R AB v Human Fertilisation and Embryology Authority
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Carr |
| Judgment Date | 14 January 2014 |
| Neutral Citation | [2014] EWHC 1528 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/17731/2013 |
| Date | 14 January 2014 |
[2014] EWHC 1528 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mrs Justice Carr
CO/17731/2013
Mr R Alomo (instructed by Crowther Solicitors) appeared on behalf of the Claimant
Miss K Gallafent (instructed by Morgan Cole, Cardiff) appeared on behalf of the Defendant
On the evening of Christmas Eve 2013, Globe J heard an urgent telephone application on behalf of the Claimant in this matter for interim relief. I have made an anonymity order in respect of the Claimant, who is to be described as "AB", and her partner, who is also now joined as an interested party to this claim as "P". The Defendant ("the Authority") is the statutory body responsible for, amongst other things, making provision for the regulation of the procedures of human fertilisation and for the keeping and use of human embryos and the storage and use of gametes.
The urgent application sought the following relief: firstly, an order permitting the hospital in question ("the Hospital") to retrieve P's gametes on the instructions of AB and, secondly, an order requiring the authority to issue a special direction to the hospital authorising the hospital to keep the gametes from P ancillary to and pending the outcome of this claim.
At the stage of this application the named Defendants were the Hospital and the Authority only. The circumstances leading to the application were as follows. AB is the Canadian common-law wife of P. It is said that they have been in a relation since 2006. They are not married under English law but it is said that in October 2013 P proposed marriage to AB with a ring which proposal was accepted. On 2 December 2013, P sadly suffered a cardiac arrest. He was at the time of the application in December in the intensive care unit of the Hospital. The Court was at the time of the urgent application informed that those in charge of P's treatment and care had advised AB that he was then in a permanent vegetative state, although he was out of a coma with a tracheotomy. The Court was told that P might pass away at any moment.
On 4 December 2013 AB enquired about the possibility of retrieving gametes so that she should use them to conceive and bear P's children. There was and never has been any suggestion that P has ever in terms agreed to this, but it is said, and was said on behalf of AB, that she was in no doubt that it is what he would have wanted had he known that he would be in his current state. AB was advised that a court order would be required before there could be any retrieval and storage of gametes from P. She was told this was possible in the absence of consent from P with a court order.
On 23 December 2013 AB instructed solicitors who, on the same day, sought a special direction from the Authority. On 24 December 2013 the Authority refused to issue such a special direction authorising the retrieval and storage of gametes from P. It referred to various documents in its refusal, stating in terms that the Authority had no power to issue the special direction sought. In particular, gametes could only be stored if effective consent exists for such storage. Gametes could only be harvested in circumstances where they could lawfully be stored and the Hospital in question was not appropriately licensed.
Hence the application in the evening of 24 December 2013. On that occasion, Globe J was informed that P had suffered four cardiac arrests since 1 December 2013 and that the Hospital had directed that P was not to be resuscitated in the event of any further cardiac arrest. Globe J made an order as follows:
1. That the Hospital be permitted on the instructions of AB to retrieve gametes from P provided that in so doing all due respect and dignity was afforded to P and provided that the procedure was carried out by a consultant or such other medical professional or clinician with experience of relevant procedures and who would be able to ensure the future viability of the gametes retrieved.
2. The Authority should forthwith on service of the order issue a special direction to the Hospital authorising the latter to keep the gametes so retrieved ancillary to and pending a decision on this claim.
On 30 December 2013 AB issued a claim form and a formal application for the relief in fact already obtained from Globe J, that latter application being effectively redundant. The claim form seeks to challenge the Authority's decision of 24 December 2013. On 2 January 2014, pursuant to the liberty to apply for a provision in the order, the Authority applied to discharge or vary paragraph 2 of the order in particular on the following grounds. Firstly, under section 4.1(a) of the Human Fertilisation and Embryology Act 1990, gametes may only be stored in pursuance of a license and in accordance with the requirements for effective consent. Secondly, there was no effective consent. Thirdly, the Authority had no power to issue a special direction authorising storage pending an application. Fourthly, the Hospital was not licensed as necessary.
Although the Authority's challenge is only to paragraph 2 of the order, the Authority submits that, in reality, both limbs of the order would fall to be discharged because without storage, retrieval is no use and because it would be unlawful to retrieve gametes if they could not lawfully be stored. The Authority's position, in my judgment correctly, identifies that discrete issues of lawfulness relate to paragraph 1 arising out of P's position under the Mental Capacity Act 2005.
It appears from a witness statement from AB's solicitor dated 10 January 2014 that, despite the order of 24 December, no gametes have yet been retrieved from P. Two clinical issues arose: firstly, diagnostic tests were necessary to make sure, amongst other things, that P was free from CJD; and, secondly, the absence of a licence on the part of the hospital. The tests have now been carried out and have come back clear. As for licensing, it is said that an alternative hospital has offered its services and has expressed itself as willing to store the gametes upon an order of the court, or satisfaction from the Authority that no criticism would be made of it if it so did.
Regrettably in my judgment, the witness statement lodged for this latest hearing on behalf of AB, did not update the court as to P's latest medical position. There has in fact been a material alteration and, happily, stabilisation of P's condition. For AB it is said that attempts have been made on her behalf to obtain information from the hospital, but as will become apparent, some of the updating information must have been within the knowledge of AB herself. It was quite wrong for the court, through AB herself, not to be updated as to P's medical condition.
It is only from the Authority's skeleton argument received after 4.00 pm yesterday afternoon that the Court was apprised of the latest position in relation to P. P has been transferred from the intensive care unit, and was so transferred, during the week of 30 December. He was transferred to a medical ward at the hospital. His condition is now said to be stable although there are still some issues as to care. He remains with a tracheotomy and self-ventilating and is being fed through the nose with a gastric tube. The "do not resuscitate" order has been lifted until the outcome of this claim. Moreover, it is planned to site a gastric tube for longer-term feeding on P when he will be discharged to longer-term nursing care. The results of the tests demonstrate that that is a step that can now be taken. It is also apparent that, as would be obvious in any event, in broad terms it is probably in P's best interests for a decision on this claim to be made as soon as possible.
The distance between the parties is now restricted to a disagreement as to whether the interim relief ordered by Globe J on 24 December should be discharged outright or simply made the subject of a stay, pending the outcome of a full hearing which I have just directed in a previous ruling, should be the subject of a rolled-up expedited hearing to take place in the week commencing 3 February 2014.
I have reached the clear conclusion that the interim relief ordered by Globe J should be discharged outright and I have reached that conclusion for the following reasons. Firstly, in my judgment, that the interim relief sought was not interim relief or an order which ought to have been sought from the court as a matter of urgent interim relief or otherwise. Firstly, it is common ground that the first step that ought to have been taken was consideration of P's best interests in the obtaining of an order from the Court of Protection. As I have said, it is now common ground that for any judicial review claim in relation to the decision of 24 December 2013 properly to arise, an order from the Court of Protection is a necessary step.
The second reason why I have reached the conclusion that there should be a discharge and not a stay is because the premise of the order of 24 December 2013 has altered and altered materially. The urgency that was present then does not appear any longer to exist. As I have identified, it appears that P's condition has now stabilised, whilst no doubt the position is still grave and P remains extremely ill. The lifting of the "do not resuscitate" order in particular means that the absolute urgency that presented itself on 24 September no longer exists.
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