ASSISTED DYING : WHAT ROLE FOR THE JUDGE? MORE THOUGHTS

by | Dec 6, 2024 | Comment, Transparency News | 0 comments

ASSISTED DYING : WHAT ROLE FOR THE JUDGE? MORE THOUGHTS

This is a guest post from Sir James Munby, the former President of the Family Division of the High Court of England and Wales. It follows on from his previous pieces on this topic here and here.

I make no apologies for returning again to the important question of the role of the judge in relation to assisted dying. In Assisted Dying: What Role for the Judge? published on the Transparency Project website on 30 October 2024 I considered the question in the context of the Assisted Dying for Terminally Ill Adults Bill introduced in the House of Lords by Lord Falconer of Thoroton on 24 July 2024. In Assisted Dying: What Role for the Judge? Some Further Thoughts published on the Transparency Project website on 14 November 2024 I considered the question in the context of the Terminally Ill Adults (End of Life) Bill presented by Kim Leadbeater MP in the House of Commons on 16 October 2024.

I now consider the question again in the light of subsequent developments, in particular:

The reporting in the newspapers of the intervention by Lord Thomas omitted some of his most important observations: I work from a full transcript of the original broadcast. Dominic Grieve’s Comment as published in the print edition of The Times was significantly cut (a fact apparent from a close reading of the accompanying news report though not otherwise made clear): I work from the full text as published by The Times online.

Preliminary points

At the outset I emphasise four things:

  • 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 judicial involvement in the process.  
  • I express no views as to the desirability or otherwise of the proposal in the Bill that there should be judicial involvement in the process. That is a matter of policy for determination by Parliament. My concern is to explore the details and implications if (as at present) the Bill is to contain provisions for such involvement.
  • I am not contending that there can never be any role for the judge in the context of assisted dying. My concern was (and is) as to the function of the judge and the nature of the process envisaged under the scheme proposed in the Bill (as previously in the Falconer Bill).
  • I agree entirely with Sir Nicholas Mostyn’s very plain statement (see the Addendum to his Assisted Death: A Person with Parkinson’s Perspective) that “if the judges are to be involved their competence to decide the key question cannot be doubted.” That said, their ability to do so is critically dependent upon the nature of the process they are required to undertake and the practical and procedural safeguards built into it.

My previous papers

I shall elaborate these matters below, but I think it may be helpful to repeat here some of what I said in my previous papers. First, as to the efficacy of the proposed process:

“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.”

Secondly, in relation to the role of the judge:

“Should the judges be involved at all in this process? Is what is proposed a proper judicial function?

Since the late 1980s the judges of the Family Division have become increasingly used to deciding, both in the Family Division and, more recently in the Court of Protection, cases involving the most complex and ethically challenging medical issues, including matters of literally life and death. But it has been fundamental, ever since the case of Tony Bland in 1993 (Airedale NHS Trust v Bland [1993] AC 789), that in life and death cases the judicial function – the role of the court – extends no further than deciding whether or not life-supporting treatment should continue to be given. In an appropriate case the court can decide that life-supporting treatment should no longer be provided. But it is fundamental that the court cannot authorise the administration of treatment intended to kill. Specifically, a judge cannot authorise the administration to a patient of a drug intended to bring about the patient’s death.”

“What is proposed is that a judge by court order should facilitate the administration to a patient of a drug intended to bring about the patient’s death. It is difficult to over-emphasise the profound impact of this on what has hitherto been seen to be the proper role and function of a judge.

Quite apart from all the other problems arising under the Bill in relation to the proposal for judicial involvement, the more fundamental problem remains. Is this a proper function for the judges? Is this, indeed, truly a judicial function at all? Many would say that it is not. Where else in our judicial system does one find a judge, sitting judicially as a judge, whose function is not to decide some disputed issue or (as with the declaratory jurisdiction) to resolve some controversy but only to certify, as it were, that some decision taken by a private individual complies with the law? That, it might be said, is not what judges do and not what judges are for.”

Lord Thomas

In his Radio 4 interview, Lord Thomas included the following observations:

“The difficulty with the bill is it doesn’t grapple with the question of how the evidence is to be put before the judge … It seems to me that the one really difficult question that hasn’t been addressed in this is how is the judge to proceed, as it cannot possibly be a rubber stamping exercise. There has to be a process by which the evidence is put before the judge and the judge will need help – will need either the official solicitor or some other body that can bring the evidence before him by making the relevant inquiries … A lot of questions were discussed in the judgement of the Divisional Court and Court of Appeal in a case that came before the courts called Conway which raised some of these questions. But as far as I can see no one has grappled with the detail …”

The former Law Officers

In their letter to MPs the former Law Officers say this:

“We share former president of the Family Division, Sir James Munby’s deep concerns regarding the Bill, which, as he argues, presents “insuperable obstacles” and fails to align with the purpose and integrity of the judiciary. This Bill would place judges in an unprecedented role – not to resolve disputes, but merely to certify that an individual’s decision to end their life complies with the law. Such a function fundamentally conflicts with judicial principles, undermining the judiciary’s very purpose.

The Bill proposes to overturn decades of legal convention, whereby judges, in a public court, can rule on end-of-life cases, but their powers extend only to authorising the withdrawal of treatment, not the administration of treatment intended to cause death.

Additionally, we are concerned by the lack of clarity on whether judges, like medical professionals, could conscientiously object to participating in cases with life-or-death stakes. Such a critical issue affecting vulnerable people demands legislative precision and robust safeguards – elements we fear are lacking here.”

Dominic Grieve

In his Comment, Dominic Grieve says this:

“Then there is the role of the judge. The High Court said in the case of Noel Conway that “external pressures might be very subtle and not visible to the court”. I strongly agree with the former president of the family division of the High Court, who has said that the bill “falls lamentably short of providing adequate safeguards”. In light of that, I cannot see how the government could be confident that it would succeed in defending the bill in court.

… The government has also failed to express a view on requiring High Court judges to approve each act of state participation in ending a life by assisting a suicide. Judges are there to resolve disputes, not to act as administrators of a state-authorised scheme. This is a misuse of the role of the judiciary. It is not a subject on which government silence is acceptable.

… No government that respected the rule of law would have introduced this particular bill, and since the rule of law is not an optional extra the government cannot hide behind neutrality in not expressing its view on its form. It should have the courage to say clearly that while it may be neutral on the issue of the principle of “assisted dying,” it must oppose this bill on rule of law grounds.”

The debate in the House of Commons on second reading

In her speech during the second reading Ms Leadbeater set out her thesis on this aspect of the matter in very clear terms (Hansard, Vol 757, cols 1017, 1019):

“If the Bill were to become law, it would contain the most robust and strongest set of safeguards and protections in the world. Very strict eligibility criteria and multiple layers of checks and safeguards are embedded in the Bill … Under the Bill, any terminally ill person who wants to be considered for an assisted death would have to undertake a thorough and robust process involving two doctors and a High Court judge. No other jurisdiction in the world has those layers of safeguarding.”

That said, the debate as a whole revealed little understanding of the technicalities and displayed worrying signs of lack of engagement with the text of the Bill. There is a revealing interchange illustrating the point (Hansard, col 1024):

“Paula Barker (Liverpool Wavertree) (Lab)

I urge the hon. Member to check the wording of the Bill, because if somebody signs as a proxy, they have to have known the individual for two years, and would simply be signing to say that they agree with the patient who wishes to go forward with assisted dying.

Danny Kruger

I do not have time to check the Bill now, but from my memory it refers to someone who has known the patient for two years or someone of good standing in the community, which could be some sort of professional who is not known to them at all. Someone can quickly check the Bill, but my understanding is that it could be a total stranger to them.

Jim Allister (North Antrim) (TUV)

Is the matter not very clear? Clause 15(5) states:

“In this section “proxy” means—

(a)           a person who has known the person making the declaration personally for at least 2 years, or

(b)           a person who is of good standing in the community.”

So there is no protection such as that which is pretended by the supporters of the Bill.”

And Ms Leadbeater observed at one point (Hansard, col 1019): “if evidence emerges subsequently, the court order could be revoked.” I must return to this point below, but there is scant if any support in the Bill for this proposition.

But perhaps the most obvious and the most pervasive problem was the widespread assumption and understanding that amongst the “most robust safeguards”, as Ms Leadbeater put it, was the proposed involvement of what most MPs referred to as a “High Court judge”, the colloquial expression for those more formally referred to in section 4 of the Senior Courts Act 1981 as the 108 “puisne judges” of the High Court, the “Justices of the High Court.” But the words used in clause 12 of the Bill are “the High Court” and that means something very different:

  • In the first place, section 9 of the 1981 Act provides for a variety of more junior judges and lawyers to sit part-time in and to act as a judge of the High Court.
  • More generally, section 19(3) of the 1981 Act permits the jurisdiction of the High Court to be exercised in accordance with rules of court “by a master, registrar or other officer of the court, or by any other person.”

It follows that the general assumption that the Bill provides for the involvement of “a High Court judge” as that expression would generally be understood is simply wrong.

I would not wish to criticise MPs generally for not appreciating this fundamentally important point, for there had been disappointingly little discussion in the print media of the meaning and effect of clause 12. With honourable exceptions in a few newspapers, detailed and sustained analysis of clause 12 was in large part left to the twitterati. Moreover, the debate on second reading was generally treated as being about the principle of assisted dying; there were comparatively few references to the judicial process and even fewer references to the detail of clause 12.

What is more troubling, however, is the failure of legally qualified MPs to shed light on the point. There was the egregious example of the MP telling his constituents, in a letter dated 27 November 2024 in which he paraded his experience as a barrister, that “The scheme would be overseen by a High Court Judge most likely sitting in the Court of Protection.” Not so. The Bill, to repeat, does not mandate the use of a High Court judge. Moreover, although High Court judges sit in the Court of Protection, the Court of Protection is not part of the High Court as referred to in the Bill and it has jurisdiction only in relation to those who lack capacity, whereas the Bill is explicitly confined to those who have capacity. And even the then Solicitor General seemed oblivious to the point when, in a letter to her constituents dated 28 November 2024, she told them that “The oversight provided by … a High Court Judge is strong.”

No doubt all this seems rather technical. But when it comes to the proper understanding of something as vital as clause 12 of the Bill such technicalities are of central importance. To call out inaccuracy in such statements is not pedantry but an essential exercise in clarification.

Issues for the Committee    

Now that the Bill has received its second reading it will, we were repeatedly told during the debate, be subjected to close and detailed scrutiny in Committee. I say nothing about other parts of the Bill, which are not my present concern. But it is vital that clause 12 is subjected in Committee to meticulous line-by-line scrutiny. The purpose of what follows is to aid and facilitate that process.

I will discuss the issues arising on clause 12 under the following headings:

  • The judge
  • The function of the judge
  • The judicial process
  • Secret or transparent
  • The absence of appeal

The judge

Two questions arise that are too important to be left to be resolved either by rules of court (clause 12(4)) or by Regulations made by the Secretary of State (clause 38):

  • The Bill refers to “the High Court”. The Falconer Bill referred to “the High Court (Family Division)”. Is the work to be allocated to the Family Division, whose judges have great experience of dealing with end-of-life cases both in the Family Division and in the Court of Protection, or to the High Court generally? It is idle to ignore that the answer to this question has significant resource implications (a topic I return to below).
  • What level of judge is to exercise this novel and anxious jurisdiction? A High Court judge as that expression is defined in section 4 of the 1981 Act? Or any of the persons referred to in sections 9 and 19(3) of the 1981 Act? Surely not. It must be a High Court judge as defined in section 4. This is vital as a matter of principle and not just because, as I have noted, this appears to be the understanding of the promoters of the Bill.

The function of the judge

The function of the judge is spelt out in clauses 12(2) and 12(3):

“(2)         On an application under this section, the High Court—

(a)           must make the declaration if it is satisfied of all the matters listed in subsection (3), and

(b)           in any other case, must refuse to make the declaration.

(3)           The matters referred to in subsection (2)(a) are that—

(a)           the requirements of sections 5 to 9 have been met in relation to the person who made the application,

(b)           the person is terminally ill,

(c)           the person has capacity to make the decision to end their own life,

(d)           the person was aged 18 or over at the time the first declaration was made,

(e)           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)             the person is registered as a patient with a general medical practice in England or Wales,

(g)           the person has a clear, settled and informed wish to end their own life, and

(h)           the person made the first declaration and the application under this section voluntarily and has not been coerced or pressured by any other person into making that declaration or application.”

For present purposes I concentrate on clauses 12(3)(b), (c), (g) and (h).

Schedules 2 and 3 set out the forms of statement given by the coordinating doctor and the independent doctor which will be before the judge. For present purposes they are in identical form. In relation to the matter in clause 12(3)(b) the statement will set out the doctor’s “opinion” to that effect. In relation to the matter in clause 12(3)(c) it will set out that the doctor is “satisfied”. In relation to the matters in clauses 12(3)(g) and (h) (so far as concerns the “declaration” – the statement does refer to the “application”) it will set out that the doctor is speaking “To the best of my knowledge.”

The point is a simple one but vital. How is the judge to be “satisfied” in relation to each of these matters, as demanded by clause 12(2)(a), merely because the doctors have stated their “opinion” or that they are “satisfied” let alone when speaking “To the best of my knowledge”? And, as a separate point, how is the judge to be satisfied in relation to clause 12(3)(h) insofar as concerns the “application”, in contrast to the “declaration”, since that is a topic on which the doctors’ statements are necessarily silent?

The question and its profound significance were explained by Lord Thomas in his Radio 4 interview:

“It is I think clear from the way the bill is framed that the judge is to make a determination so he is satisfied of the conditions set out. It’s not and cannot be a rubber stamping process … I think it’s easiest to look at the three critical questions for the judge. Many of the others are formalities.

The first is does the person have capacity. I don’t think that should generally prove to be a difficulty because the doctors will certify that.

But the two difficult questions are whether the person has a clear settled and informed wish to end their own life and secondly the person who is making the declaration is doing this voluntarily and hasn’t been coerced.  It’s interesting that the certificates to the bill specify that the two doctors have to certify that to the best of their knowledge whereas of course the judge is required to be satisfied.

And from reading the bill it’s clear that there must be evidence before the judge. The difficulty with the bill is it doesn’t grapple with the question of how the evidence is to be put before the judge.”

Concerns have been expressed that the judicial process envisaged by the Bill will be or become a rubber stamp. To that, my response is threefold:

  • It is clear from her many statements both before and during the second reading debate that Ms Leadbeater envisages the involvement of the judge as providing an additional layer of robust safeguarding.
  • As Lord Thomas has explained, the provisions of clauses 12(2) and 12(3) are inconsistent with a mere rubber stamping exercise.
  • More fundamentally, as he says, if there is to be judicial involvement “it cannot possibly be a rubber stamping exercise.” I emphatically agree. As I have said before, “it would be disastrous if the judge were to be seen as no more than a rubber stamp.”
    • It would destroy public confidence in the whole scheme, which would sink into discredit and worse.
    • It would do lasting, perhaps irretrievable, damage to the standing and reputation of the judiciary if the idea was to gain traction that this much vaunted safeguard is in truth a fiction based on no more than the fig-leaf of a rubber stamp. 

The Bill is surely intended to give more – it must give more – than a mere veneer of judicial approbation. The Bill must provide for more than what Lord Sumption (see below) has referred to as a process “adding lustre and prestige to a decision already made by others.”   

The judicial process

This leads on to the problem which is at the heart of the Bill: the problem of process and procedure.

This was something considered by both the Divisional Court and the Court of Appeal in the Conway litigation in 2017-2018 (see Regina (Conway) v Secretary of State for Justice (Humanists UK and others intervening) [2017] EWHC 2447 (Admin), [2018] EWCA Civ 1431, [2020] QB 1.) The Divisional Court expressed its concerns (para 100):

“the involvement of the High Court to check capacity and absence of pressure or duress does not meet the real gravamen of the case regarding protection of the weak and vulnerable. Persons with serious debilitating terminal illnesses may be prone to feelings of despair and low self-esteem and consider themselves a burden to others, which make them wish for death. They may be isolated and lonely, particularly if they are old, and that may reinforce such feelings and undermine their resilience. All this may be true while they retain full legal capacity and are not subjected to improper pressure by others.”

It added (para 104):

“in relation to external pressure exerted by others on the person concerned, the process of seeking approval from the High Court would not be a complete safeguard. The court would have to proceed on the evidence placed before it. External pressures might be very subtle and not visible to the court. For example, it is not difficult to imagine cases of family discussions about money problems, not necessarily intended to place pressure on an elderly relative, in consequence of which they draw their own conclusions that they are a burden and would be better off dead. In any event, it might be difficult to disentangle factors of external pressure from the individual’s own internal thought processes and difficult to tell when external pressure is illegitimate or such as to invalidate the individual’s own choice to die (emphasis added).”

The Court of Appeal had similar concerns (para 174):

“Another concern is whether and how the proposed inquisitorial role of a High Court judge would work in practice. The judge would only be able to assess such matters as freedom from coercion or direct or indirect undue influence or the medical assessment of the imminence of death if given the evidential material to do so. This would require some independent person or agency to carry out the appropriate evidential investigation and also, possibly, to play some role in the court hearing. As King LJ observed during the course of the hearing, such an inquisitorial approach would require funding (emphasis added).”

What the Court of Appeal seems to have envisaged was the kind of rigorous independent investigation traditionally carried out by the Official Solicitor in wardship cases and more recently in end-of-life cases.

To explain: The use of the Official Solicitor, as the court’s officer, to make investigations at the instigation of the court is well-known and long established. The use of the Official Solicitor in this way was already common by then but the authority usually cited is Harbin v Masterman [1896] 1 Ch 351, 366, 368-369, 371 (a case where the Court of Appeal directed the Official Solicitor to interview a vulnerable widow in order to ascertain whether the appeal brought in her name was really brought on her behalf or rather, as it found to be the case, in the interest of her solicitor).

Accordingly, as I have previously explained, the following questions inevitably arise:

  • Who can apply to the court and who should be joined as parties?
  • Is there to be a hearing or is the application to be dealt with ‘on the papers’ and without a hearing?
  • What procedures are to be adopted for testing and, if need be, challenging the evidence? Who should exercise that function?
  • Is there to be an independent evidential investigation? If so, who is to undertake this and who is to pay for it?
  • What public funding arrangements will there be?

Against this background I return to the Bill. Process and procedure are dealt with in clauses 12(4), 12(5) and 12(6):

“(4)         Subject to the following provisions of this section and to any provision made by Rules of Court, the High Court may follow such procedure as it deems appropriate for each application under this section.

(5)           The High Court—

(a)            may hear from and question, in person, the person who made the application for the declaration;

(b)           must hear from and may question, in person, the coordinating doctor or the independent doctor (or both);

(c)           for the purposes of paragraph (b), may require the coordinating doctor or the independent doctor (or both) to appear before the court.

(6)           For the purposes of determining whether it is satisfied of the matters mentioned in subsection (3)(g) and (h), the High Court may also—

(a)           hear from and question any other person;

(b)           ask a person to report to the court on such matters relating to the person who has applied for the declaration as it considers appropriate.”

 Three things are apparent from a close reading of these provisions:

  • The court 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 place where the word “must” appears) is clause 12(5)(b), providing that:

“The High Court … must hear from and may question, in person, the coordinating doctor or the independent doctor (or both).”

That apart, the Bill provides only that the High Court “may” do various things.

  • Clause 12(5)(b) is nothing like as clearly drafted as one would wish on such a vitally important point:
    • In the first place, what is meant by the words “hear from”? Is this intended to mean “take oral evidence from” – and, if so, why does it not say so in terms – or will this requirement be satisfied by the judge reading some written document? The contrast between “must hear from” and “may question, in person” suggests the latter is the correct construction. This is not some lawyer’s piece of pedantry. It is of fundamental importance. For unless there is a requirement to hear oral evidence there will be no need for a hearing at all and the case will be able to proceed without a hearing and ‘on the papers’.
    • The unhappy wording – “must” … “may” … “or” … “or both” – makes it very difficult to understand precisely what it is that the judge “must” do.
  • In relation to the key matters referred to in clauses 12(3)(b), (c), (g) and (h), in relation to each of which the judge is required to be “satisfied”, the court’s powers under clauses 12(5) and 12(6) are curiously limited. In relation to clauses 12(3)(b) and 12(3)(c) the judge is given no power to hear from anyone other than the two doctors. Only in relation to the matters referred to in clauses 12(3)(g) and 12(3)(h) is the judge given power to hear from anyone else. Why in relation to the key issues of terminal illness (clause 12(3)(b)) and capacity (clause 12(3)(c)) is the judge confined to hearing only the views of the two doctors? And what is to happen if, having questioned the applicant and the two doctors in accordance with clause 12(5), the judge is left with concerns. If the judge is precluded from any further investigation – for example by seeking further evidence from others – it would seem that he will have no alternative but to refuse to make the declaration in accordance with clause 12(2)(b). Is this what is intended, and, if so, why?

Clause 12(1) makes clear that the application is to be made by the patient, but the Bill 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.
  • The Bill is entirely silent as to how the court 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.

Clauses 12(5) and (6) provide that the judge “may” do the following:

  • “hear from and question, in person, the person who made the application for the declaration”
  • “require the coordinating doctor or the independent doctor (or both) to appear before the court”
  • “hear from and question any other person” and
  • “ask a person to report to the court on such matters relating to the person who has applied for the declaration as it considers appropriate.”

With the exception of the third, which is quite properly expressed as a discretionary power, why are these not all made mandatory requirements? In particular, the absence of any requirement that the judge “must” hear from and question the patient is a quite extraordinary lacuna.

Beyond this the Bill is silent as to the process and procedures to be adopted. It is, as we have seen, ambiguous as to whether there is to be a hearing or whether the application can be dealt with ‘on the papers’ and without a hearing. It says very little about the procedures to be adopted for testing and, if need be, challenging the evidence and 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.

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).

Secret or transparent

The Bill has nothing whatever to say about these two vital matters:

  • If there is to be a hearing, is this to be in public or in private? Are there to be reporting restrictions? Are 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?

Taking stock

I pause to take stock. All in all, in relation to the involvement of the judges in the process, the Bill falls lamentably short of providing adequate safeguards.

Let us consider how an application to the court could be dealt with by a judge in a manner entirely compatible with the requirements of clauses 12(4), 12(5) and 12(6). The judge 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, if I am right about clause 12(5)(b), without holding any kind of hearing and, moreover, without giving any public judgment.
  • Adopt a procedure which, beyond whatever little the judge is required to do in accordance with clause 12(5)(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 – not even the name of the judge.

The fact is that judges are kept up to the mark by two things: having to comply with proper procedure and being exposed to the public gaze.

Over a century ago, in Scott v Scott [1913] AC 417, 477, Lord Shaw of Dunfermline, in his timeless denunciation of the evils of secret justice, quoted Bentham:

“In the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice.”

“Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.”

The absence of appeal

These difficulties are compounded by the extraordinary provision in clause 12(11) precluding any appeal if the High Court has made the declaration sought by the patient:

“No appeal lies from a decision of the High Court to make a declaration under this section.”

What if the judge has misunderstood his function under clauses 12(2) and 12(3)? What if the judge has adopted a procedure which, although compatible with the letter of clauses 12(4), 12(5) and 12(6), would not pass muster with the Court of Appeal. Indeed, and even more alarmingly, what if the judge has arrived at a decision which the Court of Appeal, if given the opportunity, would reverse? There can be no appeal – and the patient dies.

And what if the patient’s partner and relatives, excluded from participation in the judicial process, discover, only after the judge has made the declaration, facts of the kind which in AY v NB 2024 BCSC 2004 prompted an eleventh-hour intervention by the Canadian judge? What are they to do? They cannot appeal. Can they somehow apply to the judge who made the declaration but is now probably functus officio? Or can they apply to the Family Division and pray in aid the inherent jurisdiction? Who knows, and the Bill does not tell us.

If it is said that the public can have confidence in the fact, without more, that the declaration has been made by a High Court judge, and that there is no need to permit an appeal, then I can only respond with bleak emphasis that even High Court judges are fallible and sometimes make mistakes. Why after all, do we have a Court of Appeal and why are there successful appeals against High Court judges?

I mention, so that they are not overlooked, two further points which require consideration, the first in relation to the Court of Appeal, the second in relation to the Supreme Court.

In relation to the Court of Appeal, clauses 12(8)-(10) provide as follows:

“(8)         Where, on an application made by a person under this section, the High Court refuses to make the declaration, that person may appeal to the Court of Appeal against that decision.

(9)           The Court of Appeal must—

(a)           if it is satisfied of the matters mentioned in paragraphs (a) to (h) of subsection (3), make a declaration that the requirements of this Act have been met in relation to the first declaration, and

(b)           in any other case, confirm the High Court’s decision.

(10)        Subsections (4) to (7) apply in relation to the Court of Appeal as they apply in relation to the High Court.”

Two points arise on this:

  • Is permission to appeal required, or will appeal lie as of right?
  • The process envisaged by clauses 12(9) and 12(10) is far removed from the normal practice and procedure of the Court of Appeal. Have the implications of this been considered?

In relation to the Supreme Court, is there intended to be any further right of appeal? The Bill is silent on the point.

Summary

As I said in my previous papers, I am 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); that there must be a rigorous procedure in every case for testing and if need be challenging the evidence; and that the judge must be required to give and publish a judgment in every case.

There can be no room here for secrecy or concealment. If there is to be a judicial process, it must be open and transparent.

Some may say: these are all technical points which can appropriately be left for the rules of court contemplated as a possibility by clause 12(4) or, indeed, as clause 12(4) provides, left to be decided on a case-by-case basis. I strongly disagree. As I said in my previous papers, the process and procedures by which such a novel and anxious jurisdiction is to be exercised will be fundamental to the integrity and efficacy of the scheme. They will be crucial to the confidence which those directly involved and, more generally, society and the public at large must have if the scheme is not to sink into discredit and worse. These are matters on which Parliament must make its intentions plain.  

At the end of the day, the key question is this. How confident can we be that the procedures set out in the Bill will be adequate to enable the court to identify and prevent possible abuses and in particular be adequate to detect what may be very subtle external pressures? My answer, for the reasons I have already given, is very simple. Only those who believe implicitly in judicial omniscience and infallibility – and I do not – can possibly have any confidence in the efficacy of what is proposed.

The fundamental dilemma

There is here, as I have previously suggested, a fundamental dilemma. If there is to be a judicial process, it must, as I have said, be open and transparent. The very suggestion that the process should be private, confidential, shrouded in secrecy, is surely anathema to any judge who might be involved. But the idea of these cases being heard in public, with all the details being published, is, I suspect, anathema to those who want to be able to slip away quietly and without fuss.

The hard truth is that in contemplating judicial involvement we face an impossible choice: between an open and transparent process that might deter those for whom the scheme is designed, and a secret process destructive of the integrity of the scheme and corrosive of the judicial function.

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.

From a judicial perspective there is, in truth, I believe, no choice to be made. There are two reasons why an adversarial procedure – by which I mean a process involving 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 – is essential in every case:

  • Without this, it will not be proper for a judge to be involved in the process. For otherwise, the judge is little more than a rubber stamp providing a judicial certificate and a veneer of judicial approbation – and that is fundamentally unacceptable.
  • Without a rigorous procedure of this kind a judge will not be able properly to exercise his functions as mandated by clauses 12(2) and 12(3). 

Indeed, the logic of Ms Leadbeater’s whole approach to the robust safeguards she extols itself demonstrates the inadequacy of clause 12.

I repeat the point I have already made. It is for Parliament to decide whether or not there should be judicial involvement. On that I have no views, save to emphasise that, if the judges are to be involved, it must be involvement in accordance with a proper judicial procedure.

Impact

A final matter to consider is the impact the proposed judicial involvement will have on the judicial system and on the administration of justice.

A High Court judge sits in court for 40 weeks a year, 5 days a week, the court day being 5 hours (to be clear: this is the ‘sitting time’; High Court judges work for much more than 5 hours a day). So a High Court judge sits for a total of 1,000 hours a year.

Let us assume, in order to illustrate the scale of the problem, that each application takes an average of 2 hours (I make clear that I do not accept that 2 hours would be sufficient).

In 2023 there were 577,620 adult deaths in England and Wales (total deaths 581,363 of which 3,743 were of children under the age of 18).

A variety of views have been expressed as to how many cases there might be:

  • Ms Leadbeater has suggested that as many as 3% of the adult population might eventually choose assisted dying.  3% of 577,620 is 17,328 – I round it down to 17,000. That would require a total of 34,000 hours of judicial involvement. Including the President of the Family Division there are 19 judges in the Family Division, between them sitting a total of 19,000 hours a year, a figure far short of the 34,000 hours of judicial involvement required on this calculation. If the workload was spread between all 108 High Court judges, this additional work would take up some 31% of each judge’s sitting time.
  • Another suggestion I have seen is that there might be some 7,500 cases. That would require 15,000 hours of judicial time. If spread between the19 judges of the Family Division, some 78% of each judge’s sitting time. If spread between all 108 High Court judges, some 13%.
  • Another suggestion is that 1% of the adult population might choose assisted dying. 1% of 577,620 is 5,776 – I round it down to 5,750. That would require 11,500 hours of judicial time, equivalent if spread between the 19 judges of the Family Division to some 60% of each judge’s sitting time or, if spread between all 108 High Court judges, some 10%.

The figures speak for themselves. Where are the judges to be found? And what of the impact on the wider administration of justice which, as is unhappily notorious, is already under enormous strain, affected by serious backlogs and unacceptable delays?

That, of course, would be only one element of the impact were the judges to be involved. What of the costs to His Majesty’s Courts and Tribunals Service of handling and administering the cases? What of the costs to the Official Solicitor were that office to be involved? What of the costs in Legal Aid were public funding to be available? And there would, no doubt, be other costs.

Other views  

I end with the views of two distinguished retired judges.

In the course of a long comment piece in the Sunday Times on 1 December 2024, Lord Sumption, the former Justice of the Supreme Court, said this:

“the current bill is seriously defective … In particular, it requires the whole process to be authorised by a judge. It is not clear from the bill whether the judge’s function is limited to checking that the statutory procedures have been followed, thus adding lustre and prestige to a decision already made by others; or whether the judges will be required to duplicate the work of the doctors, by forming their own view. If the former, the procedure is pointless; if the latter, it will cause delay and expense without necessarily improving outcomes.

It will also turn what should be an intensely personal decision by the patient and his doctors into a form of state-sanctioned killing. Among the dozen or so jurisdictions which allow euthanasia or assisted suicide, not one has turned the exercise into a judicial process in this way.”

That is a powerful questioning of whether the judges should be involved at all.

On 3 December 2024 The Times published this letter from Sir David Bodey, who was a judge of the High Court from 1999-2017, sitting in the Family Division and the Court of Protection:

“I am wondering how the High Court judge would be able in practice to carry out his/her supervisory role under the proposed assisted dying legislation, unless there were some independent person (similar to a social worker regarding issues over children) to make enquiries and prepare a report for the court. This would involve meeting the applicant in the applicant’s home or other environment; talking with him or her and with family members, friends, carers and other persons with relevant information; and forming a view about the reality of the applicant’s stated wishes and understanding of any alternatives and as to whether the dynamics could be coercive. Without some such infrastructure set up and funded, it is not obvious how the court could meaningfully carry out its proposed inquisitorial function.”

That is a voice of vast experience which we would all do well to heed if the judges are to be involved.

Postscript

On 3 December 2024, on LabourList, Jake Richards MP, one of the proposers of the Bill, published MPs have approved the basic principles of assisted dying – the details require further work for us all. He said:

“There remain questions about the judicial oversight function. During the second reading debate, Sir James Munby was quoted on numerous occasions. The former President of the Family Division has written lengthy articles criticising the Bill for, in his view, failing to sufficiently set out the role for the judiciary: What evidence will be put before the judge? What seniority of judge? Will the judge be able to ‘opt-out’ of the process due to conscience? How will the judge consider the issues? Will there be a hearing? Can third-parties apply to be heard? If so, how? Is there a route for appeal? If not, why not? Will there be a judgement, or merely an order? Fundamentally, what are you asking the judge to do? Is there a discretion?

Now, not all of these need to be dealt with in primary legislation. But perhaps the general challenge is to ensure the rules of court and other regulations provide for an exercise which is not mere ‘rubber stamping’ but not so time-consuming as to make the purpose redundant. It may suffice for legislation to provide for third-party applications should they feel the statutory criteria had not been met. Indeed, perhaps this should have been the only means by which courts were involved.”

This has been the subject of comment by the twitterati. I do not propose to comment, except to reiterate my objection to the idea that the matters of concern I have highlighted do not require to be dealt with in primary legislation. In this instance they do.

No doubt in due course we will have further details of what is being suggested.   

Sir James Munby

6.12.2024

We have a small favour to ask! 


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