Testing discretion

We are drawing close to the end of another court term and there is no shortage of proposed changes which will, no doubt, have a direct or indirect impact on the future of judicial review challenges. ?The referendum on the UK’s continued participation in the EU could not readily be avoided. But if the amusing social media memes about Angela Merkel weren’t enough fuel for the anti-Europe campaign, then surely further examples of the European Court of Justice (CJEU) dictating the requirements of domestic legislation will be used in the bunfight.

That is arguably the case in the Administrative Court’s decision in R (on the application of Davis and others) v Secretary of State for the Home Department [2015] EWHC 2092 (Admin). The case related to three separately issued claims for judicial review of the data retention powers under section 1 of the Data Retention and Investigatory Powers Act 2014 (DRIPA). Two of the claimants in the case were MPs and they were concerned about the width of powers to retain and gain access to their data, and particularly the confidentiality of communications to and from constituents.

The challenge to the validity of the DRIPA was that it was contrary to the decision of the CJEU in the case of Digital Rights Ireland Ltd v Minister for Communications, Marine and Natural Resources and others [2015] QB 127. Digital Rights and Davis both involved the interpretation of articles 7 and 8 of the Charter of Fundamental Rights of the EU. The charter to some extent reflects the rights formulated under the European Convention on Human Rights (ECHR), with article 7 of the charter being comparable with article 8 of the ECHR. However, article 8 of the charter enshrines the right to the protection of one’s data – that such data must be processed fairly for specified purposes and on the basis of consent or a legitimate basis laid down by law.

The hook into the charter is found in article 6(1) of the Treaty on European Union. In the Digital Rights case, the CJEU held that the Data Retention Directive 2006/24/EC was invalid because the obligation on providers of publicly available communications and the laying down of rules relating to access of the competent national authorities to data constituted an interference with articles 7 and 8 of the charter. The court held that although the retention and processing of data might genuinely satisfy an objective of general interest in Europe’s fight against terrorism and serious crime, proportionality required that there be a number of safeguards in place for it to be compliant with the charter. 

DRIPA was one of the domestic pieces of legislation across Europe put in place following the decision in Digital Rights while the EU institutions went back to the drawing board. However, the Administrative Court agreed that DRIPA similarly did not comply with the minimum requirements set out in the Digital Rights decision, and so breached the charter because it was not accompanied by an access regime that provided adequate safeguards for the protected rights. The Act was disapplied, but with effect from 31 March 2016 to give the government some time to put a more considered regime in place. 

Guidance on assisted suicide

As the pro-Europe camp might seek to remind the public, it is not always the case that the protection of the rights enshrined in European instruments trumps domestic positions. As such, can the CJEU be criticised for protecting the interests of individuals as citizens of the community? 

Most evidently, the margin of appreciation is reiterated in the series of decisions on the right ?to die, which had its most recent instalment in ?R (on the application of AM) v General Medical Council (GMC) [2015] EWHC 2096 (Admin). ?The Administrative Court shut down the challenge against the guidance provided by the GMC to fitness to practice investigation committees ?and case examiners when they are tasked ?with considering allegations against a doctor’s involvement in encouraging or assisting suicide. 

AM, who suffers from locked-in syndrome, and was a party to the challenge to the director of public prosecution (DPP)’s policy when it went up to the Supreme Court last year, was challenging the guidance on the basis that it constituted a disproportionate breach of his article 8 right to family and private life and his article 10 right to freedom of expression and to receive information under the ECHR. This was on the basis that the terms of the guidance would prevent doctors from giving AM the information and advice he sought about ending his life because they were likely to face malpractice charges which had the potential of ending their careers as doctors. 

The guidance under challenge effectively indicated that any advice given by doctors to patients seeking information about ending their ?life should be limited to: an explanation that it was ?a criminal offence to encourage or assist suicide ?and the provision of objective advice about lawful clinical options which would be available if the patient were to reach a settled decision to kill himself. It was made clear in the guidance that respect for patient autonomy was not a basis to justify illegal action.

It was further argued by AM that it was ?irrational for the GMC to not adapt its guidance ?in line with the discretion set out in the DPP’s policy on prosecutorial decision making in these sorts ?of cases. 

Both arms of the challenge were rejected. In relation to the first limb on human rights grounds, the court reiterated the wide margin of appreciation set out by the European Court of Human Rights in the now well-known case of Pretty v UK (Application No 2346/02), and concluded that the challenge was unsustainable because where a blanket ban on assisted suicide did not infringe article 8, it could not be said that any step taken to discourage a doctor from assisting suicide did infringe on article 8. 

In relation to the rationality argument, the Administrative Court had no hesitation in rejecting it. The specialist nature of the regulatory body came to the fore in the court’s reasoning, which highlighted the professional body’s place in deciding how to protect the interests of the profession and ensure that it did not fetter its discretion to commence fitness to practice proceedings.

Discretion of regulatory bodies

 The GMC’s discretion is one vehicle for complaint regarding healthcare practitioners, but another ?is in the form of the Parliamentary and Health Service Ombudsman (PHSO). The scope of the powers, duties, and responsibilities of the PHSO was dealt with in the judicial review case of Miller and another v PHSO [2015] EWHC 2981. 

In Miller, two doctors applied for judicial review of the PHSO’s decision to uphold a complaint made and to recommend compensation of £15,000. The 76-year-old patient was diagnosed by the second claimant as having a urinary tract infection during a home visit and was prescribed antibiotics. A couple of days later, when there was no improvement, the patient’s wife contacted the doctor’s surgery and was reassured by the first claimant that more time should be allowed for the antibiotics to take effect. A couple of days after that the patient died of peritonitis, an inflammation of the membrane that forms the lining of the abdominal cavity which is considered a medical emergency. 

The wife complained that if the patient had been diagnosed correctly by the second claimant, he might have received the treatment which would have allowed him to survive. After a telephone conversation with the ombudsman, the wife expanded her complaint to include the first claimant. 

The ombudsman found that the first claimant’s acceptance of the initial diagnosis amounted to a failure and the poor record of the second claimant was also a failure. The doctors levied a number of complaints against the ombudsman on predominantly procedural grounds. 

The claim for judicial review was refused. ?The ombudsman’s remit was to investigate complaints about injustice and the ombudsman had a wide discretion as to how to do that, which included reconsidering the scope of the complaint. The ombudsman had given notice to both claimants about the complaint early in the process and both were given the opportunity to respond – although ideally it should have stated specifically that the first claimant was being investigated, realistically she should have known that she was being investigated from the notice. Consequently, there was no infringement of section 11 of the Health Service Commissioners Act 1993 or the common law. Further, the court affirmed that the ombudsman was not required to apply a particular standard of review and in this case the standard, reasoning, and conclusion were clear.

Together with AM, Miller emphasises the latitude offered to bodies charged with representing the interests of the public by investigating complaints.

Saara Idelbi is a barrister practising from 7BR @7BedfordRow www.7br.co.uk

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