Coroner acknowledges my Alfie Evans judicial review claim

The defendant senior coroner, Mr Andre Rebello, has acknowledged service of my claim for judicial review of his decision not to investigate the death of Alfie Evans (9th May 2016 – 28th April 2018).

He hasn’t really responded much to the grounds for judicial review that I have pled.  He has, instead, quoted extensively from our email correspondence on 8th and 9th of May this year, and annexed the transcript of the injunction hearing of 14th May 2018.

The correspondence acknowledging service of the claim is here.

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33 Comments

Filed under Alfie Evans, Children's Rights, Family Rights, Law

33 responses to “Coroner acknowledges my Alfie Evans judicial review claim

  1. Alistair

    What do you mean it doesn’t engage with your grounds of appeal? Did you actually read the submission part? It completely annihilates them. You don’t have standing, the Supreme Court held that Alfie wasn’t in state detention, there was a recorded cause of death. You should give up now or you’re going to get a costs order against you, which could be thousands. Do you have that kind of money? Because they’ll bankrupt you if you don’t. You’re too late now to amend your grounds.

    • Thank you, Alistair, for your comment, which I have “liked”.

      I have been legally advised today, henceforth to play my cards closer to my chest. However, I want to pay you the respect of responding as follows, albeit strictly without prejudice. I now have counsel. The following are my thoughts, not his.

      The defendant has purported to infer, at his Section C paragraph 7(i), from my admitted lack of CJA s47 PIP status, a want of standing to JR a decision of his not to investigate the death of a stranger. He has not addressed the content of my pleadings that anticipate this false conflation on his part, of two quite distinct statuses, which need to be gauged using quite different legal tests.

      I have pleaded that the courts didn’t hold that Alfie wasn’t in state detention, as you assert. The Supreme Court didn’t overturn the CA express finding that if Alfie was in state detention when his facts were similar to those in Ferreira, then that detention was lawful. The CJA test isn’t reason to suspect that the deceased died in unlawful state detention. Reason to suspect any sort of state detention ticks the statutory box, including state detention ordered following a best-interests finding of fact in one of the state’s own courts.

      When Alfie’s facts resembled those in Ferreira, those facts did not per se provide reason to suspect state detention, because of the Ferreira doctrine. But Ferreira does not teach that no detention in a hospital is detention merely because it is in a hospital. There may be other reasons to conclude that a particular detention, even in a hospital, is detention for CJA purposes. In any event, Alfie’s facts at death are sharply distinguished from those in Ferreira. The Ferreira doctrine only kicks in when there are Ferreira-like facts.

      I would be unwise to comment publicly now upon the question whether Alfie’s cause of death was known or unknown. Suffice it to say that that is not the mainstay of my grounds for judicial review and the loss of that pillar would not lead to the collapse of my case. Pulling, rugs, and feet spring to mind, when I think about recent revelations on the telly. I am glad that reason to suspect cause of death being unknown isn’t my only grounds for JR.

      I found unsettling your comment, “You’re too late now to amend your grounds.” How did you know that, for the first time, I have had somebody other than myself working for me, as it happens on exactly that, and as of only today? I haven’t announced this news publicly. I have told only the court and the defendant so far that a professional re-drafting of my claim is in the offing. How did you find out about this? And why do you say that it is now “too late” for me to amend my claim? In Clift v Slough, the litigant in person Jane Clift acquired counsel a week before trial, who redrafted her pleadings the day before trial, if I remember correctly.

      • Alistair

        I understand what you’ve pleaded. The problem is I don’t agree with it. The court of appeal and supreme court did not decide that *if* Alfie was detained, then that detention was lawful. They decided that he was not being detained, *and* that if that was wrong, the detention was lawful. That’s the fundamental premise of your whole claim, and it’s wrong. Without it the rest falls away. As for standing, you don’t fit the JR test for that, so even if you’re right about the PIP test being different, you don’t get any further. [Ferreira] states the clear principle that if you are in hospital being cared for and can’t leave because of that care, it’s not state detention. The court of appeal and supreme court already relied on it in Alfie’s case. It’s not a doctrine, it’s a legal principle that was already set out in previous cases. JR gives you 3 months, maximum, to bring a claim. You’re beyond that deadline now, so you can’t amend. Clift v Slough wasn’t a JR case – you can amend pleadings before trial, but not where you’re already past a time limit.

        • The coroner is likely to have interpreted as you have the paragraphs 59 to 64 of the second of three CA judgments, [2018] EWCA Civ 805. However, I particularly noticed the use made of the phrase “even if” in that passage. We shall see what the court makes of the matter. I do not think that the senior courts considered that the answer to the question about which you and I disagree was as clear-cut as you think it is. There are dicta in the judgment of 14 May of Garnham J that prejudge the question, but that question had not been argued that day. I must hope for a different judge from Garnham J in the JR.

          My point was that Clift was a case in which the pleadings were amended long after the limitation period had expired, with the leave of trial judge, Tugendhat J. Such use of discretion strikes me as required by the overriding objective. The outcome was brilliant. I relied on the Clift doctrine when pleading my recently successful libel claim against the Chief Constable of Devon & Cornwall. I for one will take a dim view if the court refuses to decide permission based upon a post-limitation period re-draft by counsel of my timely but amateurish initial draft of the claim as a litigant in person, I will take a dim view of that, because to me it will seem to me that the establishment is closing ranks, in a bid to keep any consideration of the broader issues that Alfie’s case raises out of open court. That would be sinister to my way of thinking.

          If you were attempting to challenge the coroner’s decision not to investigate Alfie’s death, could you have pled that challenge any better than I did? I thought I had made as good a job of that as a self-represented non-expert could reasonably have been expected to have made. Is my claim really as weak as you say it is? In my experience, there is no attempt at a renewal/reconsideration hearing to check that the grounds haven’t evolved with the issue of the 86B and the filing of a skeleton argument.

          You have probably also overlooked that during the pre-action protocol correspondence, the defendant refused to disclose the 100A or his reasons for the decision impugned. On my claim form (in section 8), I apply for directions requiring such disclosure, and for permission to amend after inspection of whatever is disclosed. if need be. Considering that I’ve had to guess the defendant’s reasons for his decision because he refused to tell me them, I don’t think I’ve done too badly so far.

          • Alistair

            I don’t understand your theory about the establishment “closing ranks” by refusing permission to amend. If they want to prevent you bringing the claim, they can just refuse permission, or dismiss the claim. If they refuse you permission to amend, it’ll be because your claim has no prospect of success (which in my opinion it doesn’t). And it’s harder to show that you’re already out of time. That’s the rule that applies to everyone, not just cases against the “establishment”. I could probably have made a better job of drafting the claim, yes, as now doubt your counsel will do. Don’t take this the wrong way, but it reads a bit “paranoid conspiracy theorist” and uses a lot of loaded expressions, where neutral ones would have been better. But ultimate you can’t make a silk purse out of a sow’s ear. There is no decent underlying claim, so no matter how well it was drafted, it’s going to fail.

            • WITHOUT PREJUDICE

              I will take a dim view if the court insists on refusing permission “totally without merit” on the papers as I have drafted them myself as a litigant-in-person, instead of agreeing to wait a few days for a professional re-drafting of my claim on the part of my barrister (who came on board only yesterday), which will not be totally without merit and therefore will lead at least to a public renewal hearing of my permission application. If that is how the court insists on behaving, I will certainly begin to believe a “theory” that the establishment has closed ranks, in order to keep my legal challenge out of the limelight of open court. If that happens, then the troll under the rickety-rackety bridge will, so-to-speak, have unsportingly eaten the littlest billy goat Gruff, instead of waiting as requested for his much better legally-qualified big brother, who is not far behind him, to cross the bridge the troll guards so jealously, his territory, the gateway to the meadow with the green, green grass.

              Which part of this “theory” do you not understand? It seems obvious to me that (for example) Garnham J, who wrote a book about coroner’s inquests, and prejudged a claim I hadn’t even drafted yet in the context of an application for an injunction, and who became visibly angry with me when I asked for a transcript of his judgment at public expense (meeting as I do the CPR means test criteria for being entitled to a transcript) … It seems obvious that Garnham J, would not like to find counsel arguing my case in open court, under the gaze of the press and Alfie’s Army.

              Do you believe that the CPR forbids the court from agreeing to my request? My request, that is, that the court should refrain from deciding permission yet because I now have a barrister? In addition, that is, to the original reason I gave on my claim form, namely a want to disclosure of the coroner’s reasons for his decision? Then where in the CPR is the court deprived of jurisdiction to direct itself thus?

              I cannot think of a right way to take your comment that my claim “reads a bit ‘paranoid conspiracy theorist’ “, so I have to take that apparent insult the wrong way. Section 1(2)(c) of the Coroners Justice Act itself “reads a bit ‘paranoid conspiracy theorist’ “, if you want to put it like that. Who that wasn’t delusional could possibly believe that it was always necessary for a coroner to investigate a death merely because he had had reason to suspect the death had occurred in custody or other state detention?

              My pleadings were drafted for a diverse audience. As I wrote in private correspondence before I had a barrister,

              No bread-head solicitor or barrister would have been likely to have played to the gallery and the stalls at the same time like I decided to.

              I was striving to achieve a style of writing that got my points across to the casually-interested general public, the judges who would read my pleadings and decide the outcome, journalists looking for a story, politicians I might need to lobby if and when I lost, conspiracy theorists and armchair political activists, potential sympathisers from the pro-life movement, my co-religionists, and barristers who might take over from me who’d be willing to work pro bono. … So, my style was doomed to be somewhat hybrid.

              I suspect that you think you could have done better, because you are a solicitor or a barrister yourself, and would not have tried to reach any other audience than the judiciary. But I believe that I have reasonable prospects of failure in the courts, and that if I fail in the courts, I should take the fight to Parliament and the people.

              The decision in Ferreira was based on its unique facts and is good precedent only when similar facts exist It is a development of Neilsen v Denmark. Being unconscious or intubated in hospital in order to receive therapy there is not necessarily state detention. Being kept in a hospital by order of the Supreme Court, in order to prevent one from receiving therapy, or life support, is another kettle of fish entirely. No wonder the CA said “even if” (twice).

              If I exhaust my domestic remedies and the ECtHR rules my application inadmissible, it may need primary legislation to arrest the mission creep of the original, narrow Ferreira doctrine, which has started to evolve into a doctrine that makes a clinical setting a no-go area for state detention, so that even a gangster serving life miraculously ceases to be in state detention the second he crosses the threshold of an NHS hospital, there to be guarded by armed prison officers lest he discharges himself untreated and never returns to prison. That is not a correct extension of Ferreira, and neither were the non-commital mumblings of the CA when criticising Mr Paul Diamond, preceded by their “but even if” disclaimers.

              That is my “underlying claim” in a nutshell. I need to bring and to lose this claim to prove to my MP that case law has not developed as Parliament intended when it enacted the CJA s1(2)(c), because of sophistry on the part of judges who are out of touch with the common man, and who, professing themselves to be wise, have become fools. Like all the best real-life courtroom dramas, this is a tale of ethics, not of technicalities.

              • Alistair

                Why would Garnham J care if a coroner he’d never met was being sued? Why would Butcher J? Their job is to apply the law, and that what they do. They’re not going to protect a random coroner, still less a load of Drs. If your paranoia were correct, the courts would never find against the government or government bodies, but the case reports show they do all the time. I don’t buy your idea that Garnham J’s view is irrelevant either-he’s an expert in this area of law, and he was trying to give you some guidance to stop you wasting your time. Your injunction was premised on Alfie being in state detention, so of course he had to make a finding on that. On the CPR, of course it’s not prohibited to make a late amendment to claims, it’s all in the court’s discretion. But there are so many factors here weighing against allowing it- why didn’t you instruct counsel earlier, you were well aware of the deadline, the coroner has already gone to the expense of responding, and the merits are hopeless. You’re likely to be told to pay the coroners costs of preparing the acknowledgment even if they do allow you to amend. And the court is likely to make a decision any day now, so you’d better hurry. Why have you headed it “without prejudice”? What do you think that does?

                • Are you a practising solicitor or barrister, or a judge yourself? Perhaps that is why you seem blind to the groupthink that I think I can discern, a discernment you have twice now labelled unkindly as my “paranoia”.

                  It wasn’t necessary for Garnham J to prejudge a future claim that I hadn’t even begun to prepare, having a pre-action protocol to follow first. He could and should have made a decision on the 14th May, based upon the correct criterion of balance of convenience, rejecting my application for (in effect) a third party injunctive interim relief. You can see from the transcript that he had not read the papers, and that he wished to question me rather than to hear my application and then judge it. My case on 14th May for that relief was weak enough without his prejudicing the future JR application.

                  I am discussing with you, in a public context, some of the broad legal issues that arise in a case in which I was unrepresented until recently. I am aware that my defendant reads this blog. I explained earlier what I meant by “without prejudice”. I mean that what I write here are my own thoughts, not those of my barrister, or necessarily what my official position will become in court after I have been legally advised. I am happy to submit to cross-examination informed by this blog, on a matter of fact as to my legally unqualified opinion. I make my comments here without prejudice to my legal position in court though. That’s what I mean by “without prejudice”.

                  I see a trajectory in the case law, from Nielsen to Ferreira to what people (yourself included) are now claiming the courts decided unequivocally about Alfie, after withdrawal of his ventilation. Notwithstanding that there was no hearing that considered whether Alfie was being detained after the ventilation had been withdrawn, a change of circumstances the Paul Diamond appears to have overlooked. The coroner has resorted to guessing how the court would have decided, had Paul raised this question after withdrawal of ventilation, which he didn’t.

                  I believe that it is disastrous that some people now consider that merely because somebody who is subject to a best-interests child-euthanasia court order happens to be held in hospital in order to prevent attempts elsewhere by his parents (and the doctors they choose) to prolong his life, he isn’t being detained by the state. Plainly, that is exactly his legal condition.

                  Many have read the judgments superficially, and said to themselves, “Well, there you are then. Detention in hospital is always incapable of being Article 5 detention.” But I do not read the nuanced and carefully chosen words of the courts that way. I am taking the coroner to court because he took a decision to read only one possible way judgments that were rightly ambivalent. He did this behind closed doors, leaving no method open to challenge this “robust” decision of his, no way of getting the courts to look at his reasoning, other than by way of judicial review.

                  It is your doctrine and that of the coroner and of Garnham J, that merely because the place in which the state was detaining a deceased when he died happened to be a hospital, the detention wasn’t really detention in the Article 5 sense, and hence not in the CJA sense, leading to a requirement for a jury inquest. Notwithstanding, that is, that the sole purpose of the detention by then was to prevent life-prolonging treatment anywhere else on the planet, so that (in his best interests, it was said) the deceased would die sooner and better. The detention was not a physical detention that was a mere side effect of incapacity, infirmity or the delivery of therapy, as in Nielsen or Ferreira. It was a legal detention wrought by a court order made for the purpose of killing the deceased by neglect, because death was what the state had found not only inevitable, but also to be the patient’s bests interests, and (in a spectacular fantasy of the legal fiction genre) what Alfie would have chosen for himself, if only he had had the mental capacity.

                  That is your doctrine, and Garnham J’s, and the coroner’s. I say that this mission creep of the Ferreira doctrine needs to be tested properly, not assumed by a coroner already to have happened on evidence I say is flimsy, and therefore applied as a mere, casual administrative decision on his part. I say that this advance of euthanasia within British jurisprudence, wrought by judicial activism that is far from pro-life, needs to be challenged and tested and opposed to the hilt. I am calling it a “disaster”. The courts have done off their own bat what Parliament has shrunk from doing using primary legislation. All that stands in the way of this ugly future of euthanasia becoming entrenched and routine, is the risk and the hope of a perverse verdict on the part of a coroner’s jury composed of ordinary citizens with better morals than the likes of Hayward J.

                  Please see also:
                  Scott’s law: Talk to me, don’t just starve me to death!
                  https://johnallmanuk.wordpress.com/2018/08/03/scotts-law-talk-to-me-dont-just-starve-me-to-death/

                  • Alistair

                    You keep saying that only you have the subtlety to pick up on a different interpretation of the court of appeal’s judgment, but doesn’t it surprise you that judges and lawyers (which you are not) all disagree with you on that? And the coroner you are suing was involved in drafting the CJA 2009 (where you were not), so I would think he has a pretty good idea of what parliament intended. If you really think that the children act is wrong and ought to be revised, bringing a pointless JR is not the way to sort it. If and when you lose, all that will prove is that the law is already settled and your claim was hopeless. Rather than wasting your money on it, you can just lobby for whatever change you think is necessary now. Your claim is now on such a narrow small point (how should the coroner have read a passage in a judgment that can only be read another way by ignoring half the words) that it’s dead in the water.

                    • For the first time, I have refrained from clicking to say that I “like” a comment of yours. You have started to give little attention to what I say, and have instead started to criticise me personally, without answering my point, except to belittle it.

                      I haven’t, as you insinuate, kept saying that only I have the subtlety to pick up on a different interpretation of the Court of Appeal’s judgment. I haven’t even said that once.

                      I haven’t said either that I am surprised that judges and lawyers “all” disagree with me. I have not even said that judges and lawyers “all” disagree with me, because that would not be true. I have told you that I am not surprised that some judges and lawyers disagree with me, and why I am not surprised. You have characterised my lack of surprise, and the reasons for it, as “paranoia” and in other similar, stigmatising terms. You have begun to irritate me, by becoming ad hominem, and avoiding the issue that I have raised itself.

                      You have also tried twice now to use scare tactics, twice now mentioning costs.

                      Originally, I welcomed your comments, and upvoted them as “liked”, because you had apparently bothered to read my claim, and seemed then to be willing to debate the issues. I will give you another chance to do that. If you turn it down, and instead misrepresent me again, or belittle me, or try to intimidate me with talks of costs, I shall begin to think that you are not sincere about wishing to discuss the issues.

                      Is the law of England (as you and others seem to believe) that the state’s detention of somebody in hospital at the time of his or her death can never be state detention for CJA purposes, merely because the detention of the deceased happens to take place in a hospital? Or is it the law (as I believe it to be) merely that detention of that person in hospital isn’t necessarily always state detention for CJA purposes just because the state owns the hospital and the patient lacks capacity and physical ability to decide to walk out of the hospital, or is physically restrained temporarily sometimes in order to render safe and effective the administration of therapy or life-prolonging treatment?

                      That question, whether or not the mere fact of being in hospital rules out CJA state detention, whatever other compelling reasons there might be for suspecting CJA state detention in an individual case, is what you call a “narrow, small point” that is “dead in the water”. To me, it seems to be an extremely important point, of great importance. If the judiciary side with you, then Parliament needs to rein in the judiciary, lest the hospital becomes a carte blanche no-go area for the customary coroner’s jury.

                      We have certain concepts of immunity, of exemption. In the Torah there were cities of refuge. At one time, people would grab hold of the doorknob of a locked church building and claim “sanctuary”. The police in hot pursuit of a suspect sometimes must stop chasing when the suspect crosses a border, and always when he enters an embassy. Likewise the law says that the inconvenient provision of the CJA to do with deaths in state detention are something the state can always get around, just by using a hospital to do the detaining in, even when the purpose of the detention has nothing to do with the traditional role of hospitals, but is instead ordered to procure the best interests euthanasia that state has chosen for its captive. That would create a hospital immunity to the CJA comparable to the diplomatic immunity of a foreign embassy. That, I say, is something wrong that must be put right. To me, it would be an honour to go personally bankrupt trying to right that wrong.

                      Please, focus your thoughts on my ethical position. That’s the high horse I’m on, from which fear of the vengeance of the state wrought against me in the form of a costs order won’t dislodge me easily. Argument might. Misrepresenting me, and scare tactics, all the time avoiding talking about the issue itself, probably won’t get you anywhere, however long you continue it.

                    • Alistair

                      I’m not interested in whether you “like” my comments. I’m trying to explain the law to you are clearly and as best I can. But you just keep making the same points in response. This isn’t a matter of legal principle to be argued over, it’s unarguable. Frankly, I can’t see how your counsel could professionally make the argument as it is currently. Your “ethical position” is strange in itself. You said that someone who dies in hospital under Alfie’s conditions should get a public inquest with a jury originally. That you said was so that there could be a public hearing into the circumstances. Now you’re only asking for a paper decision- “behind closed doors” as you put it. That’s a weaker and more pointless hearing than those already conducted. A hospital can’t make a best interest decision – only the court can after a public hearing with independent expert evidence. Having an inquest at all after that adds little. Having a paper inquest adds nothing. I’m not trying to scare you with costs. Just make you aware of them.

                    • Do you have any reason to suspect that I don’t already understand what you are trying to explain? Are you surprised that I repeat my point, every time you fail to answer it?

                      I am not asking for an inquest behind closed doors and without a jury. You may have misunderstood something else I said on this point.

                      My ethical position is that there is a world of difference between a best interests court order that rules that a patient must be treated against the wishes of family members and detained to enable that, and a best interests court order that a patient must not be treated, even though his family want him to be treated, and must therefore be detained in a hospital that can be relied upon to obey the court, by withholding treatment from the patient, in the hope that this will hasten his death, in his own best interests; lest otherwise the patient receive elsewhere, outside the court’s jurisdiction, treatment that the British state does not want the patient to receive.

                      If you find that ethical position of mine strange, then please explain what you find strange about it. No more red herrings, please. You would have case law that was developed in normal circumstances when life is considered to be in the best interests of the patient, to be applied in new circumstances in which the state has decided that a child’s best interests are death sooner rather than later, overruling the parents. If you don’t see a real major difference between the two different applications, I don’t know how to explain any better than I have, that which you find “strange”.

                      Very simply, can you not see any moral difference between a best-interests life order, and a best-interests death order?

                      The public is comfortable with the queen’s judges insisting on children of J*h*’s Witnesses receiving blood transfusions when they need them in order to stay alive. The public is, or ought to be, uncomfortable with the state holding onto a child, in order to make sure he or she doesn’t receive a life-saving blood transfusion overseas, because the queen herself (or one of her judges) has become a J*’s Witness, and therefore makes an eccentric value judgment that to receive a blood transfusion (or resumed ventilation) is a fate worse than death.

                      The symmetry you seek, between best-interest life orders and best-interests death orders of the state, simply isn’t self-evident, whereby each is equally worthy of respect, and that to challenge a death order when it is based on the sound legal logic of the more usual life order, is a “dead in the water” folly for a litigant-in-person with more money than sense. Life and death are opposites. Is that so “strange” and observation to make? I am I discriminating unfairly against death, to wish to afford it different and less favourable treatment, when the state chooses death for my child, rather than life? Puh!

  2. Fin

    Well done John! There is a lot to take on board, legally and practically. This case is far from over in all senses and in the world right now with life that is SO precious, not being treated as such is such a sad and disgraceful state of affairs…
    If not the failings of the Coroner then the failings of the state who paid police to guard and the failings of the doctors to travel all avenues and their wrongness in the length the amazingly strong child would survive independently!!So many questions beyond this.
    With love and prayers for you, the Evans and James families

    • I can relate to being a doctor, and to believing that a patient of mine really had no hope, and feeling sorry for the child’s parents, deluded by false hope. I can imagine advising the parents not to waste their time and money trying to get a second opinion, or taking their child to a different doctor who was marginally less pessimistic than me, because I didn’t think myself that any doctor would be able to offer any more hope than me, who thought there was zero hope for that child. So far so good. I can relate to all that.

      What I cannot understand, is the authoritarian mentality of a doctor whose reaction to a reply to the effect, “We’d still like to try though. Where there’s life there’s hope, eh?”, is to invoke all the might of the crown of England, to enforce the “finders keepers” policy, whereby the first hospital one takes a sick child to becomes, to one’s child, like a Venus Fly Trap, or as a spider’s web is to a fly. I just cannot relate to the motivation of doctors who are so determined to prevent their patients shopping around, choosing different doctors. I cannot relate to taking a patient’s parents to court, or calling the police to stop a child patient’s parent discharging his or her son or daughter, lest another doctor elsewhere on the planet manages to witness a miracle cure in the future that one considered unlikely oneself.

  3. Alistair

    Can you explain what point I’ve failed to answer? I’ve responded to everything you’ve said, which can be dismissed fairly easily. Your ethical position, like your legal one, is based on a false premise. Alfie was not offered treatment abroad. It was palliative care here, or palliative care with travel in Italy. You clearly aren’t getting the point of the judgments.

    • I am getting pretty fed up with your insinuation that there is something I don’t “understand”.

      As it happens, it was (as we both know) palliative care here or there, either definitely without, or possibly with ventilation, respectively. But that wasn’t a true “premise” for the judgment, whereas some other false belief you attribute to me (but which I have never expressed) was a *false* premise of mine.

      The ratio decidendi of the judgments did not turn on the fact that Alfie wasn’t being offered treatment abroad either. The premise of the judgment was that a doctrine to the effect that the state may overrule natural parents in the best interests of their child, which is applied routinely and uncontroversially when the state is minded to make a life-prolonging order, was in this case adapted for application in a case when the state was minded to make a death-hastening order the purpose of which was to prevent the patient’s life prolonged.

      Previous life-prolonging orders of the state, and this new-fangled type of death-hastening order of the same state, share the same best interests rationale. I do not impugn either decision in my present proceedings though. I point out in passing that the fact that it was, as you say, “palliative care here, or palliative care with travel in Italy”, only influenced the balancing exercise that determined Alfie’s best interests in the mind of Hayward J, not the reasoning process that led to what he court ordered, once he had made his determination of best interests.

      Despite a so-called “army” of protestors, and heavy policing, nobody listened to the public. This was an in-house decision of the judiciary, including Hayward J of all people. When Alfie died, I thought, “Well at least a coroner’s jury will now get to say what we, the people, think of the shameful carry-on.”

      In a political act, the coroner set out to make sure that the people’s verdict – the verdict of a coroner’s jury – on the shenanigans of their various lordships would be silenced, as Alfie’s Army had been ignored and threatened during an expensive policing operation. How? By his guessing what would be decided by the self-same lordships if, in the new, different, precise circumstances of Alfie’s death, they had been asked again for a writ of habeas corpus, and this time had decided not to prevaricate but to make a direct finding of fact whether Alfie had been detained when he died.

      I hold the coroner to proof that when a patient dies untreated in hospital subject to a death order, this falls within the Ferreira precedent dispelling all suspicion that the death might have occurred in state detention. I do not believe that the judgments on which he would rely actually entitle him to assume that that is what the courts would find if that submission is properly tested. It is not even what the courts said in the judgments they made before ventilation was stopped.

      • Alistair

        I know what the premises of the judgments were. What my comment said was that the premise of your ethical argument is wrong. You say the whole point of your JR is to get to the position where inquests are always ordered when palliative treatment alone is decided to be in a patient’s best interests as opposed to treatment elsewhere. But there was no treatment available elsewhere in Alfie’s case. The premise of your ethical position is therefore wrong. Alfie’s case was about withdrawal of long term life support, not euthanasia.

        • The withdrawal of long-term life support, when this will shorten life, is simply one type of euthanasia.

          • Alistair

            By that logic, everyone ought to stay on artificial life support perpetually. It can be made to last decades. Or by extension, failing to attach life support in the first place is a type of euthanasia too.

            • I wasn’t applying any “logic”. (You logic is a “thin end of the wedge” argument.) I was appealing for accurate language.

              The Wikipedia entry begins, “Euthanasia is the practice of intentionally ending a life to relieve pain and suffering.” Clearly, that definition of euthanasia includes practices that are right and legal, but also practices that are wrong and illegal.

              The only pertinent question in the JR is whether best interests euthanasia that is ordered by the state has the same privilege as life-prolonging measures ordered by the state – the privilege, that is, of exempting the state from the usual requirement for an inquest when a patient dies in state detention.

              If the court had ordered treatment for Alfie that his parents didn’t want, in the hope of prolonging his life, I’d be happy for the Ferriera doctrine about when detention isn’t detention to exempt that death from the requirement for an inquest. With the shoe on the other foot, though, I don’t think the courts or the coroner (or you) have thought carefully enough yet about the ethics of the situation. Alfie’s case is different from Ferreira’s, because Alfie died untreated and subject to a death order forbidding treatment, and preventing his removal to a jurisdiction that might have kept him alive longer, in the hope of discovering a treatment and trying it out. I think that difference makes a difference. It is clear by now that you don’t. You see a perfect symmetry to that when the state chooses death and the parents choose life, the state trumps the parents and gets a get-out-of-inquest-free card, just as the state does when the state chooses life and the parents would have preferred death.

              • Alistair

                Your whole argument there is based on emotion and the false premise that Alfie’s condition was treatable, or might be in due course. It was not and is not. I wasn’t arguing the thin edge of the wedge. I’m not sure how you thought I was. I’m arguing that if taking someone off life support that kept them alive when they otherwise wouldn’t be Is euthanasia, then so is failing to put a terminally ill person on life support in the first place. And if you’re saying that people should be kept alive artificially until a cure is found, then every cancer patient ought to be ventilated perpetually. That’s the logical consequence of that argument, and saying I haven’t thought about it rings hollows I’m afraid.

                • I recognise a “thin end of the wedge argument”, whenever somebody says, “if you ban/allow this, then, logically, you must also ban/allow that, to be consistent”.

                  I really do think that you are struggling not to use straw man arguments against me all the time, because you are thinking about what I could be thinking that you could easily refute, rather than what I am actually saying.

                  It is false dichotomy to say that believing that the sanity check on judicial decisions that scrutiny by a coroner’s jury offers is desirable following a state death order, requires one also to believe that life support should never be removed.

                  • Alistair

                    No, a thin edge of the wedge argument says “if you allow x, then 2x will be next” when there is no reason to think 2x will actually follow. I’m saying is “you agree with x; therefore you must agree with another example of x”. That’s not the same thing. I think you need to reread your comment. “Dichotomy” is not the right word there, and you’ve misunderstood what I was saying. You’ve wrongly conflated your JR argument with the conclusion that I said followed from your ethical argument. I don’t think you’re keeping up with me on this discussion. We’re done.

                    • You refer to something that you call my “ethical argument”. Specifically, you say that I have “wrongly conflated” my “JR argument” with a “conclusion” that you said “followed” from my “ethical argument”. You say that you don’t think that I am “keeping up” with you. You are right. When I read that sentence, I had trouble understanding what you meant. I couldn’t remember what “conclusion” you had ever said followed from what you call my “ethical argument”. But I was even more behind you than that.

                      You have referred more than once now to what you call my “ethical argument”, but I have not presented you with any “ethical argument” in support of my stated “ethical position”. I wouldn’t know how to begin to construct an ethical argument that you would accept as valid, based upon what axioms. An ethical position is not something that I understand as capable of being proven right or wrong by using a logical argument. An ethical position is, to my way of thinking, a value judgment, not (for example) a finding of fact, or a finding of law.

                      In these cases, courts make findings as to what, in the opinion of the court, is in the “best” interests of the sick individual. The use of the word “best” in that cliche, indicates that the court is making a finding not of fact, nor of law, but a finding of what its own values are. It is finding out (and revealing) its values , if only because we can work backwards from how the court prefers to apply its non-explicit values to the facts of the patient. The court is taking an ethical position that can (so-to-speak) be reverse-engineered, from what the court decides to order the UK to do to the patient, including (in this case) the UK not handing over the patient to any foreign power that might make a different value judgment from the UK, and therefore treat the patient differently (either worse or better, depending upon one’s value judgment).

                      In a very real sense, one might thus say that Hayward J did not try Alfie and find his life worthless, as it might seem at first. Rather, Alfie tried Hayward J, and the UK itself. The UK’s prestige is now lower in the eyes of Italy, Poland and the Holy See. There may be other national jurisdictions in which the UK’s prestige has increased. The jurisdiction of the greatest and final court is the most important opinion of all. If that places a higher value on Alfie’s life than did Hayward J, then Hayward J is on track to find himself in trouble on the Day of Judgment.

                      I have found it difficult to achieve any sort of dialogue with you in which we are both talking about the same things. There recent example of impaired communication, that you thought you had found a conclusion that followed from my ethical argument, whilst I didn’t think I’ve ever offered you an ethical argument for any conclusion to follow from, is not the first occasion of our conversing at cross purposes. If you wish us to be “done”, so be it. Thank you for your time, and such courtesy as you have shown towards me. I hope you are more fully satisfied with my courtesy towards you, despite your apparent dissatisfaction with my ability to “keep up”.

                      God bless.

                    • Fin

                      Wow John, you are a patient and virtuous man! Prayers that this ‘palliative care #euthanasia does not become more obviously apparent in our places of ‘care and life preservation!!’ How frightful to see our worlds disregard for the miracle of each unique precious individual. May you find strength in your values, morals, ethics and beliefs!!

  4. Grace

    Hi John,

    Can I ask what your qualifications are for this legal challenge as I’m reading it and it seems a bit muddled. You say you were working at home as a freelance paralegal specialising in “public v oppressive public authority” cases, but in a reply to Alistair up there you say you have a “legally unqualifed opinion”.

    I’d certainly not challenge a coroner without seeking legal advice first!! (I notice you say you have “someone on board now”, but not at the start?)

    Regards

    • Thank you for your enquiry.

      No legal qualifications are needed to bring a court case on one’s own behalf. I have never qualified as a solicitor or a barrister. I took the Common Professional Examination in 1995, but then I found I couldn’t get a bank loan to take up my place at the Inns of Court School of Law for the one-year Bar Vocational Course. After leaving my career in software development in 2006, I worked part-time as a freelance paralegal. In my CV, I describe that work as follows:

      66

      This work involved me in both of the following roles:
      (1) assisting minor clients of my own who were litigants in person, as their only legal help,
      (2) working as part of a team that included myself and two barristers and two solicitors, all
      assisting one particular common client of ours, all accountable to that client separately and
      directly, whilst liaising with one another as required.

      99

      For the major client, who used a barrister and a solicitor-advocate, I prepared the bundles of evidence electronically, which amounted to four lever arch files when printed out.

      I received a short legal advice pro bono before bringing the JR claim, which concurred with my opinion that the coroner’s decision was wrong. I drafted the claim myself. I acquired the services of a barrister less than a week ago, who is likely to want to amend the claim I drafted.

      I am sorry if you found my claim muddled. Please feel free to ask me to explain better any part of it you have difficulty understanding.

      I hope this clarifies. Please feel free to stay in touch.

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