL Social Values Workshop

In 2013, Case of the week, News, Testing project on November 11, 2013 at 8:00 am

On 1 November 2013, Professor Jonathan Montgomery (UCL, formerly Southampton) and Dr Caroline Jones presented their initial ideas on a case narrative methodology, in a paper entitled ‘A Tale of Two Citadels: competing narratives in a case biography’, at the UCL Social Values Workshop. This research was supported by the British Academy and Leverhulme Trust small grant scheme, and Alex Chrysanthou (Southampton) provided the research assistance.

 Abstract:  This paper considers how clashes of social values in litigation over NHS funding decisions manifest themselves in the ‘biography’ of a case. It argues that the issues in AC v Berkshire West PCT [2010] EWHC 1162 (Admin) and (on appeal) [2011] EWCA Civ 247 can be seen in terms of two competing narratives; one about discrimination and transgender individuals, the other concerning bureaucratic rationality and prioritisation processes. Each narrative can be conceptualised as a siege on a well defended citadel. The first seeks to break down the barriers excluding transgendered people from full recognition in English law and society. The second tries to wrestle resource allocation from professional and managerial discretion into rights-based scrutiny. 

These competing narratives appear in the selection of legal teams, the overlapping but distinct networks in which cases are connected, and interpretive judgments by lawyers in and out of court. Choice between narratives provides significant framing effects for the assessment of social values, a feature that may be normal rather than unusual in contested legal cases.

[nb. The latest protocol on access to gender identity services from NHS England can be found at: http://www.england.nhs.uk/2013/10/28/gender-protocol/]

Caroline Jones

Injecting contraception in schools?

In 2012, News, Reproduction, Testing project on November 6, 2012 at 9:00 am

This is a guest post by Emma Nottingham.

The Daily Telegraph has conducted a survey which revealed that contraceptive injections are being offered in a range of schools across the UK in including Bristol, Northumbria, Peterborough, CountyDurham, the West Midlands and Berkshire. The front page story has expressed concern that school girls as young as thirteen are being given the contraceptive injection at school, without their parents’ knowledge. Statistics revealed that school nurses have given the contraceptive jab or implant to girls between the ages of 13 and 16 more than 900 times in the last two years. The medical profession, including school nurses are bound by rules on confidentiality.

Outrage was expressed by parents in Southampton earlier this year after finding out that children were being given the contraceptive implant in schools without their consent, as part of a wider government initiative to reduce the number of teenage pregnancies. The contraceptive implant works to prevent pregnancy by releasing the hormone progesterone into the bloodstream from a 4cm rod which is inserted into the arm and is effective for up to three years. The contraceptive injection is effective for three months.

The issue of under-16 year olds’ competency to consent to contraceptive advice and treatment without parental consent was settled in the case of Gillick v Wisbech and West Norfolk Health Authority and another [1985] 3 All ER 402, after Victoria Gillick took legal action against the Department of Health and Social Security in response to their 1980 circular on family planning which endorsed confidential contraceptive advice and treatment for under-16 year olds.

Despite the legal settlement of this issue 27 years ago, under-16 year olds’ access to contraceptive treatment without parental consent remains controversial, particularly in light of the advancement in medical technology which offers a wider variety of treatments to females, such as the implant and contraceptive injection, which were not available at the time of Gillick.

 

‘All right thinking people?’: Hidden law making and faith

In 2012, Reproduction, Testing project on October 1, 2012 at 11:40 am

Sarah Catt’s case has attracted huge media interest, following her eight-year imprisonment for taking Misoprostol to bring about a miscarriage a week before full-term. She will be in cusody for four years and on licence for a further four years. See, for example, coverage in The Telegraph, the Guardian –  and again – and the latest related story was in the Sunday Times with pharmacists allegedly selling Misoprostol over the counter. There are numerous blog posts, eg Barbara Hewson’s Spiked post in which she argues against any conviction, and Karen Gardiner’s post on the importance of women’s access to services; and – in the interests of balance – also coverage in the Catholic Herald, where there was a call for the judge’s sentiments to be extended to all foetuses and not only ‘healthy’ ones (c/f s.1(1)(d) Abortion Act 1967).

What does this have to do with hidden law-making?

In his sentencing remarks Mr Justice Cooke commented:

[15]. There is no mitigation available by reference to the Abortion Act, whatever view one takes of its provisions which are, wrongly, liberally construed in practice so as to make abortion available essentially on demand prior to 24 weeks with the approval of registered medical practitioners. What you have done is to rob an apparently healthy child en ventre sa mere, vulnerable and defenceless, of the life which he was about to commence. You are not charged with murder and I would be wrong to treat it as such as matter of law. …

[16]. In English Law, none of those offences could be committed in respect of an unborn child, but the gravamen of this offence is that, at whatever stage life can be said to begin, the child in the womb here was so near to birth that in my judgement all right thinking people would consider this offence more serious than manslaughter or any offence on the calendar other than murder.

The tenor of his comments raised a few eyebrows, and media reporters quickly uncovered Justice Cooke’s strong links with the Lawyers Christian Fellowship – a group which has previously campaigned to change abortion law (at the time of writing none of their public policy material was available on their website, www.lawcf.org). Writing for the Guardian, Amanda Bancroft posited the question thus: ‘When one reads the remarks of the judge knowing his belief system, one can only ask: did the judge view this case only on the context of the crime she actually committed, or also in the context of a crime against a god which may not be hers?’  Interesting to note some of the ‘behind the scenes’ influences in the administration of justice.

HEAL Workshop 2012: Hidden Lawmakers in Health Care Law

In 2012, Meetings, Testing project on September 17, 2012 at 5:00 am

Today and tomorrow (17-18 Sept) we are hosting the second HEAL workshop on Hidden Lawmakers in Health Care Law. Previous posts on this research project can be found here and here.

Health Care Law is a relatively new legal discipline that until recently has been developed significantly through litigation. In recent years it has become apparent that the process by which cases come to be litigated may be less haphazard than at first appears. We are seeking to instigate discussion and further investigation of the role of such ‘test’ cases in developing the substance of Health Care Law.

Drawing on contributions to a two day seminar in 2011, funded by the Modern Law Review, a number of different categories of hidden lawmakers have been identified. This seminar seeks to take that work further in relation to a category of hidden lawmakers that emerged from the seminar and related discussions as requiring further study and consideration. It concerns those who intervene in matters that have come before the courts, to seek to influence the outcomes of the cases. It will bring together a group of invited participants including academics, clinical and legal practitioners, members of interest groups, and participants in influential cases to discuss and debate key aspects of the litigation process, and provide a sounding board for further exploration. The seminar will involve presentations by key participants combined with round table debates and discussions, both formal and informal, amongst the delegates.

Speakers include: Ann Furedi, BPAS; Josephine Quintavalle, CORE; David Lock, QC, No5 Chambers; Prof Rachael Mulheron, Queen Mary, University of London; Prof Laurence Lustgarten, Visiting Fellow, ELAC, University of Oxford and Prof Jonathan Montgomery, University of Southampton. Further details can be found here.

 

Court declines to make new law in Nicklinson test case

In 2012, Death and dying, Key Legal Concepts, Testing project on August 21, 2012 at 4:30 pm

Judgment was given in the latest phase of the Nicklinson litigation on 16 August 2012. The court rejected the suggestions either  (a) that there was a common law defence of necessity that protected those who carried out voluntary euthanasia and or (b) that further clarifications were required of the prosecution policy set out by the Director of Public Prosecutions in 2010. Two cases were heard together, and as they raised significant constitutional issues the Attorney General was joined as a party at the request of the court.

The court acknowledged that these were ‘tragic cases’. Tony Nicklinson had suffered a catastrophic stroke in June 2005 that left him paralysed below the neck, unable to speak or move anything but his head and eyes. He communicated by blinking to indicate a letter on a Perspex board or through an eye blink computer. He said

‘My life can be summed up as dull, miserable, demeaning, undignified and intolerable. …it is misery created by the accumulation of lots of things which are minor in themselves but, taken together, ruin what’s left of my life. Things like…constant dribbling; having to be hoisted everywhere; loss of independence, …particularly toileting and washing, in fact all bodily functions (by far the hardest thing to get used to); having to forgo favourite foods; … having to wait until 10.30 to go to the toilet…in extreme circumstances I have gone in the chair, and have sat there until the carers arrived at the normal time.”

He had wanted his life to end since 2007, although not necessarily immediately. The court understood that he would probably wish to end it in a year or two, but he wanted to establish through the litigation the right to die with dignity at a time of his choosing.  His only options to achieve this were self-starvation or voluntary euthanasia. Assisted euthanasia, such as provided by Dignitas in Switzerland, would not have helped because he did not have the physical ability to carry out the final act himself.

Tony’s case was heard with a separate application from a man referred to by the pseudonym of ‘Martin’. He would be capable of physically assisted suicide, but this would have involved someone else committing an offence under the Suicide Act 1961, section 2. Martin’s wife, a nurse and devoted to his care, was not willing to support Martin for that purpose, with which she did not agree. Martin’s main claim was against the DPP, requesting clarification of the prosecution policy. However, the Solicitors Regulation Authority (SRA) and the General Medical Council (GMC) were also included in the proceedings.

Nicklinson argued for a defence of necessity in the following circumstances:

(a) the Court has confirmed in advance that the defence of necessity will arise on the facts of the particular case; (b) the Court is satisfied that the person is suffering from a medical condition that causes unbearable suffering; that there are no alternative means available by which his suffering may be relieved; and that he has made a voluntary, clear, settled and informed decision to end his life; and (c) the assistance is to be given by a medical doctor who is satisfied that his or her duty to respect autonomy and to ease the patient’s suffering outweighs his or her duty to preserve life;

He contended that his rights under Article 8 of the European Convention on Human Rights required the law to recognise such a defence.

However, the court found that it would be wrong to do so, as it ‘would be to go far beyond anything which the Strasbourg court has said, would be inconsistent with the judgments of the House of Lords and the Strasbourg court in Pretty, and would be to usurp the proper role of Parliament.’ In particular, three reasons were offered why the court should not take this step. These provide an important articulation of the constitutional restraints in relation to judicial law-making, which are significant for our wider project on test cases and hidden lawmakers.

The first was an issue of competence that derived from the difficulties involved in resolving broad conflicts of principles on which our society is divided through the resolution of specific cases. While it might be reasonable for a court to develop the implications of widely held principles, this did not make it competent to play the same role where those principles were controversial. The court’s analysis of the relevant human rights jurisprudence had led it to conclude that the issue of euthanasia was a matter within the margin of appreciation afforded to national legal systems to adopt their own conclusions. Consequently, the development that Nicklinson proposed was not justified as merely an interpretation of the common law to make it consistent with the requirements of the European Convention.

The second problem that the court saw with such judicial activism concerned its constitutionality as it would bring them into conflict with the sovereignty of parliament. The court thought it was being asked  ‘to introduce a major change in an area where there are strongly held conflicting views, where Parliament has rejected attempts to introduce such a change’ (it noted such attempts in 2003, 2004, 2005, 2006, 2009 and 2012). This is a similar argument to that I made in the article, ‘Guarding the gates of St Peter: life, death and law making’ (2011) Legal Studies 31, (4), 644-666, about the decision of the House of Lords in R (Purdy) v DPP  [2009] UKHL 45. In Nicklinson, the court identified a number of cases where expressions of judicial restraint in deference to Parliamentary sovereignty can be found and felt that it should remain within that tradition.

Finally, the court expressed concern about the ability of case law to exercise the necessary control of the consequences that would be needed to develop the law in such a complex area. It suggested that safeguards would need to be designed that could only be properly done by Parliament. This could be said to be implicitly recognised by the terms of the declaration sought by Nicklinson, with its references to prior review by the courts and professional involvement in carrying out the ‘mercy killing’. If necessity really prevailed, then surely the circumstances would justify the killing whether or not the court had looked at it in advance.

Thus, the decision can be said to take a more orthodox approach to role of the courts than that adopted in Purdy. Rejecting the suggestion that further clarification was required of the DPP’s policy, the court suggested that to do so would be to require the DPP to impinge on Parliamentary sovereignty. It also noted that this would be too rigid an interpretation of the need for certainty implied by ‘in accordance with the law’ in Article 8(2) of the European Convention on Human Rights (again see my article for a similar argument), stating that

‘it would go beyond the Convention jurisprudence about the meaning of “law” in the context of the rule of law. Even when considering the meaning of “law” in the strict sense of that which may be enforced by the courts, the jurisprudence allows a degree of flexibility in the way that it is formulated (Sunday Times v UK). This must apply even more in relation to “law” in the extended sense of meaning the law as it is liable in practice to be enforced (Purdy paragraph 112), because flexibility is inherent in a discretion. It is enough that the citizen should know the consequences which may well result from a particular course of action.’ (para 141).

Finally, the court suggested that the argument being put forward was for so much detail in the policy as to be impractical. Again, as on the constitutional points, these positions seem to be a more orthodox account of the problems than set out in Purdy. An appeal is anticipated and it will be interesting to see how the constitutional issues play out in the higher courts.

Jonathan Montgomery

Southampton’s ‘Gillick’?

In 2012, Reproduction, Testing project on February 27, 2012 at 9:37 pm

Just a quick post: Earlier this month news ‘broke’ of young women being offered contraceptive advice and services in Southampton, prompting comment in the local media. This evening, an interview with Prof. Roger Ingham, Director of the Centre for Sexual Health Research, was shown on the BBC One programme Inside Out South, in a section of the programme dedicated to this story (first 5 mins of the programme, available on iPlayer for the next week). Such debates are, of course, not new – see GillickThe Government has announced plans to publish a new sexual health policy document in 2012, but whether either its publication or the concerns of parents will lead to further legal challenges remains to be seen.

Steps in a right to die test case

In 2012, Death and dying, Testing project on February 9, 2012 at 11:40 am

In a recent article, ‘Guarding the gates of St Peter: life, death and law making’ (2011) Legal Studies 31, (4), 644-666, I argued that the decision of the House of Lords in R (Purdy) v DPP  [2009] UKHL 45 raised some serious constitutional problems about the role of judicial law making. Following that case the Director of Public Prosecution issued new guidelines on the decision to prosecute, but I have suggested that these have been essentially designed to distinguish suicide from homicide, not homicide from euthanasia. As Hazel Biggs has argued, they are therefore ‘largely ineffectual in the broader context of the debate about assisted dying’  (‘Legitimate compassion or compassionate legitimation? Reflections on the policy for prosecutors in respect of cases of encouraging or assisting suicide’. (2011) Feminist Legal Studies, 19, (1), 83-92.  We should not therefore be surprised that they have already given rise to challenge in the courts by people who feel that the law on assisted dying is unacceptable.

Tony Nicklinson’s case has already been before the courts twice on preliminary issues. First whether the DPP’s guidance exposed those giving advice to him on his options to the risk of prosecution because it identified professional involvement as an indication in favour of prosecution. In this first step, the court permitted doctors and lawyers to help him prepare his case and talk to individuals or organisations – including Dignitas in Switzerland – which might be able to assist him: “the solicitors may obtain information from third parties and from appropriate experts for the purpose of placing material before the court and that third parties may co-operate in so doing without the people involved acting in any way unlawfully”. In the second step, on which a ruling is awaited, the Ministry of Justice has sought to have his challenge to the law struck out as having no realistic prospect of success because the law is clearly established and only Parliament could change it.  We await the judgment of Charles J on this matter.

Jonathan Montgomery

HIDDEN LAW-MAKERS Law School Seminar

In 2011, Testing project on November 15, 2011 at 5:55 pm

In a seminar on 2 November 2011 Jonathan Montgomery, Caroline Jones, and Hazel Biggs identified two different aspects of law-making that needed to be examined. The first was descriptive – how law is made. The second was normative – the framework within which to critique law making process & judge the legitimacy of laws. In relation to the first, some law making was highly visible (e.g. by Parliament and the judiciary), some was traceable in documents such as soft law (codes of practice and guidance), but others such as settlement cultures and legal advice that influenced norms of practice was not.

There was an expected process for the production of legislation through green and white papers, possibly supplements be consultations (e.g. in relation to the legislation governing human fertilisation and embryology). A framework for critique has been developed by Caroline Jones to consider the transition between consultations and Government responses. Judicial decision making has been widely studied. The orthodox account of judicial defence to Parliament, as offered by Lord Browne-Wilkinson in the Bland decision, is known to be disingenuous and theories of adjudication (such as those offered by Ronald Dworkin) have tried to provide a normative defence of judges’ work. It is far from clear, however, that they have adequately addressed the how judges choose to take expansive or narrow approaches to the cases before them, leaving some aspects of judicial law-making substantially hidden.

In relation to ‘intermediate authorities’ (such as the GMC or HFEA) entrusted with developing guidance both the description of the ‘law making’ processes and the appropriate normative principles are under-developed. It is even less clear how one should assess the significance of those who bring cases to court with a view to changing the law. Does it matter how personal their interest is? What questions need to be asked about legitimacy or representative authority of litigants in cases such as those brought by the British Pregnancy Advisory Service (BPAS v DH [2011] EWHC 235 (Admin))or Bruno Quintavalle on behalf of the Pro-Life Alliance and Josephine Quintavalle of Comment on Reproductive Ethics where a particular policy stance is being promoted?

This seminar explored some of the learning from our seminar in May 2011, funded by the Modern Law Review, and is part of our work developing a paper for publication.