HEAL UoS

Posts Tagged ‘Test Case’

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.

 

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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

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