Judicial Review Update July 2014



This article was first published by Solicitors Journal in April 2014, and is reproduced by kind permission. Click here to view the article.

If you haven’t heard Government’s jibing of Article 8 of the European Convention on Human Rights in recent years, then it will come as a shock that it could be dubbed one of the most “abused” rights when you collate articles over the past three years.[1]  Its operation has been particularly lamented in the context of immigration and extradition law, however, in this last quarter, the parameters of Article 8 have been tested in the medical treatment sphere.

In McDonald v. United Kingdom ECHR 141 (2014), the European Court of Human Rights dealt with a judicial review that had gone up through the domestic courts, concerning the right of a local authority to withdraw or amend care support where the applicant’s circumstances remain the same but a cheaper alternative is available.

Elaine McDonald (67) suffered from severely limited mobility and, after hospitalisation due to a stroke in 1999, she required support to continue living on her own in her Earl’s Court flat. In 2008, Ms McDonald was assessed by the Royal Borough of Kensington and Chelsea as having an eligible need for support during the day and night and initially a sleep-in care worker was provided for seven nights a week. After a meeting with the local authority in December 2008, a formal decision was taken to reduce the applicant’s weekly care on the basis that Ms McDonald could be provided with incontinence pads in lieu of night-time care.

The applicant complained that this reduction disproportionately interfered with her right to respect for her family and private life under Article 8 ECHR. In particular, she submitted that being forced to use incontinence pads exposed her to considerable indignity.

The Court referred to previous case law to reaffirm the definition of “private life” and reference was made to the R (Pretty) v DPP [2002] case, concerning assisted suicide, to demonstrate that Ms McDonald was faced with living conditions which conflicted with her “ideas of self and personal identity”. Thus it was concluded that the violation fell within the scope of Article 8 ECHR and that the reduction in night-time care could have an impact on the applicant’s enjoyment for her private life.

REiterating the decisions of the Court of Appeal and Supreme Court, the ECtHR confirmed a breach of UK statutory duties between November 2008 to November 2009

to provide the applicant with the necessary assistance between the first Care Plan Review and the decision to reduce her night-time care, the UK Court of Appeal and the Supreme Court ultimately rejected the claim for interference with the applicant’s private life and the local council’s approach was deemed to be both proportionate and justified from November 2009 onwards.  We see at 54 et seq the ECtHR reiterating the state’s margin of appreciation in the allocation of state resources.  Arguably the decision is indicative of a changing less interventionist culture in the ECtHR particularly in relation to qualified rights such as Article 8 following the dissatisfaction expressed about the margins of appreciation given to States have not been previously accounted for in the judgments of the Court.  However, challenges directly to the allocation of resources is so controversial across Europe, it would be a bold move for the Court to stray beyond the breaches accepted by the national courts.

Moving from improving the quality of life to the end of it, the most recent challenge concerning the right to die concluded in the Supreme Court in this last quarter. In R (on the application of Nicklinson and another) (Appellants) v Ministry of Justice (Respondent); R (on the application of AM) (AP) (Respondent) v The Director of Public Prosecutions (Appellant) [2014] UKSC 38, the Claimant’s sought to argye that the current law, section 2 of the Suicide Act 1961, was incompatible with the right to privacy and dignity under Article 8.  The effect of the section made it a crime to encourage or assist suicide. The case concerned whether the current law, would have granted such a declaration in these proceedings, particularly where the means of death was one that could have been autonomously operated by the disabled appellant, leaving no doubt as to the voluntary and rational nature of his decision.

Mr Nicklinson suffered with locked-in syndrome and died from self-starvation before the case reached the Court of Appeal. His wife continued the action. He was completely paralysed after a catastrophic stroke and had applied to the High Court for either a declaration that it would be lawful for a doctor to assist him in terminating his life, or, if that was refused, a declaration that the current state of the law was incompatible with his right to a private life under article 8 of the Convention.

Mr Lamb was added as a claimant in the Court of Appeal. Mr Lamb, paralysed after suffering a car crash.

The Supreme Court held, unanimously, that the question whether the current law on assisted suicide was incompatible with Article 8 lay within the United Kingdom’s margin of appreciation and this is therefore a domestic question for the UK courts to decide under the Human Rights Act 1998. It was agreed that Article 8 involved the consideration of issues which Parliament was inherently better qualified than the courts to assess, and that under present circumstances the courts should respect Parliament’s assessment.

The second appeal concerned the case of an individual known as Martin who suffered a brainstem stroke in August 2008 which paralysed him. Martin wished to travel to Switzerland to seek relief through the Dignitas assisted suicide service. Proceedings were initiated to seek an order from the DPP that the 2010 Policy should be amended to enable carers to assist suicide without the risk of being prosecuted.

The Supreme Court unanimously allowed the DPP’s appeal. While the claim was dismissed in the High Court, it was partially successful in clarifying that the 2010 Policy was not sufficiently clear in relation to healthcare professionals. The exercise of judgment by the DPP, the variety of relevant factors, and the need to vary the weight to be attached to them according to the circumstances of each individual case are all proper and constitutionally necessary features of the system of prosecution in the public interest.

The Administrative Court also had to grapple with the potential beginnings of life vis-à-vis Article 8 in Rose, R (on the application of) v Thanet Clinical Commissioning Group [2014] EWHC 1182 (Admin). The Claimant sought to have her eggs frozen prior to her undergoing a bone marrow transplant and chemotherapy to control her Crohn’s disease. There was a risk that following treatment for her condition, she would be rendered infertile. However, perhaps unsurprising for a 25 year old female, she wanted to secure the best chance of having children in later life and, being on benefits and so unable to afford the procedure herself, she sought funding to have her eggs extracted and frozen (oocyte cryopreservation). Her application was refused.  Although the NICE guidelines seemed to suggested that oocyte cryopreservation should be offered to women about to go through the same sorts of treatment that the Claimant was about to, in MArch 2013the triage group considering the Claimant’s case concluded that the Defendant’s current policy relating to Assisted Reproductive Therapies precluded the funding of oocyte cryopreservation other that in exceptional circumstances and there was nothing clinically exceptional about the Claimant’s case, as it may have been considered that women undergoing cancer treatments, for instance, would benefit from oocyte cryopreservation. The Defendant then in April 2013 introduced a new policy in light of the NICE guidelines disagreeing with its view and maintaining an exceptionality criterion. The Claimant argued a number of points, including that the Defendant had behaved irrationally for failing to properly take into account the NICE guidelines, the Defendant breached its duty under section 149 of the Equality Act 2010 and breached Article 8 and Article 12 when read with Article 14. The last two being comparable arguments under differing legal regimes.

Aside from finding that the April 2013 policy was unlawful because merely disagreeing with NICE’s evidence on the effectiveness of oocyte cryopreservation, the claimant’s challenged with dismissed. The triage group’s role was solely to determine clinical exceptionality and not to question the Defendant’s policy. The Court found that the discrimination arguments were based on a flawed assumption that men and women should be treated similarly even though women only produce oocytes and men only produce semen. The facts according to the Judge was that ultimately there were fundamental biological differences that did not allow for gamates to be treated or considered equally. Thus the Equality Act and Article 8 arguments failed.

Canvassing the decisions in the treatment field, the abuse of Article 8 is clearly not as prevalent as the Government might have you believe. Whilst the challenges presented were overall successful, it cannot be denied that some gains were made in understanding where the boundaries of article 8 lie, beneficial for both Claimants and Defendants alike.  Thereby confirming the comments in the House of Lords on the reading of the Government’s proposed changes to judicial review, where Lord Brown commented that “the use of judicial review has to my mind undoubtedly raised the standards of public decision-making in recent years.” In such circumstances, it ought not to be said that challenges based on Article 8 has been abused.

[1] http://www.theguardian.com/uk/2012/apr/08/may-immigrant-abuse-family-life; http://www.dailymail.co.uk/news/article-2320988/New-law-stop-criminals-abusing-human-rights-act-Ministers-target-migrants-family-life-loophole.html; http://www.telegraph.co.uk/news/uknews/immigration/9875052/Theresa-May-Ill-bring-in-new-law-to-end-human-rights-farce.html; http://www.express.co.uk/news/uk/433498/Scrapping-Human-Rights-Act-is-a-priority-for-the-Tories-vows-Theresa-May; http://www.telegraph.co.uk/news/uknews/law-and-order/10777503/Chris-Grayling-We-must-stop-the-legal-aid-abusers-tarnishing-Britains-justice-system.html.


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