T v Secretary of State for Justice

JurisdictionEngland & Wales
JudgeSir Brian Leveson P
Judgment Date07 December 2017
Neutral Citation[2017] EWHC 3181 (Admin)
CourtQueen's Bench Division (Administrative Court)
Docket NumberCase No: CO/1319/2017
Date07 December 2017

[2017] EWHC 3181 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

THE PRESIDENT OF THE QUEENS BENCH DIVISION

( Sir Brian Leveson)

Mrs Justice Whipple D.B.E.

Case No: CO/1319/2017

Between:
T
Claimant
and
Secretary of State for Justice
Defendant

Paul Bowen QC (instructed by Bindmans LLP, London) for the Claimant

James Strachan QC and Benjamin Tankel (instructed by GLD, London) for the Defendant

Hearing dates: 21 November 2017

Sir Brian Leveson P
1

This is the judgment of the Court to which we have both contributed.

Background

2

T (who has been granted anonymity to prevent his identification) suffers from multiple systems atrophy, a rare and devastating neurological disorder affecting the body's autonomic functions. He is now 55 years old and lives in a nursing home. He is bedbound, has poor mobility and is reliant on 24-hour care. His condition will deteriorate over time, to the point of death. Although the analysis that follows is inevitably based on our understanding of the law, it is important to underline that he has our profound sympathy and respect.

3

T brings this application for judicial review, seeking a declaration of incompatibility under s. 4(2) of the Human Rights Act 1998 in relation to the prohibition on assisted suicide contained in s. 2(1) of the Suicide Act 1961 ("section 2"). Permission was granted by Supperstone J on 22 May 2017. Since then, the Divisional Court has handed down judgment in another challenge to section 2: Conway v Secretary of State for Justice [2017] EWHC 2447 (Admin). In that case, the challenge failed and permission to appeal was refused. Mr Conway has since applied to the Court of Appeal for permission to appeal and that application has been listed for an oral hearing.

4

This application is pursued on a different basis and, in order to pursue it, Mr Paul Bowen Q.C. (acting for T) applies for permission, by way of directions, to cross-examine certain witnesses whose evidence has been lodged on behalf of the Secretary of State for Justice ("the Secretary of State"). This judgment deals only with that application.

5

For the reasons set out below, we consider that one part of the application raises matters of real substance which go far beyond ordinary issues of case management which can be resolved by the type of hearing that we have held. We therefore propose adjourning that part of the application to be resolved by way of preliminary hearing. We dismiss the remaining part of the application.

The Application

6

Although a number of issues were initially raised in advance of this hearing listed before us, in the event, the only matter left for us to resolve concerned the application by Mr Bowen for a direction that certain of the Secretary of State's witnesses should be tendered for cross-examination. That there is such a discretion is clear: see R (Jedwell) v Denbighshire CC [2016] PTSR 715 at [52] for a recent statement of the principle, and Mr Bowen accepts that in judicial review the discretion is to be exercised sparingly and only in exceptional cases. This is due to the fact that it does not represent the usual position in judicial review where the Court determines the issues on the written evidence before it. However, he argues that this is a case where the Court should take that unusual course.

7

Mr James Strachan Q.C., who appears with Mr Benjamin Tankel for the Secretary of State, argues that Mr Bowen has not put forward any cogent basis for allowing any cross-examination, the scope and purpose of which has not been adequately stated. Further, he submits that it is not appropriate for this Court to hear oral evidence because the issues of opinion and policy which underpin the challenge are within the exclusive remit of Parliament to determine.

8

As it currently stands, the evidence which is sought to be challenged by way of cross examination broadly falls into two groups. We consider each separately, because the arguments apply differently to each group or type.

T's condition

9

The first type of expert evidence is from palliative care experts going to T's specific circumstances including his current condition, his future prognosis, and palliative care options open to him now and in the future. So far, the Secretary of State has adduced evidence from two such experts (named at paragraph 4.2 of the proposed directions) but Mr Strachan has made it clear that if the application succeeds, consideration will necessarily be given to whether further evidence is required.

10

The first such expert is Dr Annabel Price. She is a consultant psychiatrist in liaison psychiatry at Addenbrooke's Hospital and associate specialist director for palliative care at the Cambridge Institute of Public Health. She has prepared a report dated 30 October 2017, in which she answered a number of questions specific to T, and gave her view on the palliative care options which might be open to him and on his wish for hastened death. The second such expert is Professor Rob George who is a professor of palliative care at King's College London and medical director of St Christopher's Hospice. He has recently concluded a term as President of the Association for Palliative Care Medicines of Great Britain and Ireland. He has prepared a report dated 15 November 2017 in which he gives his opinion about T's condition and prognosis, and the palliative care options which may be open to him.

11

The application made by Mr Bowen is to cross-examine both of doctors on a number of issues. Taken from the proposed directions, these are whether T has capacity to make a decision to end his own life, whether he has made a voluntary, clear and settled and informed decision that he wishes to have assistance to die, and whether he has a grievous and irremediable medical condition which causes him enduring suffering which he finds intolerable.

12

Mr Strachan submits that none of these issues is in dispute. It is accepted that T has capacity, that he wishes to have assistance to die and that he finds his situation intolerable. Indeed, the Secretary of State goes further and confirms a general acceptance of the case advanced on the facts in so far as they relate to T's condition and outlook. Thus, he says, the proposed cross-examination would serve no good purpose and should not be allowed.

13

So far as these witnesses are concerned, we agree with Mr Strachan. On the basis of what we have heard, we cannot see that the Court would be assisted by hearing oral evidence from these two experts on the areas suggested by Mr Bowen: there is simply no dispute about those issues. That there are palliative care options available for T, which he may not at present, or ever, find acceptable, is undisputed. Cross-examination of the witnesses, to put to them why it is that the suggestions are not palatable to him, will not assist. Further, the Court can take as the basis on which the case should proceed T's own evidence as to his wishes and grievances, and his view of the situation which confronts him. To the extent the application relates to this evidence, it is refused.

The Policy

14

The second type of evidence which Mr Bowen seeks to challenge is that offered by Professor the Baroness Finlay of Llandaff; this is the subject of paragraph 4.1 of the Claimant's proposed directions. Baroness Finlay is a palliative care consultant who is an honorary professor at Cardiff University. She served on the House of Lords Select Committee on the Assisted Dying for the Terminally Ill Bill in 2004–5 (the "House of Lords Select Committee") and later co-founded the think-tank Living and Dying Well. She has a wide range of professional interests associated with end of life issues.

15

Baroness Finlay prepared a report dated 1 November 2017. That report addresses various issues, some of which relate specifically to T (and, we conclude, that part of her evidence falls into the first type of evidence in relation to which cross-examination will not be permitted, see above). Other issues relate to the wider debate about assisted suicide, including a commentary on published data from other jurisdictions where assisted suicide and/or voluntary euthanasia is lawful. We will refer to this, for want of a better term, as "policy" evidence.

16

In his proposed directions, Mr Bowen suggests that the purpose of cross—examining Baroness Finlay would be to test her views on:

"… the validity of the costs, risks and benefits upon which the Defendant relies for the absolute prohibition on assisting suicide, namely (a) the risks to vulnerable people, in particular the risks of life-ending acts without explicit authorisation (LAWER), with reference to empirical experience from jurisdictions where assisted suicide is lawful, including the number of people who will be affected; (b) the risk of a negative impact on palliative care; (c) the risk of a negative impact on doctor-patient relationships and public trust in the public health system; (d) the risk of negative impact upon the ethical principle of the sanctity of life, with particular emphasis on the ethical distinctions between end of life practices that are currently lawful and those that are unlawful"

He also wishes to put his case for relaxing the prohibition and for asserting that reliable safeguards can be put in place to meet any risks.

17

At the hearing, by way of example, Mr Bowen suggested that he would wish to cross-examine Baroness Finlay on the following passages of her report, amongst others:

i) Para 29, where she discusses vulnerability at end of life;

ii) Para 41, where she talks of unbearable suffering being a subjective experience incapable of objective measurement;

iii) Para 46, where she disputes the adequacy of the proposed safeguards as a means of protecting the vulnerable.

18

In each of these paragraphs, and...

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