Dying for death – the legal right to die

A recent personal experience is sometimes not the best time to address life-changing legal issues that will affect others. During the recent protracted death of my 91 year old mother following a severe stroke, I found myself and my family precipitated onto the Liverpool Care Pathway. Our involvement was to watch, bedside, whilst she struggled towards a delayed death, cared for by kind and competent medical staff, but hindered by an unkind process.

The Liverpool Care Pathway is to be reviewed. Is it sufficiently clear? Is it clear regarding the issue of food and hydration during dying? How can we ensure that proper information has been shared with a patient’s family, and consents have been freely given?

The Pathway, developed during the late 1990s in conjunction with the Marie Curie Palliative Care Institute at the Royal Liverpool University Hospital, was to allow people with a terminal illness to die with dignity. Then, and perhaps now, this approach is counter-intuitive for a medical profession dedicated to cures and life.  Entry to the Pathway is the recognition that death is both inevitable and imminent. This final furlong involves the end of active, life-sustaining treatment, and the acknowledgement that death is an objective.

The Pathway may be simple if the patient is unable to take nutrition and liquids without painful medical intervention. An unconscious patient is expected to slip further from life, absent life support. But what if the patient really needs assistance with dying?

Tony Nicklinson suffered from ‘locked-in syndrome’. His unsuccessful High Court challenge to the right to an assisted death was taken over after his death in 2012 by the paralysed Paul Lamb, and resulted in the constitutionally correct, but unkind ducking of the issue by the Court of Appeal. The court held that denying assistance towards death constituted a proportionate interference with Article 8 rights to self-determination. Lord Judge considered that any change to the law was a matter for parliament to legislate.  The associated ‘Martin’ appeal was however allowed. Here, the Director of Public Prosecutions was required to provide clearer guidance on prosecution policy of those, including medical staff, who may accompany a patient to Switzerland for the purpose of assisted dying.

The matter could not end there. The case now awaits judgment from the Supreme Court. Paul Lamb has continued his legal battle for the right to an assisted death, whilst Keir Starmer, the former Director of Public Prosecutions asked for further guidance from the Supreme Court on prosecution policy.

Examining the current guidance, it is significant that the ‘full code test’ which has to be met before a prosecution is brought, comprises not just an evidential test, but a public interest assessment. Herein is the dichotomy – between individual rights (or wishes), and public interest considerations.

Baroness Mary Warnock (moral philosopher and thinker) and Elisabeth MacDonald (cancer specialist and expert on medical law) captured these issues comprehensively and sensitively in ‘Easeful Death- Is there a case for Assisted Dying‘, published by Oxford University Press in 2008. They summarise the debate (as did the House of Lords Select Committee) as representing two conflicting principles – ‘the sanctity of human life’ and ‘the principle of autonomy’. In 1998, the debate centred around the wishes of motor neurone disease sufferer Diane Pretty to die with dignity. Lord Joffe’s bill, the last before Parliament, was rejected in 2006. It is a sad commentary on the state of English law that, whilst parts of the European community have developed a cogent end-of-life policy, the UK still flounders with indecision.

The BBC script writers of Coronation Street revived the debate this year with the death of Hayley Cropper, taking her own life rather than waiting for a painful death. Following the screening, polls recorded that 80% of the British public support the idea of medical assistance to die with dignity. Interestingly, 71% of those expressing religious beliefs also support a change in the law.

Should the wishes of mentally competent adults be treated with respect when it comes to the fate of their own life and body? Should those whose medical or physical condition is so severe that they are unable to help themselves, be assisted on the pathway to dying? Are sufficient safeguards available to prevent unlawful death? Should the compassion card trump the legal prohibition?

The latest Assisted Dying Bill, brought this time by Lord Falconer and modelled on the law in Oregon, USA, is to ‘enable competent adults who are terminally ill to be provided at their request with specified assistance to end their own life; and for connected purposes’. A free vote is to be allowed, although currently 30% of MPs support the Bill and 40% are yet undecided. The Bill’s scope is limited, compared with Switzerland (where assisted suicide has been lawful since the 1940′s), Holland and Belgium.

Whilst this Bill may not have helped my mother towards a peaceful death -with public support – it is certainly a step on the way.

 

 

Party Animals

MUNBY

photo of Sir James Munby, President of the Family Division, courtesy of Brian Smith for the Telegraph

“Going to court about your children is almost as bad as accepting an invitation from Jeremy Kyle…you should have sat down quietly together and sorted it. Instead you go for broke and destroy your last bit of dignity in a courtroom drama?

Strong words, (I hasten to add, not from the President of the Family Division) and amusing in their invective; but containing that trace of truth that harbours an important point.

If anyone was to invent a process that was better designed to fan the flames of conflict and at times humiliate the protagonists, they may be hard pushed to beat the current ‘family court system’. Take two people who are at loggerheads, a judge who ‘has better things to do’, bring in two lawyers with their jerry cans of publicly funded fuel, strike a match and you’re sure of a big blaze. If you are legally aided, the taxpayer gets to pay for your day in court, and if you are not-so-sponsored, you can also add in a huge bill for all the damage that is sown and reaped.

For over thirty years I have played my part as a barrister in these cases. Often, there are no winners – apart from the lawyers. The adults leave court with the compromise they could or should have agreed many months before, and the children pick up the emotional tab of their parents’ conflict.

In my previous blogs I have explored the role of mediation to tame the tempest. Glance back to see my ‘mediation musings’. But in this blog, I want to explore the question of why we allow (and frequently require) the adult players to be the drivers of litigation concerning their children.

The Children Act 1989 was intended to put children first. Maybe it did, but the legislators did not seize the stinging nettle as to ‘who should manage’ competing claims. In 1989, the adversarial system was still in full flight, even in children cases, and family advocates were rated on being a “good fighter”, “doughty opponent”, or “a determined advocate”. It would have been unconscionable to remove from parents their cherished ‘party status’ through which they could both commence proceedings and seek to control them as litigators.

Now the climate has changed. The courts have felt the effect of global warming and frequently turn on the air conditioning, or even the sprinklers to cool the temperature of conflict. The Children and Families Bill seeks to remove some of the more divisive concepts concerning private law orders. So, is the right time to take that extra step – and withdraw party status from the protagonists?

Envisage a system where, when an issue arises in relation to the care or management of a child, the court is notified, and appoints a ‘children’s guardian’ as a matter of course.

Rather than allowing the adults to rush through the doors of the court, the guardian would mediate between the parties, aiming for the middle ground that is so often adored by judges. Where agreement was possible, it would be recorded as an agreement and submitted to the court as endorsed in AI v MT and re-affirmed in S v S.

Should agreement not prove possible, the guardian’s solicitor, owing an equal duty to the child and the court, would take over the whole case management. One of their tasks would be to obtain statements from the parents setting out their concerns, positions and requests. The parents /grandparents /extended family members would all remain witnesses, having a right to have their voice heard, but not to manage and control the case. Only in public law cases where serious allegations were made against a parent would the question of party status arise.

In the absence of party agreement, the Guardian’s advocate would present the issue to the court, calling the parents as relevant witnesses. That which had already been agreed could be outlined, and the remainder decided by the district judge.

Of course, we would have to move away from the adversarial process, and that would require cultural and legislative changes. This may already be awaiting in the wings with the advent of the Single Family Court. We would also need proper funding of guardians and their solicitors. But the saving of replicated costs of party status for parents would probably pay for a pretty good service.

The requirements of efficiency and institutional functionality would probably rule out CAFCASS as a service provider, yet with a large pool of funded, professionally regulated, independent guardians, this problem could be overcome.

European Convention articles 6 or 8 may be cited as an issue, but  the European Court in Rosalba Alassini & Ors v Telecom Italia SpA & Ors, a endorsed the introduction of compulsory mediation as a preliminary step to litigation. Here, the facilitative role of the Guardian would be a preliminary step before the right to be heard by the court.

Do you agree that the change is a timely and necessary step on the road to managing both public and private law issues competently and proportionately, keeping the child on centre stage?

But what about the poor lawyers who would lose work? …..Yes, you have a point there.

The relationship between the Bar and the Bench

bench press

In January two years ago in Family Proceedings on the Move I raised an issue about the requirement for advocates to draft court orders.  In July last year in The Headmaster’s SlipperI had cause to revisit the topic in the light of the ‘Submission of Orders in the Single Family Court’ direction.

It is now established practice that the advocates in a case will be responsible for drafting the majority of court orders within tight time-scales, so relieving both the judge and the court service who otherwise would prepare and ‘type it up’. Only those of my era will appreciate fully what a sea-change in responsibility and time this produces. Advocates, who formerly strolled away from court for lunch – their job done – now spend hours in drafting and agreeing the order. Mostly, this work falls outside remunerated time. In other words, the preparation of orders is a pro bono contribution.

As of the 17 March 2014, should Advocacy Forms not be signed by judges on the day of hearing,  Newcastle Combined Court has stated that it will refuse to pass them to Judges for signature. Instead advocates will be required to make an appointment with the Judge (probably prior to court commencing) where the Judge will consider the matter and listen to the advocate’s representations as to why this wasn’t done at the conclusion of the case before leaving court.

The probability will be that the judge did not stay long enough at the conclusion of a case for the information required on the form to be added, and it to be handed in for signature on the day.

Yet it occurs to the blogger that this is yet another example of ‘the administration of advocates’ by the court.

The Advocacy Form was always a flawed concept, proving nothing that could not be better obtained from more reliable, existing sources – a set of instructions, an up-to-date index and a witness list provide all of the information that is needed. The ludicrous issue of a judge certifying start and finish times can, if needed, be spot checked by reference to the court file.

A senior member of the Bar has recently observed that where the court service lose court orders and bundles in a case they will now be required to ‘make an appointment with her and she will consider whether to provide them with another copy’. I agree with her; yet this brilliant and witty ripost shows just how far we as advocates are being pushed by ‘the system’ away from our old collaborative relationship with judges.

With the Quality Assurance Scheme for Advocates appointing judges as ‘graders of advocates’, the historic relationship between the Bar and the bench is now up-for-grabs. Judges and advocates are being manipulated and tied by the court service and government into a new web of bureaucracy. At what point will judicial discretion in relation to the drawing of court orders, the completion of Advocacy Forms, the grading of advocates – and most certainly many other issues – be totally removed, to be replaced by ‘management strategies’?

Non-Court based Solutions

CIArb News / 26 November 2013

recent poll has found that only 51% of the British public would consider trying a non-court based solution instead of going to court if they were to divorce in the future. Resolution, the organisation for family lawyers and other professionals in England and Wales, commissioned the ComRes poll of over 4,000 British adults to mark its second annual Family Dispute Resolution Week.

Mediation, arbitration and other forms of alternative dispute resolution (ADR) provide a cost-effective and faster alternative to costly and time-consuming court procedures. A greater emphasis on ADR will provide the government with the ability to make necessary savings whilst helping to ensure families avoid long, drawn – out disputes, which can have a lasting harmful impact on the adults and children concerned. ADR solutions currently available to families include the family arbitration scheme developed by the Institute of Family Law Arbitrators (IFLA).

Anthony Abrahams, CIArb Director General said:
“It is deeply concerning to hear of the lack of awareness amongst families about non-court based dispute solutions. With the family court system in England and Wales under increasing strain, a greater focus on ADR is essential to make the family justice system more effective. Such solutions as the IFLA’s arbitration scheme have a major role to play in settling family disputes.”

“The government has long stated that it wants the family justice system to work better for families and put children’s needs first at all times. Whilst we welcome their commitment to mediation and other forms of dispute resolution as an intrinsic element of a more effective family justice system, it is clear more needs to be done to raise awareness of such processes. We will continue to work with government and bodies such as Resolution to achieve this.”

Fit for Purpose?

arbitration

 

Going to court is not a simple task. Nor is it made easy.

With that in mind, I have put together two scenarios – to ask one question: are our courts fit for purpose?

Scenario 1

A client’s typical day in court starts shortly after dawn, with the journey to the court centre. As courts sit in town and city centres, locating the building may be a small problem, but finding parking will be treacherous. Since there has been no planning requirement for the provision of court parking, bring plenty of loose change, and be prepared to dash back to your car at lunch time to feed a meter.

The next deadline is at 9.00 am to meet with your advocate.

Allow time to progress through security. Some court centres sport a queue that snakes back through the rain. Join the end of this, but remember to bring your umbrella. Make sure that you leave anything metal behind, and do not have a camera – for some courts may even confiscate your phone. The bigger your bag, the longer the task, so travel light.

Once access to the court centre is achieved, approach the large notice board of cases, listed by court or case number – rather than alphabetically. Deciphering the list is an art, honed over years of practice, so you may find this daunting. You will need your glasses for the small print. But do not rely on the list. Your case may not be there, and if it is, it may be moved. After all, the list is prepared for the listing officer rather than the court users.

The court building is on several floors, with courts arranged randomly. Court 1 may not be where you think it should be. Court 14 could be on any floor, or even between floors. You may choose to head for the restaurant – but beware – the metal seats are challengingly fixed to the floor, and the fare may be reminiscent of prison food.

Finding your advocate is the next difficulty. If counsel has been instructed on your behalf, you will probably meet your barrister for the first time at court. The art is to locate a court where you believe your case is listed, and to wait expectantly. If the barrister has other cases that day, your wait may be long. If not, question how he or she can make a living on the basis of your fee.

Having met with your barrister comes the next challenge – that of finding a room in which to confer. Pressing through a sea of clients and lawyers, you will peer into room after room, only to find that you end up in a corridor. Yes, conference facilities are not what you would expect.

If you have the time and space to speak with your advocate before the hearing, be prepared for him or her to disappear and re-appear – to speak to the ‘other side’ or to finish another case in another court. This is normal. Bring a book to read. Beware the coffee machine – you may need your change for top-up parking, and you certainly will not want to undertake the tortuous journey to find the toilets.

Of course, this is all to be worthwhile if your case is dealt with at this visit. When your advocate returns to tell you that the court has risen for lunch, be not too disappointed. But if the list proves too long, the judge has to leave before the close of business, or your case does not have an allocated judge, then your case may not be reached at all. By way of consolation, you will be well practised for the next time.

Scenario 2

Both you and the ‘other side’ have opted for a private court hearing (an arbitration). When your solicitors arranged this they even gave you a choice of judge. You were able to glance through a glossy brochure or check them out on line. If your case is big enough, you may even get to meet the judge beforehand.

The location for your arbitration was a matter of choice – perhaps your solicitors’ board room with the palms and recessed lighting. Your car safely in the car park, you take the lift to the coffee lounge where you greet your chosen barrister and tidy up the last minute details of your case.

The arbitration starts on time, with introductions and clear ground rules explained. Most of what you wanted to say has been written down in advance, and the arbitrator asks you a few questions for clarification. When breaks are needed, they are taken. Everything is covered, and you conclude the day in good time to miss the traffic. At your request, a written judgment will be emailed to you and your solicitor, together with an award where appropriate.

~~~~~~

In my previous blog I raised the prospect of the privatisation of the public court system – hiving them off to the public sector. Sarah Vine of the Guardian may have got it almost right, save that the Ministry of Justice needs to do nothing more than it is currently doing – namely scenario 1: running courts that are not fit for purpose.

With the Arbitration Act 1996, and the barrage of judicial support that is given to arbitration awards, it seems more likely that clients – in the civil, commercial and family sectors – will simply vote with their feet and take the better option.

Mediation and Private Law Update

Family-Law

After one of the hottest days of the year so far, and being parboiled at court, chambers, or in the office, it was always a ‘big ask’ to expect a crowd for the latest of the Dere Street Barristers Family Team Lecture Series.

However, Ross Lee on Family Mediation, and Karen Lennon’s Private Law Update (together with two CDP) proved to be more than a sufficient draw.

Yesterday afternoon’s session was held at the Royal York Hotel, right in the centre of York and within jogging distance of Dere Street Barristers South premises in Toft Green.  From the windows of the Crown Room, the Yorkshire Wheel provided an elevating backdrop to this fascinating lecture.

Ross Lee opened the proceedings with a potted history of the developments in mediation – from the early 1990′s of Lord Irvine and Lord Woolf:   Halsey v Milton Keynes NHS Trust (2004) EWCA Civ 576 – to ADS Aerospace v EMS Global Tracking (2012) EWHC 2904. It rapidly became clear that family mediation, from its tentative start, is now becoming central to the process of resolving disputes concerning both children and finances.

Naturally for a Family Group Lecture, Ross Lee’s principal focus was on the development in family law – addressing the contact activity direction to attend a Mediation Information and Assessment Meeting (MIAM) under s11A Children Act 1989 and r.3 Family Procedure Rules and Practice Direction 3A  – Pre-Application Protocol for Mediation Information and Assessment 3A. This he set in the perspective of the Law Society’s response to Norgrove. As a group we explored the will of the courts to apply r.3 actively, and concluded that the district bench still has some distance to go.

This raised the question of compulsory mediation – not simply in private family law matters, but in financial remedy proceedings.  ‘Expecting’ and ‘requiring’ attendance at MIAMs are two different concepts arising from differing cultures. Attenders appeared to favour an element of compulsion in relation to the mediation process.

Finally, Ross Lee addressed the rise and use of Arbitration in family proceedings – opening the door to the private and confidential resolution of family conflicts. Is this the beginning of ‘private courts’ for family conflicts? Ross drew our attention to AI v MT (2013) EWHC 100 (Fam) where between paragraphs 26-37 Mr Justice Baker considered the use of arbitration in relation to proceedings involving children.

 

Karen Lennon updated attenders on CW v SG (2013 EWHC 854 (Fam), W (Children) (2013) EWCA Civ 335, AB v BB (2013) EWHC 227 (Fam) and Re H-L (A Child) (2013) EWCA Civ 655.

CW v SG and W (Children) concerned applications relating to Parental Responsibility, and when – and in what circumstances – this could or should be terminated. Karen Lennon drew our attention to the conflict of approach between the cases and the difficulty practitioners may encounter in this area.

AB v BB concerned the risks to children of a direct contact order with their father. In this case, mother gave evidence by video link and the court balanced the father’s Article 8 rights with the risks arising from contact. The case has significance arising from Mrs Justice Theis’ test at paragraph 13.

Re H-L (A Child) concerned the appointment of experts and R.25(1), a case featuring Janet Bazley QC and Carly Henley – both members of the Dere Street Barristers Family Team who were commended by the court for “the helpful way in which they have assisted the court in teasing out both the detail of this case and the wider implications of the new rule”.

Importantly, Lord Justice McFarlane prefaced his judgment with these words,

“In preparing the judgments which are now being handed down I have had the benefit of reading in draft the judgment of Sir James Munby P in which he sets out general guidance upon the interpretation of Family Procedure Rules 2010, rule 25.1 which restricts expert evidence “to that which in the opinion of the court is necessary to assist the court to resolve the proceedings”. I would wish to associate myself, word for word, with the guidance contained within the President’s judgment in this case. The judgment which I now give seeks to apply the approach described in the President’s judgment to the facts of the present case.

The court made reference to Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535[2008] 2 FLR 625, paras [120], [125]. R25(1) it was said “has a meaning lying somewhere between ‘indispensable’ on the one hand and ‘useful’, ‘reasonable’ or ‘desirable’ on the other hand”, having “the connotation of the imperative, what is demanded rather than what is merely optional or reasonable or desirable.” In my judgment, that is the meaning, the connotation, the word ‘necessary’ has in rule 25.1.

So, now we know exactly what the court expects!

Of importance, Karen Lennon asked us to consider the case in relation to private law proceedings where experts may be required and where the same test would be applied.

This, the second of nine lectures in the current series, was a superb resource, saving those attending a considerable amount of work in sourcing these important cases and materials. Discussions continued after the lecture, until the final pod of the Yorkshire Wheel came to rest – a fitting end to two fascinating lectures.

The Headmaster’s slipper

headmaster2

In a previous posting Family Proceedings on the Move we caught sight of Judge Stephen Alderson’s pincer move concerning the drafting of court orders by advocates.

With the imminence of the Single Family Court, and the critical time limits by which it will be judged, a further new direction has been given concerning the filing of orders. I have set it out in full below, with some highlighting.

When many years ago, this blogger came to practice at the Bar, the judges drew their own orders – for that was a part of their job  - for which they were paid.

Now, it seems, it is a task for the advocates – for which in publicly funded cases, they are not paid. No doubt the President would deem it to be part of the not-inconsiderable ‘pro bono’ work of the 21st Century Bar.

What is even more questionable is the way in which the burden shifts deftly from the Applicant  ‘litigant in person’  - to the privately paying Respondent.

So, not only does a represented party bear a responsibility to prepare the case summary, court documentation and bundles, but now to spend further time after the case has been completed in drafting the orders. Those who responsibly seek representation, end up paying the whole cost of case management.

Of course, counsel and solicitors can and do prepare perfectly agreeable orders when needed, but there are cases where a draft order limps back and forth before a reluctant agreement is reached. That is because the advocates have to unravel from the judgment what the judge really intended – and sometimes this can be a mind-boggling affair.

When we listen to a judgment, we take from it a differing emphasis or ‘spin’ , and this may find its way into the order that we draft. Other times, the judge may fail to cover a point that could have been picked up by the judge had she or he drawn up the order. In such cases it is left to the battle lines of counsel and solicitors who may have very different views from the judge.

But for now, it is to be our job. Do it to pleasure the judges. Fail – and it appears that you will be punished on costs. And you don’t want that!

Submission of draft orders for approval in the Single Family Court

This direction applies to the High Court and all of the County Courts sitting in the area of the jurisdiction of the Northumbria Cluster and North Durham Courts.

It has become apparent that on a number of occasions Counsel, advocate Solicitors and/or instructing Solicitors have been responsible for delay in submitting draft orders for approval by the Judge when required to do so and this has caused disruption to the management of cases in a proper time frame. A considerable amount of Court time is being spent pursuing Orders causing delay in producing sealed Orders for the parties.

While it is accepted that in a few individual cases that the Judge and the Advocates may make separate arrangements, at the Advocates request, this direction sets out the expectations of the Judges to apply automatically in all Family cases.

  1. In all cases the responsibility to draft orders and submit them to the Court lies initially with the Advocate/instructing Solicitor for the Applicant however if the Applicant is not represented, then the responsibility falls to the Advocate/instructing Solicitor for the First and then the subsequent Respondents in order unless all of the parties are unrepresented.
  2. In all hearings before a High Court Judge, a Circuit Judge, Recorder or District Judge the Advocate/instructing Solicitor shall submit a draft order for approval within 48 hours.
  3. In the case of final hearings of applications for a Financial Remedy under Part 9 of the FPR 2010 the Advocate/instructing Solicitor shall draft and submit the Order for approval by 4:00 pm on the seventh working day after the close of the hearing.
  4. All draft orders following a hearing shall be submitted by e-mail in Word format (not PDF) to the relevant Court as listed below or by agreement to the individual Judge directly.
  5. If an Advocate/instructing Solicitor has not submitted a draft order as above or as individually agreed then the matter will be referred to the Judge and if necessary listed for a mention before the Judge for an explanation of the delay and the costs of that hearing will be at large.