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.
Cet animal est très méchant. Quand on l’attaque, il se défend.
JohnAllman.UK 
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.
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.
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,
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.
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!
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.
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!
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.
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.
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.
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.
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.
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.
laughable
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!!
Alistair,
Update regarding the JR app.
It’s been deemed to be “totally without merit”
http://ukinquestlawblog.co.uk/rss-feed/109-application-for-an-inquest-into-alfie-evans-death-is-totally-without-merit
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.
Hi John,
I’m surprised by that pro bono legal advice you got. “The coroners decison was wrong” doesn’t sound like any legal advice I’ve ever seen. Are you sure they are reputable? I hope they weren’t taking you for a ride.
“The coroners decison was wrong” was a precis and a paraphrase, of course. I provided limited information in response to a polite question. I am not intending to publish privileged correspondence on the internet!
I still find it surprising that it was so unequivocal. Who gave you it?
I don’t wish to publish privileged correspondence, including details of with whom I had that correspondence.
This sounds like – ‘interested, not interested!!’
John, you are 1 respectable man.
So you lost the JR totally without merit. That more or less makes you a vexatious litigant. Well I won’t say I told you so.
Thank you for your interest. I also predicted one day losing a life at this most difficult platform, even before I started to play. So I wouldn’t mind at all if you did say “I told you so”. Many did, and I always told them they may well be right. However, the game is not necessarily over yet.
The possibility exists under the CPR to brand somebody a vexatious litigant when an ordinary claim is struck out, though this is not used willy-nilly. That provision doesn’t apply as far as a JR permission decision like this is concerned. This type of decision blocks the normal route to an oral permission hearing, but … Please try to appreciate that the decision you know about is only “game over” if I do nothing about it. Please understand that I am well-advised at this stage to remain silent temporarily, as to whether or not I am doing or intending to do anything about it and, if so, what.
My agenda is about speaking truth to power. Trying to clarify or change the law is something that activists sometimes do, by bringing litigation that they fully realise might well accomplish nothing other than to confirm what is wrong with the state of the law. That isn’t vexatious. Vexatiousness arises when somebody acts in malice against (for example) a neighbour against whom he is involved in a feud, abusing the court process for the purpose of annoying the neighbour who is his enemy.
Changing the law is something that political activists working as judges also do. They have reason to gloat that their own activism will usually be more effective than that of private citizens like me. They get to decide what pamphlets have “merit”. To all practical intents and purposes, they change the law, that is. I do realise that judges will always say that theoretically, they are only declaring the law, not making it up as they go along as it seems.
If it hadn’t been for a long line of earlier euthanasia judgments, starting more-or-less with Tony Bland and continuing up to and including Alfie’s hearings and now #NHSvY, and other judgments altering the balance of power in the family, especially between parents and the state, I wouldn’t (in effect) be trying to change the law back to something closer to what it used to be before case law and legislation in my lifetime.
This JR is only one battle in a long war – and not one that it matters to me personally to win or to lose, as you like to measure victory or defeat. I shall have won my personal spiritual battle, as long as I know that I have done my duty, by following my conscience. After all, Alfie wasn’t my son. This “ghoulish” litigation, as it has been called, won’t raise him from the dead. His parents appear to have snubbed it. I haven’t got long left to live myself to enjoy vindication in this life if that comes. I certainly didn’t stand to gain any money by standing up for what I believed was right. Quite possibly, historians will not mention me much, or at all. But I would have felt guilty if I had not tried.
When I read my claim, I thank God for the gift, on that occasion, to be able to make a point as well as I did. I don’t need Mrs Justice Cockerill’s praise, or yours, for my self-esteem. As a historic document that said it as it was, even if my words fell on deaf ears, I am honoured to have been the messenger who put into writing what a number of people thought. That is a more exciting and satisfying use of my limited legal education than working as a lawyer. Lawyering is a better amateur sport than it is a profession.
You’re incorrect about vexatiousness in the JR context. A TWM certification was designed as an acknowledgement that a claim was so hopeless and abusive as to justify a civil restraint order, and the court is required to consider making one when it issues a TWM certification. If you made more of these hopeless applications in this case, you’d probably find yourself branded a vexatious litigant.
You’re also vastly overplaying your own skill and influence. Your views are seriously outdated and far too simplistic for the vagaries of modern medicine. I’m not sure what point you think you made in your claim, but it wasn’t a legal one. You may enjoy “lawyering” as a “sport”, but there’s nowhere you can go from here legally.
You may be right that a JR permission refusal TWM activates the duty to consider a civil restraint order or a vexatious litigant order. (This said, I’d have thought that the majority of JR permission applications are refused TWM.) However, I would respectfully invite you please to note that my purpose in publishing details of this claim and inviting comments was not primarily in the hope that readers would offer me free advice about the Civil Procedure Rules, or actual legal advice, as you have done.
“You’re also vastly overplaying your own skill and influence.”
I believed that God called me to take this on, and, when the time came to draft the pleadings, I asked for his help to do a decent job using my own limited skills when drafting my claim, trusting that I was receiving his help. I put this task off as long as I could, hoping for help to arrive from somebody better-qualified, e.g. a direct access barrister. That help did not come in time. So, however lacking I may seem to be to you in skill and influence, it was obviously God’s will for me to do this job for him rather than anybody more skilful and influential. You must take it up with God if you have any criticisms of his decisions. I am honoured to have been privileged to plead this cause. It took me completely by surprise that the task came my way like that.
I have no influence except what influence God determines my words shall have, deploying his own great influence.
“Your views are seriously outdated and far too simplistic for the vagaries of modern medicine.”
Views are never “outdated”. They are never “wrong” either. His views are what a man sees, from the point of view to which his life journey has brought him. People only see different views, because their different journeys have brought them to different positions. If you wish to make an accurate model of Mt Everest, your labour needs to informed by the view seen of Mt Everest from many different angles, not just one, your own. Your model will be worse if you start to believe that there is right angle from which to look at Mt Everest, and that other angles are wrong.
I suspect that what you mean to say is not that my views are outdated, but that my beliefs and values are outdated. Well, I grant you that they are old-fashioned compared to certain alternative beliefs and values. Whether they are “simplistic” is an interesting question. GIven how I have pleaded my cause of action, I suppose that that is a critique I have invited upon myself. However, you have said that my “views” (meaning my beliefs and values) are “seriously” outdated and “too” simplistic. I read into that (correct me if I shouldn’t) a preference on your part for beliefs and values that are modern and sophisticated. You believe that it is possible to diagnose beliefs and values (or “views”, as you call them) as in some sense “wrong”, if they are either very outdated, or very simple. Am I right?
Somebody (perhaps C S Lewis?) referred to the first attitude as “chronological snobbery”. I don’t have a handy label for the second, but perhaps you can think of one.
“I’m not sure what point you think you made in your claim, but it wasn’t a legal one.”
When I’d finished drafting my claim, I was satisfied that it said exactly what I wanted it to say, in plain English, relating everything to legal principles. I am disappointed if you didn’t reach the same conclusion when you read it. I am even more disappointed that you didn’t ask me to explain the parts you didn’t understand, or the legal principles I was relying on if you found that you could not anticipate how I’d argue my eventual the case given the chance. If you want to take our conversion forward, I suggest you start doing something I hoped commenters on this blog would do: criticise the content of my claim as drafted. It doesn’t include a skeleton argument, so it doesn’t argue the case. Therefore, if you are tempted to think that the claim is unarguable, because you have found a part of it such that you don’t see how it could be argued, please just ask how I’d argue it. That’s the sort of intelligent conversation I’d hoped for.
You can keep talking here, or you we can go to the post that links to the pleadings that you now need to start quoting, here:
I look forward to your next. Thank you for your interest. And kind regards.
By the way, your email address appears not to be working. I had tried to apologise for the delay in publishing your first recent comment.
Further comment on your pleadings would be superfluous now that your claim has been dismissed, as I told you it would be. It’s all very well your saying that the claim was all part of a long war, but that’s not what your earlier tweets said. You seemed very confident of the legal position then, and were totally wrong. God seems to have a sense of humour at least.
“You seemed very confident of the legal position then, and were totally wrong.”
You are not telling the whole truth. Yes, I adopted a certain legal position. I was very confident about what my position was. I was very confident that I could argue my case from that legal position of mine if I was allowed to. I was very confident that adopting the legal position I did, was the right thing for me to do. In that sense, I suppose I was very confident of my legal position. However, I knew how the litigation flowchart went, including the TWM decision box. It didn’t come as a surprise to me at all.
You know perfectly well that I did not predict that I would get JR permission or even an oral hearing. I have already told you that I was expecting the present TWM situation to arise, en route to the final destination, whatever that is. You are therefore not telling the whole truth, when you say I was “totally wrong”, about anything at all. The refusal of JR permission does not in any way prove me wrong about anything that I was ever very confident of, and that is a fact, and you know it.
To you, it has always been superfluous to engage with my claim as it is drafted, now no more than from the outset. Engaging with the content of my claim is something superfluous to anything you want to do. What you want to do is to is to write unfriendly comments, and I am beginning to find this tiresome.
My claim is very clearly worded. The coroner’s acknowledgement does not address my claim as it is worded. In neither her reasons for refusing me permission nor her reasons for finding my claim TWM, does Cockerill J address my claim as it is drafted either. You may consider it “superfluous” that the judiciary goes to the lengths it does to avoid the issues I raised being argued in open court. I don’t consider it to be superfluous, because my primary role in this matter has always been prophetic, speaking truth to power. I have put British justice on trial, and found it wanting. If you engage with the content of my claim, for the first time, and look at how it has been dealt with, you will see that for yourself. But you won’t. You’d have done that from the beginning, instead of trying to give the casual reader the impression, by goading and insulting me, that I didn’t know what I was talking about, or what I was doing, and was incapable of writing in my own English language, so that they didn’t bother to read my claim either.
You aren’t telling the whole truth. I have engaged with your claim as drafted. As did the coroner and Cockerill J. See my comment above:
“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.”
That is what your claim was, and that was what failed.
Why do you think I don’t fit the JR test for standing? I stumbled on the decision I challenged, when I wrote enquiring as to when the inquest would be, so that I could attend that inquest. Why isn’t that expressed intention of mine to benefit from the inquest, interest enough in the decision not to hold an inquest that I was challenging? Who else is the inquest for, except the member of the public who wants to attend it, or read about it in the paper, or the journalist who wants to write about it?
I don’t accept what else you say, about the “clear principle” in Ferreira, in Alfie’s different facts. However, I am not prepared to discuss that here with you at the moment. You can guess why not if you try. Think it through.
You might not like the principle in Ferreira, but there’s no scope for arguing that Alfie’s facts are different. Ferreira has been approved and applied in other cases, crucially including Alfie’s. It’s an incontrovertible fact that he wasn’t in state detention. How do you know God isn’t working through me, the courts and others to fill in the gaps in your legal education and point out where you’re wrong?
I have given you sufficient indication that I would “no comment” a riposte like that for you surely to realise that that is what I must do. Think about my earlier metaphor the younger billy-goat Gruff if you still cannot understand why I decline to argue this point with you here and now. Do not think (as another put it) that my silence “speaks volumes”. It is just silence. I have in the past pointed out differences in the facts in Alfie’s case at the moment of death, and those in Ferreira. You ought to have taken me up on that then.
I want to know for whose benefit Parliament decided that there must always be an inquest after a death in state detention, if not the ordinary member of the public with a “righteous curiosity” (as I pleaded it) as to what happened, lest the state was detaining people intending thus or otherwise to cause their deaths while in detention. In other words, why do you think that I lack standing to seek judicial review of a decision to deprive the likes of me of the opportunity to satisfy our righteous curiosities?
You lack standing because you’re a mere busybody. You have no right beyond any member of the public to bring your claim, however righteous and god-led it may be.
Even if you were right about Ferreira being distinguishable (which it is not), it ha already been applied by the Supreme Court in Alfie’s case, so you can’t now distinguish it.
The “mere busybody” plays a noble and vital role in the model of bourgeois liberal democracy, I learnt as a child. The busybody whom you denigrate as “mere”, is the paymaster of the free press that keeps the ruling class on its toes. He may become the revolutionary who chops off a monarch’s head in the next revolution, if marginalised. If mere busybodies did not buy their newspapers, the theory goes, the mighty barons of the equally noble and vital free press would go out of business, allowing the rich, the powerful and that wonderful abstraction “the state” to misbehave unnoticed. The free press is a toothless paper tiger, without the mere busybodies who buy it and read it.
For whose benefit, if not that of the mere busybody, was the provision enacted whereby there must always be an inquest, whenever a coroner has reason to suspect that a deceased died while in state detention? Without the mere busybody, open justice is pointless. It is inconceivable that Parliament would enact such a provision if it had your disdain of busybodies.
‘If it hadn’t been for a long line of earlier euthanasia judgments, starting more-or-less with Tony Bland and continuing up to and including Alfie’s hearings and now #NHSvY, and other judgments altering the balance of power in the family, especially between parents and the state’
Can you please explain why you’ve included Tony in this statement regarding family v state?
You’ve misunderstood what I meant, perhaps because I expressed myself clumsily. I don’t include Tony Bland’s case in the category of “other judgments altering the balance of power in the family”. I include him in “earlier euthanasia judgments”. If I’d written that clause as follows, it might have been clearer to you: “If it hadn’t been for a long line of (a) earlier euthanasia judgments, starting more-or-less with Tony Bland and continuing up to and including Alfie’s hearings and now #NHSvY, and (b) judgments that altered the balance of power in the family, especially between parents and the state …”
Alfie’s judgments were both (a) euthanasia judgments and (b) balance of power judgments, so it was on two long lines of judgments. Bland was only a euthanasia judgment, not a balance of power judgment, because Tony’s family were content for Tony to be deprived of food and water, which I assume is what caused his kidneys to fail fairly rapidly, when he was allowed to become dehydrated deliberately, with the intention thus to kill him off.
I disagree with the judgment on Bland for reasons unconnected with the present topic, except the common theme of euthanasia. I disagree because of the possibility of causing suffering to Tony by causing him to die of thirst. However, in those days we did not know that patients in “persistent vegetative states” (nowadays called prolonged disorders of consciousness) are sometimes awake, and therefore capable of experiencing pain, thinking, and communication with the right assistance, etc.
For more about the issues that weren’t raised in Bland, but ought nowadays to inform NICE best practice guidelines (but probably still don’t), I suggest a different post of mine:
Scott’s law: Talk to me, don’t just starve me to death!
If Tony Bland was still alive, I’d like to think his family and his doctors would nowadays ask his opinion about what they were planning to do to him, as they would have done in the case of Scott Routley if they’d planned to harm him. Rather than going to court about it their euthanasia plans, that is. But as far as I know, there is still no legal duty to try to communicate via brain data with locked-in patients like Tony and Scott. I think there ought to be. Hence the Scott’s law post (q.v.).
Thank you again for taking the interest you have.
Perhaps you should take your time in replying to people to prevent misunderstandings then instead of laying blame at people for not understanding you and casting aspersions of superior intelligence? The implication in your words of “I wrote this, but let me dumb it down for you because you didn’t understand me”
Are you medically qualified to make all these statements regarding PVS John? let me make this clear so you don’t misunderstand, a braver more caring and compassionate family you couldn’t wish to meet than the Blands. Obviously you know them well to make a statement such as ‘they’re “content” with their beloved child/family member dying?’. I’ll ensure they see your comment.
‘Prolonged disorders of consciousness’ covers a range of brain injury disorders, including MCS and VS. I assume you’ve cared for patients with these health problems and are fully versed in their medical care? Regarding your claim of communicating via brain data, do you have peer review papers from a reputable high impact journal regarding its success rate ?
Poor little Alfie Evans had an incurable neurological disorder. He was not euthanised. You lost your case for the right reasons stated by other posters.
I accepted the blame for your misunderstanding and tried to restate what I’d admitted having expressed badly with greater clarity. I don’t know what else you’d have liked me to do, which would have satisfied you.
I make the statements I did in the posting to which I directed you, I am qualified to make those statements. They aren’t medical statements. Did you read the article? If you want to comment on that, why not comment there?
It is not to blame Tony’s parents, to say that they were content for Tony’s life to be ended. Wikipedia puts it this way, “the hospital, with the support of his parents, applied for a court order allowing him to ‘die with dignity’ “. “Content” doesn’t mean joyful. Why you wish to upset them, I do not know.
Little Alfie Evans had an incurable neurological disorder, as far as we know, yes. He was thought likely to die soon whatever was done or not done for him.
There was nothing else the court could have done, when asked to rule on what course of action was in Alfie’s best interests, than to compare every poosible fatal scenario with every other, and to declare which scenario for the ending of Alfie’s death was the one that was kindest to Alfie. So far so good?
The technical term for making that sort of decision and process – to choose the best death for somebody and then to order and to ensure that what one has decided is what actually happens, is “euthanasia”. So, literally speaking, Alfie was euthanased, by the British state. There is no argument about that.
I wasn’t arguing that Alfie shouldn’t have been euthanased. There was nothing else the court could have done, once it has assumed the duty to rule as to what was in Alfie’s best interests.
I believe that because Alfie was euthanased by the state, there ought to have been an inquest. I believe that there ought always to be an inquest when the state euthanases a citizen, even if the euthanasia is because state concludes that it has no other choices, as in Alfie’s case.
Not medical:
‘Tony’s family were content for Tony to be deprived of food and water, which I assume is what caused his kidneys to fail fairly rapidly, when he was allowed to become dehydrated deliberately, with the intention thus to kill him off.’
So two issues here, obviously you have a qualification in renal medicine to say this. Any medical qualification you can provide will do to say such things. You saying “I’m qualified” really isn’t going to cut it here.
Secondly “The intention thus to kill him off” You really do not have any understanding of end stage care and the compassion required John, which is quite startling in its lack of empathy and research.
Have I read the article? You mean your rambling blog post that links to a “newspaper” article about a tragic singular case. This is not a high impact or even a low impact journal with peer reviewed articles. Can you provide any of them to prove this “brain data” or if the reaseach has been repeated? Research must have repeatability for it to be taken seriously John, I’m assuming as with your legal and medical qualifiactions you also are aware of this? And for the record I’m happy to post here.
You’re actually quoting Wikipedia. No academic (medical/legal etc) would quote Wikipedia. It certainly reveals something else about you that you do this.
Content does not mean joyful, the Oxford English Dictionary states it means “in a state of peaceful happiness” which let me tell you, his parents were certainly not. Your usage of “content” was sly and franky a nasty dig because you disagreed with them. I’ll leave upsetting people you don’t know to you, you seem to have a “penchant” for that. I’ll simply let them know your crass little comment so they can make an informed choice about you. So far so good?
Alfie was not euthanised, nor was he murdered (a nice insinuation you made on twitter that you swiflty backtracked from), he was sadly always going to die despite medicine keeping his body going for as long as it did.
Your latest comment post is a nightmare to try to reply to. It is (as you put it, about one of my main posts) “rambling”, though not as bad as my post that you described thus. Thanks for your comment, all the same. I’ll try to cover everything in this reply.
If you are sceptical of any of the following facts, which are all in the public domain, please say which.
1. Dehydration is a known cause of kidney failure.
2. Tony Bland died of kidney failure.
3. Tony was deliberately dehydrated, with the intention of shortening his life.
4. Tony’s death occurred soon after he was dehydrated.
5. There was a court order permitting or mandating the dehydration that either killed Tony by causing his fatal kidney failure (as I’d said I had assumed), or would have killed him (thus or otherwise) before long, if only a coincidental kidney failure entirely unconnected with the dehydration hadn’t intervened by killing Tony first.
6. Tony’s parents did not oppose the hospital’s application, they were resigned (“content”) for the court to grant the application.
If we agree that those are the facts, then what is it we disagree about, concerning Tony Bland? Is there anything in dispute between us? No? Good.
The nits you are picking are in facts 5 and 6.
I scanned the two possibilities, (a) that Tony died of kidney failure because (let’s face it) kidneys are prone to fail when they are dehydrated; (b) that Tony died of a kidney failure that just happened coincidentally before his deliberate dehydration (which hadn’t caused his kidney failure at all) had had a chance to take its intended toll. I didn’t think I need to be a nephrologist to “assume” (a) over (b). It’s not like I’m trying to set up quack renal clinic using bogus qualifications. If I do need to be a doctor to make that trivial assumption, then I take it back.
If you dislike the word “content”, to describe the acquiescence of Tony’s parents in the hospital’s acquisition of the lethal court order, then I am content to use a different word, which indicates that they were merely “OK” with going along with the hospital’s “terminal” care plan for their son. (I almost said, without thinking how you might pounce, that they were “happy” to go with the plan! Good job I stopped myself in time.)
Alfie really was euthanased, as I have already explained. You can deny it until you are blue in the face if you want.
I have never insinuated that Alfie was murdered. What I said was that Alder Hey Hospital had the motive to murder Alfie. That is undeniably true.
I have no criticism of Tony Bland’s parents. In their position, I might very well have made the same decision as them. If you are determined to invite them into the discussion, then please at least tell them that, in your briefing to them.
It’s not clear to me which citing of Wikipedia of mine it is that you are complaining about.
Finally, of the following paragraph of yours,
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Have I read the article? You mean your rambling blog post that links to a “newspaper” article about a tragic singular case. This is not a high impact or even a low impact journal with peer reviewed articles. Can you provide any of them to prove this “brain data” or if the reaseach [sic] has been repeated? Research must have repeatability for it to be taken seriously John, I’m assuming as with your legal and medical qualifiactions [sic] you also are aware of this? And for the record I’m happy to post here.
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It is fair comment to describe as “rambling”, my blog post,
Scott’s law: Talk to me, don’t just starve me to death!
It’s like that because I was trying to kill multiple birds with one stone, bridging between one single-issue community and another. There’s something in it for more than one tribe that follows me, if you like to put it that way. But, rambling or not, it’s sound.
There actually are scholarly papers in peer-reviewed journals, or otherwise respectable, behind my claims. If you seriously want to discuss thought inference from brain data with me, then please prove your seriousness in this intention, by discussing it with me on the “Scott’s law” comments section, not this one.
Thanks again for giving me something to reply to.
Excellent post Grace.
Thanks Alistair 🙂 and not sure what your site is playing at John, but I do not appreciate getting a warning saying it carries a virus risk to my PC, which is new from last evening. I will not be replying again until you resolve this issue and I was loathe to reply now, risking my PC.
I don’t host the site myself. It’s bog-standard WordPress blog, hosted by WordPress. If this blog can infect your PC, then any WordPress blog can. Take no notice.
I am still trying to get through to Symantec, about a misclassification of this blog until a few days ago as “Adult/Pornography”, which blocked it to Sky users and anybody else’s users relying on Symantec for its blacklisting.
During the Cheadle byelection, I had three different websites that were identical to one another, a ploy I adopted to stay up even under cyber-attack. A journalist phoned me, and she tried all three of them one after another. They were on different servers in different cities too. All of them blocked at the same time.
I was handing out hundred of leaflets advertising slavery.org.uk at the Labour Party Conference in 2004. That day, the reads fell to zero, according to the statistics page, instead of the steady trickle of 200 reads a day.
The Russians aren’t the only ones who conduct cyber attacks.
Who is telling you this story about viruses? If it’s Symantec again (which also trades as Norton), I’ll see them in court an’ all.
Facebook and You Tube are notorious too, for miscategorising user accounts and suspending them, when the content is politically dissident. The only thing Orwell got badly wrong was the year.
“Mere busybody” is the legal test for standing, and it comes from statute. The fact that you don’t know that explains some of your confusion over whether you have a claim. Parliament didn’t decide that an inquiry was necessary in Alfie’s circumstances. Only you think that. Lawyers and judges disagree with you.
Could you please point me to the statute to which you are referring, the one that uses the term “mere busybody”?
Try this thought experiment.
Suppose, for the sake of argument, a different coroner decided not to hold an inquest (for example, on the basis that Ferreira taught that nobody could be in detention whilst in a hospital). The deceased is a convicted prisoner serving his custodial sentence in Ford Open Prison. He died in hospital whilst having cosmetic surgery as an out-patient, intending to be back in time for curfew. The cause of death is rumoured to be that illegal drugs consumed the night before in prison had interacted with the anaesthetic lethally.
Would a reporter who had written often about the evils of cosmetic surgery, or critically of the toleration of drug-taking in prisons, predicting a tragic death one day if this toleration continued, be a “mere busybody”? Would the family of other prisoners at the same prison be “mere busybodies”, or his roommate in prison? You see, I think who is a “mere busybody” is fact-sensitive. When it is claimed that a provision for the benefit of the entire general public is what has been breached, how can any busybody be “mere”?
When I was with what used to be called The National Council For Civil Liberties, our entire group were considered to be busybodies.
No, the reporter would be doing her job and performing a public service. It wouldn’t give her standing to bring a JR, however,
And s31(3) of the Senior Courts Act 1981 requires a JR claimant to have a “sufficient interest” in the decision, interpreted in IRC v National Federation of Self Employed and Small Businesses [1982] AC 617 by the House of Lords as requiring the court to refuse locus standi to anyone who appears to be a mere busybody or mischief maker (per Lord Scarman). In other words, you.
There really is no reason to slip in an insult every now and then. I don’t insult you.
Scarman’s dictum is rather circular. Or rather, it paraphrases insultingly the alternative to someone with “sufficient interest”, without getting us any closer to knowing what quality makes a sufficient interest sufficient.
I have brought one JR against a coroner before and was on that occasion found to have sufficient interest to bring it. Why isn’t wanting to know what happened on its own sufficient interest to JR a wrong decision not to hold an inquest? What reason is there for holding an inquest at all, except to find out what happened, whereby the deceased wound up dead? We have coroners in order to further the interests of busybodies.
The poem of John Donne, “For Whom the Bell Tolls” is a hymn of praise to the noble busybody. Do you know it?
Saying I didn’t have sufficient interest because the coroner’s decision wasn’t wrong begs the question.
Saying I didn’t have sufficient interest because I merely wanted to find out what happened, and was therefore a mere busybody, prompts the question, what other possible reason would anybody have for JRing a decision not to hold an inquest, other than the frustration of his desire to find out what happened? Anybody who JRs a decision not to hold an inquest, does so because he is a busybody. He might not be a “mere” busybody, if he has the X-factor I’m missing. But what is that X-factor? It cannot be PIP status, because there is no inquest yet in which to be a PIP. It is at most prospective PIP status.
So, who would have standing, if anybody, to JR a wrong decision of a coroner not to hold an inquest?
The prisoner’s family, for one.
Why? What is different between the curiosity of the prisoner’s family as to what happened, and anybody else’s?
If the statutory criteria for an inquest are met, Parliament’s enacted will is that even potential non-PIPs (in any inquest) should be allowed to find out what happened, via an inquest. When considering my standing, how, without for the time being considering the merits of my grounds, on what basis can my curiosity be found not to be sufficient interest for me to challenge a decision I say is unlawful not to hold an inquest, whereas a PIP’s equal curiosity (say) is sufficient interest?
I am trying to discover the rational basis for one person’s wish to know what happened to be found to be a sufficient interest, but not another’s, if the facts are such that (according to Parliament) the entire public has a right to find out what happened, via an inquest.
Nobody has PIP status until an inquest is called, because PIP status is proper interest in an inquest. The status I need is sufficient interest in there being an interest in the first place, so that I can challenge a decision not to hold an inquest when that is plainly wrong. (I.e. in a hypothetical case when that is plainly wrong.) As I pleaded, the foregone conclusion that I would not be a PIP if there was an inquest gives me a greater interest in there being an inquest in the first place, than somebody has who would become a PIP if there was an interest. A potential PIP can find out what happened to some extent, even when there is no inquest. Nobody else can.
I didn’t say it was rational. I said it was an effect of the Senior Courts Act. There are numerous other statutes that limit entitlement to JR to certain groups, or even exclude it altogether. Parliament (more accurately the government) has consistently sought to restrict JR as much as it could since the 1980s, for reasons that should be obvious. If you think parliament is your friend and intended your curiosity to be assuaged in any circumstances, you’re hopelessly naive.
So what is the X factor? Who is able to challenge a coroner’s decision not to hold an inquest? What is the dividing line?
We know that being accepted as a potential PIP or an actual PIP, is not necessary in order to challenge a coroner’s decision because my West Sussex claim didn’t fail for want of standing to bring it. It was not found to be TWM. I was found to have the standing I needed to bring that JR claim. (Cockerill J was wrong about that.)
So, what is the test that Cockerill J applied? What is the X factor?
What do you think would have happened, if my application had been granted to stay before permission consideration, to allow Alfie’s parents to come on board, which was my frustrated intention? And if my pleadings had been amended professionally?
“The first stage test, which is applied upon the application for leave, will lead to a refusal if the applicant has no interest whatsoever and is, in truth, no more than a meddlesome busybody. If, however, the application appears to be otherwise arguable and there is no other discretionary bar, such as dilatoriness on the part of the applicant, the applicant may expect to get leave to apply, leaving the test of interest or standing to be re-applied as a matter of discretion on the hearing of the substantive application. At this second stage, the strength of the applicant’s interest is one of the factors to be weighed in the balance.”
There’s the test. They apply a merits assessment to standing, something on which you fall catastrophically short. But it’s obvious you have no interest. Did you know Alfie? No. Did you know any of the family? No. Are you part of a pressure group whose mission it is to seek inquests and ensure coroners make the right calls? No. Is your case arguable such that you could be said to have a general interest in upholding public law. No and no.
Thank you. What is the source of that quotation, please?
Has this run out of steam now, then? We’re not seeing any sign of any other billy goats gruff, and it’s way out of time for a challenge now.
That’s a very good question. The way you ask it indicates that you don’t need me to explain why I cannot wisely answer the question. From the fact that I cannot wisely answer the question, you might be able to work out what the answer would be if I could. I wish I was well-advised to say more, but I’m not and that’s that.
It’s a lost cause now, isn’t it?
Wait and see.
Anyone would be way out of time to appeal now though, no?
Please be patient.
Almost 2 months have gone by, without an update. Has the case has been thrown out, and have you have been ordered to pay the costs, or shall I make a Freedom of Information Act request to the Coroner and find out, and then share the results?
No news to report yet. The state of play is exactly as it was after the first permission decision, last year. The case has been “thrown out”, as you put it. Whether it remains “out” remains to be seen. I have sent the relevant barrister an email today chasing this up, in part prompted by your reminder. Personally, I am planning to do doing nothing further on this matter before I hear back from him or her.
No, I haven’t been ordered to pay costs. The most recent order is already in the public domain, put there by the courts service. It doesn’t mention costs.
Chasing what up? There are no legal options left to you. You’ve failed in your ghoulish egotistical quest, just as everyone said you would.
I have chased up whether I’ve indeed failed in my “ghoulish egotistical quest”, just as many said I would, but not the barrister who is on the case, whom I’ve emailed.
If you are so sure that there are no legal options left to me (even though I am advised otherwise), why are you bothering to ask what you think you already know?
You’re advised otherwise? Then why aren’t you pursuing them?
What makes you suppose I’m not pursuing options?
You’d say if you were. And there are no legal options available.
I am pursuing other legal options. There. I’ve said it. Are you happy now?
But what other legal options do you have? The case has been thrown out, you have not appealed that decision it seems, and you are now out of time for appealing, not that any appeal is likely to be successful, so there are no options. It is simply yet another case that you should not have been involved in and that you have lost isn’t it?
1) What other legal options I have been advised that I might still have is not information that I am advised to publish.
2) I don’t share your belief that whenever a court case does not go the way one of the parties would have preferred – the party “lost” the case if you want to put it that way – this goes to show that that party “should not have been involved” in the case in the first place.
3) What other court cases do you have in mind, in which (you conclude, “simply”) I “should not have been involved”, because (you say) I also “lost” those cases?
You are just pretending. You know that there are no other legal options.
How can you say that you have not lost, if your claim was not successful? The opposite of success is failure. Your claim failed. You lost.
It would be a much shorter list if you told me which cases you won. Have you ever brought a case and been successful, because the only cases that I have heard about, whether concerning your own child, or cases brought on behalf of others, or about matters in which you had no direct interest, have all failed.
I have not said that I “have not lost”. The present state of play is in the public domain. You know what it is. You could post a comment linking to the decision, instead of hectoring me about how one should express what the decision means, and whether it is final or not. I am advised that there are other legal options, but also advised not to discuss those publicly. I am following my barrister’s advice and awaiting his next move. I have already told you all this.
I have never brought a claim on behalf of another individual. I cannot do that. I am not a solicitor. However, I have twice brought claims or appeared in court proceedings successfully on behalf of limited companies of which I have been a director, Adept Computing Ltd v Datasolve Ltd and a matter concerning OPOB News Ltd. In the first case, Blackthorn’s and I reached a settlement out of court. In the second case, I succeeded in getting permission for the company to challenge the order.
If I have ever brought a claim in the family court about a child, which I rightly neither confirm nor deny, you are not supposed to know anything about that sensitive matter. It would be quite wrong for you to write belligerently about that, if somehow you have unauthroised access to information that you ought not to have access. I can confirm that I have never “lost” such a family court claim.
I have never brought any claim except this one (re Alfie’s non-existent coroner’s inquest) in which I was ever held not to have an interest to bring the claim at the time I brought the claim. I brought one claim for an injunction from which I’d have benefited at the time. That claim was never heard, because the circumstances changed, meaning that the injunction would no longer have been of any benefit to me. I intend to publish the judgment for the case management decision made when I get it. The court was critical of my defendant.
I have settled two libel actions before trial. The first was reported in the press. The second I blogged about myself, linking to the final order settling the claim.
What are the “cases” you have “heard about”. Apart from my JR application re the late Darrim Daoud, mentioned in the oldest post on this blog? If you had been in my shoes, in those circumstances, what would you have done? I did what the deceased had persuaded me to promise to do, to the best of my ability. Would you have broken your promise to a dead man, in my circumstances?