Thread by @tribunaltweets

Good afternoon; this is part 2 of the afternoon session in the application for Judicial Review by TransActual & YY against the Secretary of State for Health, in relation to Orders laid restricting the prescribing of 'puberty blocker' drugs.

Part 1 of the afternoon session is here

https://x.com/tribunaltweets/status/1811740203763028181

And our Substack page for the case is at tribunaltweets.substack.com/p/group-seeks-…

The court is taking a short break, after which submissions for the Secretary of State will continue.

[COURT RESUMES]

JM: Re ground 3.
JM: The claimants cannot cite any case where a state has breached access to any medications as a matter of general healthcare. The general position is summarised [ref] tab 21.

JM: Dealt with WW earlier - was an individual case not a generalised one.

J: Re Art8 I was shown these points?
JM: Am not arguing that Art8 is entirely inapplicable.
J: Engaged?
JM: Yes

JM: Engaged on both sides - the state has no Art8 rights, but has duty to protect health which involves Art8.

JM: No case is cited, none within Strasbourgh jurisdiction, so we say this would be a significant extension.

JM: 3rd point - hard to see why medical treatment would be any kind of special case under Art8, beyond any other where someone's autonomy is engaged.

JM: If it did, there would be huge implications for any legislative process. [Case ref]
J: Am familiar

JM: 4th - learned friend relies on two cases, one is Stafford, we say that's a completely different case - about medical records.

JM: Other is [missed name] - but there it's environmental law, which has specific legislation requirements. Point there is, there was requirement to make procedures available to have consultation and involvement - but it's clear that is specific to climate change issues.

JM : Final point is, and my lady's question has shown this, there is no clear requirement for consultations at all [I think this is what he said - was very fast]

[Response from claimant barrister]
JC: Re ground 1 - remind that SoS told greater risk to health for those told to stop treatment than if they continued. SoS case is that was fully aware of everything she needed.

JC: But we say SoS did *not* know difficulties people would face getting ongoing care, not least because her officials didn't even know that.

JC: You were given a reference to [] but that was about people coming off PBs, not about repeat prescriptions. You were given [] which recommends allowing UK private prescribers to continue existing ones

JC: No dispute from MLF that this is wrong because there *are* no private prescribers.
JM: There are private GPs
JC: No evidence of that - of private GPs willing to act.

JC: So the proposed solution is no solution at all.
JC: You were also given the advice of 28/5 - Ms Sachs advises SoS that those using EEA prescribers may struggle to find UK prescribers and some may not want to do so.

JC: That's an understatement - 99% will not want to do so. No attempt to revise previous incorrect advice that private prescribers can be found. Says they will ensure continuing care but this is wrong -

JC: There *was* no continuing care.
J: And CAMHS?
JC: Indeed - told to go to CAMHS, and just hope they can see you within the 3 months

JC: And, it's even worse re the other party, the SoS for Northern Ireland. We have invitation to SoS-NI to adopt the order [ref] talks of avoiding detrimental impact on existing users. Says will ban for new patients only.

JC: No indication to SoS-NI, joint decision maker, that there is any problem at all obtaining repeat prescriptions.

JC: SoS-NI knew nothing at all about this very serious issue with the legislation.

JC: My lady asked JM wasn't there something in between complete ban on EEA prescribers and letting them just carry on, he said not sure what that would be. But, plenty of options.

JC: For example allowing EEA prescribers for a certain amount of time. And these are exactly the options that would have been considered by proper consultation, proper scrutiny by a committee.

JC: Also on ground 1. MLF addressed my sub that there is no evidence re risks to health which SoS claimed CR established. MLF says, not a reason to challenge. Claims multiple meetings and submissions re exactly that & carefully considered.

JS: But he took you to no evidence at all about them, because, SoS had made her mind up in advance about what the outcome would be.

JC: This is about whether SoS opinion that the legal test was met was rational, and the thing is we just don't know. We can't say Oh she was just going by CR because she went beyond Cass.

JC: Going back to CR itself. MLF took you to passages on potential risks, and interpolated, among hypotheses by Cass, and concluded serious risks from it, says it's obvious.

JC: Won't ask court to conclude the risks are minor, but point out CR does not say anything about the *seriousness* of risks. Manifestly room for debate eg about bone density.

JC: Who knows whether a small drop in Z reading is serious risk. I don't know, MLF doesn't know. SoS couldn't have known either.

JC: Looking at the cases cited - these are not ones where parliament has set a high threshold, it's not a blank canvas. [Picks a case]

JC: para 156 says a preventative measure cannot be made based on a purely hypothetical conjectured risk that's not scientifically verified. Can't pluck out of the air - you need some scientific basis. If we look at CR - it's clear there *is* no such evidence.

JC: That's why CR recommends research. Because there *is* no good scientific evidence.

JC: Going to [different case] - this is an entirely different case, precautionary principle invoked but it's not a medical context. It's of no assistance at all.

JC: It's about bans on ivory trading, it's not about hypothetical unverified risks.

JC: MLF dismissed my discussion of "serious" in the legislation, said SoS was taking a forward-looking view. We say that's no answer. Because whether PBs had proved dangerous in the past is essential to Q of whether would be in future. CR is *all about* the past of PBs.

JC: And on Human Rights case law. MLF conceded re ground 3 that Art8 engaged. We say, engaged and interfered with - not sure if MLF was making the distinction.

J: What do you understand his position to be?
JC: [not catching this] [discussion of common vs public vs Strasbourg law I think]

JC: Re ground 2. MLF scarcely acknowledged that the consultation was 2 stages, early May and then end of May. He can't say re early May that decision had been taken, and he can't say that in late May they couldn't consult bcs people might try to evade the ban.

JC: We say, distinction from [cites case] which was where 1 interest group given preferential treatment over other stakeholders. Here it's that a large number of stakeholders left out.

JC: Further distinction is, what did SoS officials *think* they were doing at the time, which was consultation. So that SoS gaps of knowledge could be filled by consultation, Which should have included first claimant.

JC: Clear from Ms Sachs that the meetings in May were about framing the legislation, any exceptions, normally the things that would be considered via a consultation in the ordinary way.

JC: MLF says finally, no time available. But that's because SoS had set timetable, for reasons the defendant has struggled to explain. Totally self-imposed timetable. SoS can't now say "Oh we just had no time".

JC: Reason why first claimant not consulted wasn't re time, it was that SoS decided they should not be.

JC: In my submission it's impossible for SoS to argue that, because evidence from officials that they didn't have enough information, had not been enough time, possible unintended consequences.

JC: Finally on ground 3, couple of points. Breach of Art8 rights - there are cases, eg WW v Poland, which *does* recognised medical re Art8. MLF may be right that no Strasbourg cases re more general legislation. But that's not our argument -

JC: We are challenging the process, and Art8 is clear on what that should be. [Case] is no help -

J: Does your skeleton cover this? "Well established procedural right"?

JC: We have it in para 51 of skeleton.
[J reads]
JC: And it's para 23 of Stafford case.
J: Is it the final sentence of your 51 you mean?
JC: Yes. Well established principle.

JC: MLF objection that this can only apply to an individual decision, we say that's not logical, there can't be a difference between 1 patient being denied treatment by 1 doctor and denied at national level - it's the being denied at all.

JC: Note that second claimant is happy to have interests represented by first claimant.

J: I think S62 expressly refers to organisation?
JC: Yes

JC: Am grateful for additional time today. Am finished unless you have questions.

J: No Qs. Am not going to give judgment now, but as soon as I can. Thank you to everyone taking part.

[END OF HEARING]

@threadreaderapp please unroll