This is a guest post by Sir James Munby, and it follows on from earlier posts (listed in the introduction) about the proposed Assisted Dying legislation currently being considered by Parliament.
Introduction
This is the fifth paper I have written on this topic, all published on the website of the Transparency Project:
(1) On 30 October 2024 Assisted Dying: What Role for the Judge? This was written before the text of the Terminally Ill Adults (End of Life) Bill presented by Kim Leadbeater MP in the House of Commons on 16 October 2024 had been published. Accordingly I focused on the proposals for judicial involvement in the scheme set out in the Assisted Dying for Terminally Ill Adults Bill introduced by Lord Falconer of Thoroton in the House of Lords on 24 July 2024. In that paper I concluded that:
“unless all of my concerns are addressed and resolved – and I doubt they can be – there would appear to be insuperable obstacles to the proposal for judicial involvement.”
(2) On 14 November 2024 Assisted Dying: What Role for the Judge? Some Further Thoughts. This was written after the Leadbeater Bill had been published on 11 November 2024. I considered the proposals for judicial involvement in the process as set out in clause 12 of the Leadbeater Bill. My conclusion was that:
“All in all, in relation to the involvement of the judges in the process, the … Bill falls lamentably short of providing adequate safeguards … Despite it being promoted by its supporters as an important and valuable safeguard in which the public can have confidence, the fact is that the architects of the … Bill, however much they may protest otherwise, have chosen to promote a profoundly unsatisfactory scheme for judicial involvement: a scheme which does not provide for an open and transparent process but, on the contrary, permits a secret process which can give us no confidence that it will enable the court to identify and prevent possible abuses.”
I also considered the impact the proposed judicial involvement would have on the judicial system and the administration of justice. Having analysed the implications if the case-load was to be as Ms Leadbeater had herself suggested was possible, I asked the question “Where are the judges to be found.”
(3) On 6 December 2024 Assisted Dying: What Role for the Judge? More Thoughts. This was written following the second reading debate on 29 November 2024 and stands as my definitive analysis of the scheme in clause 12. I reiterated the conclusions as summarised in my previous paper and expressed the key point as follows:
“I can put the point very starkly: the process provided for in clauses 12(4), 12(5) and 12(6) is simply not apt to enable the judge to perform his function as mandated by clauses 12(2) and 12(3).”
I provided further calculations based on a variety of possible case-loads. As previously, I asked: “Where are the judges to be found.”
(4) On 21 February 2025 Assisted Dying: What Role for the Tribunal? Thoughts on the Latest Proposals. In this paper I considered the question again in the light of the amendments to clause 12 proposed by Ms Leadbeater on 13 February 2025. Put shortly, what Ms Leadbeater proposed was the deletion of clause 12 in its entirety and the substitution for the judge of a tribunal, an Assisted Dying Review Panel, supervised by the Voluntary Assisted Dying Commissioner. My focus was on the proposals in relation to the functions and procedures of the panels.
In that paper I set out in tabular form a comparison of the previous scheme, providing for judicial involvement, and the proposed new scheme, providing for a panel:
- Table 1: This dealt with the key documents to be put before the judge or panel, setting out in parallel columns (1) the relevant parts of Schedule 2 of the Bill as originally drafted (the forms of statement given by the coordinating doctor which would be put before the High Court) and (dealing with the same subject matter) (2) the proposed amendments (Amendments 194-196) providing for the deletion of Schedule 2 and its replacement by the amended provisions of clause 7 of the Bill.
- Table 2: This dealt, in parallel columns, with (1) the functions of the judge as set out in clauses 12(2) and (3) of the Bill and practice and procedure before the judge as set out in clauses 12(4)-(6) of the Bill and (2) the functions of the panel as set out in NC [new clause] 16(2) and (5) and Practice and procedure before the panel as set out in NC16(3)-(4) and in NS [new schedule] 2 paragraphs 6, 8 and 9.
In relation to Table 2, I noted that the function of the panel as defined in NC16(2) was, with only one slight amendment, precisely the same as the function of the High Court as defined in clauses 12(2) and (3).
But, as I pointed out, the process mandated for the panel in NC16(4) and NS2 6(1) and 9 differed from that mandated for the High Court in clauses 12(5) and (6) in a number of respects. These changes, I said, were to be welcomed, so far as they went. It was, however, important to recognise, I added, that they did not, in my opinion, go anything like far enough.
I had previously pointed out in my third paper that the Bill as originally drafted had nothing whatever to say about two vital matters:
- If there was to be a hearing, was this to be in public or in private? Were there to be reporting restrictions? Were the identities of any of the participants, in particular the patient, the witness and the countersigning doctors, to be anonymised?
- Should the judge be required to give a judgment in every case and be required to publish the judgment?
As I have said in previous papers, I was, and I remain, strongly of the view that the integrity of the process and the maintenance of public confidence demand that there be a hearing in public in every case, and with an absolute minimum of reporting restrictions; that there should be no anonymisation of any of the participants (except, perhaps, for the patient during his or her lifetime); and that the judge (now, the panel) must be required to give and publish a judgment in every case. I said there can be no room here for secrecy or concealment. If there was to be a judicial process (or, now, a quasi-judicial process), it must be open and transparent.
To an extent these issues were addressed in NS2 6 and NS2 9 but, it has to be said, most inadequately: as I said in my fourth paper, the new provisions in NS2 6 (panel determinations to be in public) and 9 (reasons to be given in writing) themselves raised further questions. I shall return to this point below.
In my third paper, as we have seen, I had put the fundamental point very starkly:
“the process provided for in clauses 12(4), 12(5) and 12(6) is simply not apt to enable the judge to perform his function as mandated by clauses 12(2) and 12(3).”
In this fourth paper, I said that, despite the various improvements I had noted, this remained my assessment in relation to what was now proposed: “The process provided for in NC16(3) and (4) is simply not apt to enable the panel to perform its function as mandated by NC16(2).”
(5) Now, on 30 April 2025 Assisted Dying: What Role for the Panel? Thoughts on the Latest (Amended) Proposals. I consider the extent to which these concerns have been met following the line-by-line scrutiny of the Bill in Committee. For this purpose I set out in tabular form a comparison of the scheme as embodied in the amendments proposed on 13 February 2025 and the scheme as now embodied in the Bill as amended in Public Bill Committee and printed on 26 March 2025.
- Table 1: This deals with the key documents to be put before the panel, setting out in parallel columns, on the right-hand side (reproducing the materials set out in Table 1 in my previous fourth paper) the amendments proposed on 13 February 2025 and, in the left-hand column, the corresponding provisions now to be found in clause 9 of the Amended Bill of 26 March 2025.
- Table 2: This deals, in parallel columns, with, on the right-hand side, the materials set out in Table 2 in my previous paper relating to the functions of the panel and practice and procedure before the panel, as set out in the amendments proposed on 13 February 2025 and, in the left-hand column, the corresponding provisions now to be found in clause 15 and Schedule 2 of the Amended Bill of 26 March 2025.
For ease of understanding the changes in each Table are highlighted by being shown in italic.
TABLE 1 : COMPARISON BETWEEN CLAUSE 9 OF THE AMENDED BILL and previous CLAUSE 7 (as amended)
| Extract from clause 9 | Extract from clause 7 (as amended) |
| (1) The coordinating doctor must, as soon as reasonably practicable after a first declaration is made by a person, carry out the first assessment. | (1) The coordinating doctor must, as soon as reasonably practicable after a first declaration is made by a person, carry out the first assessment. |
| (2) “The first assessment” is an assessment to ascertain whether, in the opinion of the coordinating doctor, the person— (a) is terminally ill, (b) has capacity to make the decision to end their own life, (c) was aged 18 or over at the time the first declaration was made, (d) is in England and Wales, (e) is ordinarily resident in England and Wales and has been so resident for at least 12 months ending with the date of the first declaration, (f) is registered as a patient with a general medical practice in England or Wales, (g) has a clear, settled and informed wish to end their own life, and (h) made the first declaration voluntarily and has not been coerced or pressured by any other person into making it. | (2) “The first assessment” is an assessment to ascertain whether, in the opinion of the coordinating doctor, the person— (a) is terminally ill, (b) has capacity to make the decision to end their own life, (c) was aged 18 or over at the time the first declaration was made, (d) is ordinarily resident in England and Wales and has been so resident for at least 12 months ending with the date of the first declaration, (e) is registered as a patient with a general medical practice in England or Wales, (f) has a clear, settled and informed wish to end their own life, and (g) made the first declaration voluntarily and has not been coerced or pressured by any other person into making it. |
| (3) After carrying out the first assessment, the coordinating doctor must— (a) make a report about the assessment (which must meet the requirements of regulations under subsection (4)); (b) … (c) if satisfied as to all of the matters mentioned in subsection (2)(a) to (h), refer the assessed person to another registered medical practitioner who meets the requirements of section 10(8) and is able and willing to carry out the second assessment (“the independent doctor”). | (3) After carrying out the first assessment, the coordinating doctor must— (a) make a report about the assessment (which must meet the requirements of regulations under subsection (4)), …, and (c) if satisfied as to all of the matters mentioned in subsection (2)(a) to (g), refer the assessed person to another registered medical practitioner who meets the requirements of section 8(6) and is able and willing to carry out the second assessment (“the independent doctor”). |
| (4) The Secretary of State must by regulations make provision about the content and form of the report. | (4) The Secretary of State must by regulations make provision about the content and form of the report. |
| (5) The regulations must provide that the report must— (a) contain a statement indicating whether the coordinating doctor is satisfied as to all of the matters mentioned in subsection (2)(a) to (h); (b) contain an explanation of why the coordinating doctor is, or (as the case may be) is not, so satisfied; (c) contain a statement indicating whether the coordinating doctor is satisfied as to the following— (i) that a record of the preliminary discussion has been included in the person’s medical records; (ii) that the making of the first declaration has been recorded in the person’s medical records; (iii) that the first declaration has not been cancelled; (d) be signed and dated by the coordinating doctor. | (5) The regulations must provide that the report must— (a) contain a statement indicating whether the coordinating doctor is satisfied as to all of the matters mentioned in subsection (2)(a) to (g); (b) in a case where the coordinating doctor is not so satisfied, contain an explanation of why they are not so satisfied; (c) be signed and dated by the coordinating doctor. |
As can be seen from Table 1 there is one significant and important change. In my previous fourth paper I was critical of the drafting of clause 7(5):
“Whereas amended clause 7(5)(b) requires the regulations to require the report to set out the doctor’s “explanation” if the doctor is not satisfied of all the matters referred to in amended clause 7(2)(a)-(g), amended clause 7(5)(a) omits that requirement if the doctor is satisfied. Why? Surely it is at least as important to have the doctor’s “explanation” in the one case as in the other; indeed, surely more so given the consequence – the potential death of the patient.”
That has now been remedied in the new clause 9(5)(b). This change is much to be welcomed and for two very different reasons: first, the obligation of the doctor to provide an “explanation” – to give reasons – will inevitably enhance the quality of his thinking and the reliability of his conclusions; secondly, it will provide the panel with enhanced insight into why the doctor has concluded as he has.
TABLE 2 : COMPARISON BETWEEN CLAUSE 15 and SCHEDULE 2 OF THE AMENDED BILL and previous NC16 and NS2
| Clause 15 | NC16 |
| (7) The panel— (a) must, if it is satisfied of all of the matters mentioned in subsection (2), grant a certificate to that effect (a “certificate of eligibility”); (b) must refuse to do so in any other case. | (5) The panel— (a) must, if it is satisfied of all of the matters mentioned in subsection (2), grant a certificate to that effect (a “certificate of eligibility”); (b) must refuse to do so in any other case. |
| (2) The panel’s function is to determine whether it is satisfied of all of the following matters— (a) that the requirements of sections 7 to 11 have been met in relation to— (i) the first declaration, (ii) the first assessment and the report under section 9 on that assessment, and (iii) the second assessment and the report under section 10 on that assessment; (b) that the person is terminally ill; (c) that the person has capacity to make the decision to end their own life; (d) that the person was aged 18 or over at the time the first declaration was made; (e)that before making the first declaration, but when the person was aged 18 or over, a registered medical practitioner conducted a preliminary discussion with the person; (f) that the person is ordinarily resident in England and Wales and has been so resident for at least 12 months ending with the date of the first declaration; (g) that the person is registered as a patient with a general medical practice in England or Wales; (h) that the person has a clear, settled and informed wish to end their own life; (i) that the person made the first declaration voluntarily and was not coerced or pressured by any other person into making that declaration. | (2) The panel’s function is to determine whether it is satisfied of all of the following matters— (a) that the requirements of sections 5 to 9 have been met in relation to— (i) the first declaration, (ii) the first assessment and the report under section 7 on that assessment, and (iii) the second assessment and the report under section 8 on that assessment; (b) that the person is terminally ill; (c) that the person has capacity to make the decision to end their own life; (d) that the person was aged 18 or over at the time the first declaration was made; (e) that the person is ordinarily resident in England and Wales and has been so resident for at least 12 months ending with the date of the first declaration; (f) that the person is registered as a patient with a general medical practice in England or Wales; (g) that the person has a clear, settled and informed wish to end their own life; (h) that the person made the first declaration voluntarily and was not coerced or pressured by any other person into making that declaration. |
| (3) Subject to the following and to Schedule 2, the panel may adopt such procedure as it considers appropriate for the case. | (3) Subject to the following and to Schedule (Assisted Dying Review Panels), the panel may adopt such procedure as it considers appropriate for the case. [See NS2 8 below] |
| (4) The panel— (a) must hear from, and may question, the coordinating doctor or the independent doctor (and may hear from and question both); (b) must (subject to subsection (6)) hear from, and may question, the person to whom the referral relates; (c) in a case to which section 19 applies, may hear from and may question the person’s proxy; (d) may hear from and may question any other person; (e) may ask any person appearing to it to have relevant knowledge or experience to report to it on such matters relating to the person to whom the referral relates as it considers appropriate. In paragraphs (a) to (c) the reference to hearing from or questioning a person is to hearing from them, or questioning them, in person or by live video or audio link. (5) Where the panel considers it appropriate for medical reasons, it may make provision for the use of pre-recorded audio or video material for the purposes of subsection (4). (6) The duty under subsection (4)(b) to hear from the person to whom the referral relates does not apply if the panel is of the opinion that there are exceptional circumstances which justify not hearing from that person. | (4) The panel— (a) must hear from, and may question, the coordinating doctor or the independent doctor (and may hear from and question both); (b) may hear from and may question the person to whom the referral relates or (in a case to which section 15 applies) their proxy (or both); (c) may hear from and may question any other person; (d) may ask any person appearing to it to have relevant knowledge or experience to report to it on such matters relating to the person to whom the referral relates as it considers appropriate. In paragraphs (a) and (b) the reference to hearing from or questioning a person is to hearing from them, or questioning them, in person or by live video or audio link |
| Schedule 2 | NS2 |
| 8(1) The Commissioner may give guidance about the practice and procedure of panels. (2) Panels must have regard to any such guidance in the exercise of their functions. | 8(1) The Commissioner may give guidance about the practice and procedure of panels. (2) Panels must have regard to any such guidance in the exercise of their functions. |
| 6(1) Panels are to determine referrals in public; but this is subject to sub-paragraph (2). (2) The chair of a panel may, at the request of the person to whom a referral relates, decide that the panel is to sit in private. | 6(1) Panels are to determine referrals in public (but this is subject to sub-paragraph (2)). (2) The chair of a panel may, at the request of the person to whom a referral relates, decide that the panel is to sit in private. |
| 9 Panels must give reasons, in writing, for their decisions. | 9 Panels must give reasons, in writing, for their decisions. |
In relation to Table 2, I note that the function of the panel as defined now in clause 15(2) is, in substance, precisely the same as the function of the panel as previously defined in NC16(2), and precisely the same as the function of the High Court as originally defined in clauses 12(2) and (3). It is to determine whether it is “satisfied” of certain matters, in particular:
“(b) that the person is terminally ill;
(c) that the person has capacity to make the decision to end their own life;
…
(h) that the person has a clear, settled and informed wish to end their own life;
(i) that the person made the first declaration voluntarily and was not coerced or pressured by any other person into making that declaration.”
In relation to the topics which are the particular focus of my concern, namely practice and procedure before the panel, it can be seen from Table 2 that the significant changes are those in clauses 15(4)(b),(c), (5) and (6):
- The new requirement in clause 15(4)(b) that the panel “must” hear from the person to whom the referral relates is very much to be welcomed. As I commented in my previous fourth paper “the absence of any requirement that the panel “must” hear from and question the patient is a quite extraordinary lacuna.” That said, the terms of the new clause 15(6) disapplying this requirement in “exceptional circumstances” are troubling.
- The omission in clause 15(4)(c) to provide that the panel “must” hear from a section 19 proxy is very troubling.
- The provision in clause 15(5) enabling the panel to have recourse to “pre-recorded” material where it is “appropriate for medical reasons” has the potential for undesirable unintended consequences if this power is exercised too frequently or in inappropriate circumstances.
- The inclusion in clauses 15(4) and (5) of references to an “audio link” and “audio material” have the undesirable consequence that the panel may sometimes only hear without being able to see a witness – particularly significant if it is only hearing and not seeing the person to whom the referral relates.
These are welcome changes so far as they go but again, in my opinion, they do not go anything like far enough. It is disturbing that so many of the points I made in my fourth paper have been either ignored or rejected.
As I have previously made clear, I say nothing at all about the essential merits or demerits of what is proposed in the Bill. That I leave to others. I confine myself solely to the proposal that there should be tribunal involvement in the process. I express no views as to the desirability or otherwise of the proposal that there should be tribunal involvement in the process. That is a matter of policy for determination by Parliament. My concern is to explore the details and implications if the Bill is to contain provisions for such involvement. My present focus, as in my previous paper, is therefore on the Assisted Dying Review Panel, not the Voluntary Assisted Dying Commissioner.
Despite the various improvements I have noted, my overall assessment in relation to what is proposed remains essentially unchanged: The process provided for in clauses 15(4)-(6) is simply not apt to enable the panel to perform its function as mandated by clause 15(2).
I can explain why I say this largely by reference to points already made in my previous papers. That the list of these points remains so lengthy, and in significant measure essentially unchanged from previous iterations, is eloquent testimony of the extent to which my concerns have been either ignored or rejected. That of course is the undoubted privilege of Parliament. But I cannot help noting that, so far as I am aware – and I shall happily be corrected – there has been no attempt at any stage (and certainly no successful attempt) to challenge either my reasoning or my conclusions. On the contrary, much informed professional discussion by the twitterati has supported my views.
I list ten points as to which I remain deeply troubled:
1 The Amended Bill makes clear that the application is to be made by the patient but is otherwise completely silent as to who (if anyone) should be joined as parties or notified of the proceedings. This is an astonishing omission for a number of vitally important reasons. Quite apart from all the other reasons why it might be thought desirable to make such provision in the Bill, the participation of others is necessary:
- if the process is to have that degree of rigour which is essential if it is to be capable of identifying and preventing possible abuses, and in particular be adequate to detect what may be very subtle external pressures, and
- if it is to command public confidence.
2 Moreover, the Amended Bill is entirely silent as to how the panel is to deal with the kind of issue exemplified by the Canadian case of AY v NB 2024 BCSC 2004, where the patient’s partner intervened and obtained an interim injunction because of concerns about what was happening. What if the patient’s partner and relatives, excluded from participation in the panel process, discover, only after the panel has granted a certificate under clause 15(7)(a), facts of the kind which in AY v NB prompted an eleventh-hour intervention by the Canadian judge? What are they to do? They cannot appeal. Can they somehow apply to the panel but which is now probably functus officio? Or can they apply to the Family Division and pray in aid the inherent jurisdiction? Or do they apply to the Administrative Court by way of judicial review? Who knows, and the Bill does not tell us.
3 Clause 9 sets out the form of the report given by the coordinating doctor which will be before the panel. The point is a simple one but vital. How is the panel to be “satisfied” in relation to each of the relevant matters, as demanded by clause 15(7), especially the crucial matters referred to in clauses 15(2)(b), (c), (h) and (i), merely because the doctor has stated his “opinion” or said that he is “satisfied” on these matters?
4 As a separate point, how is the panel to be satisfied in relation to the voluntary nature of the “application”, in contrast to the “declaration”, since that is a topic on which the doctors’ statements are necessarily silent?
5 The panel is given an extraordinary degree of discretion in relation to the process it is to adopt. The only mandatory part of the process (the only places where the word “must” appears) is in clause 15(4)(a), providing that “The panel … must hear from, and may question, the coordinating doctor or the independent doctor …”, and in clause 15(4)(b), providing that “The panel … must (subject to subsection (6)) hear from, and may question, the person to whom the referral relates.” Those apart, clause 15(4) provides only that the panel “may” do various things. Clause 15(4)(d) – “The panel … may hear from and may question any other person” – is quite properly expressed as a discretionary power, but why are the others not all made mandatory requirements? In particular, the absence of any requirement that the panel “must” hear from and question both doctors (and not just one) is very troubling, as are the terms of clause 15(6) and the absence of any requirement that the panel “must” hear from and question a proxy. Moreover, how is the panel to assess whether the application before it is voluntary if it does not hear from the patient?
6 Beyond what is set out in clauses 15(4)-(6), the Amended Bill is silent as to the process and procedures to be adopted. For example, is the panel to hear evidence on oath? Indeed, will the panel have power to administer an oath? I note, for what it is worth (consider the rule in Pepper v Hart [1993] AC 593), that at the twenty-third sitting of the Committee on 12 March 2025, Sarah Sackman, Minister of State at the Ministry of Justice, said (Hansard, col 1102):
“Under the Bill as drafted, a panel and the commission are not invested with powers of summons, and the evidence that is heard and requested is not conveyed under oath. It is not a court or a tribunal. Those provisions do not apply, so she is absolutely right. They can make the request, but they cannot compel someone to attend.”
Assuming that the Minister is correct in her analysis, is that state of affairs remotely acceptable?
Perhaps of even greater significance:
- The Amended Bill says very little about the procedures to be adopted for testing and, if need be, challenging the evidence.
- It says nothing about who should exercise that function; nor about the nature of any independent evidential investigation and nothing about who is to undertake this and who is to pay for it.
- It says nothing about what, if any, public funding arrangements there will be for the applicant, the two doctors, and any other parties or expert or lay witnesses.
7 As I have said repeatedly in my previous papers, there must be a rigorous procedure in every case for testing and if need be challenging the evidence, including an independent evidential investigation, perhaps by the Official Solicitor, of the kind discussed in Conway. There are two reasons why this is essential in every case:
- Without this, it will not be proper for a judge to be involved in the process as a member of the panel. For otherwise, the judge, and, indeed the panel, is little more than a rubber stamp providing a veneer of judicial approbation – and that is fundamentally unacceptable. I appreciate that there is a question (which I need not explore) as to whether the legal member of the panel is fulfilling a judicial function. For present purposes it matters not. A legal member of a panel who is a judge or former judge will inevitably be thought of as a judge and in this context it is the appearance to the general public that matters.
- Even more fundamentally, without a rigorous procedure of this kind the panel will not be able properly to exercise its functions as mandated by clause 15(2).
8 The point, ultimately, is very simple: How confident can we be that the procedures set out in clause 15 and elsewhere in the Amended Bill will be adequate to enable the panel to identify and prevent possible abuses and in particular be adequate to detect what may be very subtle external pressures? My answer is very simple. Only those who believe implicitly in the omniscience and infallibility of judges and of tribunals such as the panel – and I do not – can possibly have any confidence in the efficacy of what is proposed.
9 The provisions of Schedule 2 para 6 relating to hearings being in public are profoundly inadequate:
- Why is the decision under Schedule 2 para 6(2) to be taken by the chair of the panel and not by the panel collectively? It might be thought that both a psychiatrist and a social worker would have relevant expertise and insights when evaluating the potential impact on the patient of the hearing being in public.
- What criteria are to be applied in coming to a decision under para 6(2)?
- Will the media and legal bloggers be able to make representations before a decision is made under para 6(2) and, if so, what will be the relevant procedure? If not, why not?
These are matters that need to be made clear on the face of the Bill. They are too important to be left to the discretion of the panel or to any “guidance” given by the Commissioner under Schedule 2 para 8(1).
10 The provisions of Schedule 2 para 9 are equally unsatisfactory:
- To which “decisions” of the panel does Schedule 2 para 9 apply? Only to substantive decisions? Or to all decisions including interlocutory and procedural decisions? In particular, does Schedule 2 para 9 apply to decisions under clauses 15(5) and 15(6) and decisions whether or not to exercise the various discretionary powers under clause 15(4)? And, if not, why not?
- Does Schedule 2 para 9 apply to a decision under Schedule 2 para 6(2) – where the decision-maker is the chair, not the panel?
- Are the “reasons” given in accordance with para 9 to be published and, if so, subject to what if any redactions? If not, why not?
Again, these are matters that need to be made clear on the face of the Bill. They are too important to be left to the discretion of the panel or to any “guidance” given by the Commissioner under Schedule 2 para 8(1). I repeat, because it is so important, the point I have already made that the obligation to give reasons inevitably enhances the quality of a tribunal’s thinking and the reliability of its conclusions. So, it is vital that the obligation to give reasons under Schedule 2 para 9 is made explicitly applicable to all decisions, including all interlocutory and procedural decisions, made by either the panel or its chair.
I appreciate that some may point to the multidisciplinary membership of the panel and to an assumption that the function and process of the panel may (it is said) be inquisitorial rather than adversarial. Plainly, it might be thought, it is an advantage that the panel has a multidisciplinary membership, and it is often said that three heads are better than one, though one has to be conscious of the dangers of ‘group-think’. Yet it would be a mistake to think that either of these features of what is now proposed are sufficient to overcome the very real problems I have identified. They are not.
What remains crucial is the substance, not mere appearances. If the panel is to perform its function effectively and do more than just ‘check the paperwork’ – if it is to be the real safeguard intended by its proponents – then its processes must be much more thorough than is currently proposed.
I pause to take stock. All in all, in relation to the involvement of the panel in the process, the Amended Bill still falls lamentably short of providing adequate safeguards.
The very fact that the panel will include both a psychiatrist and a social worker as well as a lawyer is perhaps the clearest possible indication that the panel’s function is not simply to ‘check the paperwork’, for if that were its only task it could perfectly adequately be performed by a lawyer; moreover one doubts that either a psychiatrist or a social worker would be willing to participate if their only function was to ‘check the paperwork’ rather than exercising their professional skill and judgment. And that takes us to the nub of the problem, which can be illustrated by a very simple example. How is the psychiatrist member of the panel, exercising his professional skill and judgment, to be personally and professionally satisfied of the patient’s capacity without hearing from and questioning the patient? Surely any psychiatrist would be very troubled at the idea that he could be satisfied as to someone’s capacity without hearing from and questioning them. What is currently proposed seems to be a strange hybrid, which I fear is a recipe for serious potential problems.
Let us consider how an application to the panel could be dealt with by the panel in a manner entirely compatible with the requirements of clauses 15(4)-(6). The panel could:
- Decide the matter without hearing from the patient and with no input of any sort from the patient’s partner or relatives.
- Deal with the case in private – in secret – and without having to publish its reasons.
- Adopt a procedure which, beyond whatever little the panel is required to do in accordance with clauses 15(4)(a)-(b), involves neither testing nor challenging the evidence nor any independent evidential investigation.
In short, an application could be dealt with:
- In accordance with a wholly inadequate procedure, and
- Without the public knowing anything about it.
These difficulties are compounded by the extraordinary provision in clause 16 providing that an application for reconsideration by the Commissioner under clause 16(2) is possible only if the panel has refused to grant a certificate of eligibility: clause 16(1)(a). What if the panel in granting a certificate has misunderstood its function under clause 15(2)? What if the panel has adopted a procedure which, although compatible with the letter of clauses 15(4)-(6), would not pass muster with the Commissioner? Indeed, and even more alarmingly, what if the panel has arrived at a decision which the Commissioner, if given the opportunity, would require to be reconsidered? There can be no reference to the Commissioner – and the patient dies.
I have in the past considered the practical implications of what is proposed (in terms of the possible impact on the judicial system and the administration of justice) but this is not and never has been the principal point of my concern. That is, and remains, despite all the labours of Ms Leadbeater and the Committee, my concern that, even now, the process provided for in the Amended Bill is simply not apt to enable the panel to perform its function as mandated by the Bill.
What is proposed will not command – does not deserve to command – public confidence. Without very significant changes and improvements we face the all too real prospect of the system provided for by the Amended Bill falling into disrepute and worse – a prospect which society surely cannot tolerate where the issues are so grave and the consequences of error simply too appalling to contemplate.
Sir James Munby
30 April 2025
We have a small favour to ask!
The Transparency Project is a registered charity in England and Wales run by volunteers who mostly also have full-time jobs. Although we’ve now been going for a decade, we’re always working to secure extra funding so that we can keep making family justice clearer for all who use the court and work in it.
We can’t do what we do without help from you!
We’d be really grateful if you were able to help us by making a small one-off (or regular!) donation through our Just Giving page.
Featured image: Photo by Arnold Nagy, free to use via Pexels, reproduced with thanks.