BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | ||
England and Wales Court of Appeal (Civil Division) Decisions |
||
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Assisted Reproduction and Gynaecology Centre, R (on the application of) v The Human Fertilisation and Embryology Authority [2002] EWCA Civ 20 (31st January, 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/20.html Cite as: [2003] 1 FCR 266, [2002] EWCA Civ 20 |
[New search] [Printable RTF version] [Help]
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
Mr Justice Ouseley
Royal Courts of Justice Strand, London, WC2A 2LL | ||
B e f o r e :
and
MR JUSTICE WALL
____________________
THE QUEEN ON THE APPLICATION OF (1) ASSISTED REPRODUCTION AND GYNAECOLOGY CENTRE First Appellant/
Claimant (2) “H” Second Appellant/
Claimant and THE HUMAN FERTILISATION AND EMBRYOLOGY AUTHORITY Respondent/
Defendant
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Ms B Schwehr (Solicitor Advocate, of Rowe & Maw) for the Second Appellant
Miss D Rose (instructed by Morgan Cole) for the Respondent
Hearing date: 7 December 2001
____________________
AS APPROVED BY THE COURT
Crown Copyright ©
Mr Justice Wall:
This is the judgment of the court.
Introduction
The Nature of the Issue
The Statutory Provisions
“The Authority’s principal task is to regulate, by means of a licensing system, any research or treatment which involves the creation, keeping and use of human embryos outside the body, or the storage or donation of human eggs and sperm. It must also maintain a Code of Practice giving guidance about the proper conduct of the licensed activities. The Act also allows the Authority to give guidance on any procedure involving the placing of eggs and sperm in a woman.”
“Prohibitions in connection with embryos
(1) No person shall
(a) bring about the creation of an embryo, or
(b) keep or use an embryo
except in pursuance of a licence ………”
“Licences for treatment
(1) A licence under this paragraph may authorise any of the following in the course of providing treatment services—
(a) bringing about the creation of embryos in vitro,
(b) keeping embryos,
(c) using gametes,
(d) practices designed to secure that embryos are in a suitable condition to be placed in a woman or to determine whether embryos are suitable for that purpose,
(e) placing any embryo in a woman,
(f) ….
(g) such other practices as may be specified in, or determined in accordance with, regulations.
(2) Subject to the provisions of this Act, a licence under this paragraph may be granted subject to such conditions as may be specified in the licence and may authorise the performance of any of the activities referred to in sub-paragraph (1) above in such manner as may be so specified.
(3) A licence under this paragraph cannot authorise any activity unless it appears to the Authority to be necessary or desirable for the purpose of providing treatment services.
(4) A licence under this paragraph cannot authorise altering the genetic structure of any cell while it forms part of an embryo.
(5) A licence under this paragraph shall be granted for such period not exceeding five years as may be specified in the licence.”
(a) the persons for whom services are provided in pursuance of the licence,
(b) the services provided for them.
“The Authority shall:
(a) keep under review information about embryos and any subsequent development of embryos and about the provision of treatment services and activities governed by this Act, and advise the Secretary of State, if he asks it to do so, about those matters,
(b) publicise the services provided to the public by the Authority or provided in pursuance of licences,
(c) provide, to such extent as it considers appropriate, advice and information for persons to whom licences apply or who are receiving treatment services or providing gametes or embryos for use for the purposes of activities governed by this Act, or may wish to do so, and
(d) perform such other functions as may be specified in regulations.”
(a) a licence committee shall, in considering whether there has been any failure to comply with any conditions of a licence and, in particular, conditions requiring anything to be “proper” or “suitable”, take account of any relevant provision of the code, and
(b) a licence committee may, in considering, where it has power to do so, whether or not to vary or revoke a licence, take into account any observance of or failure to observe the provisions of the code.
The view we have formed
The Facts
“My client takes the view, as a medical professional, and as an expert in the field, with the statistics to prove his expertise, that the risk of any of these women having a multiple birth is non-existent, given the previous history. He wants to transfer more than 3 embryos to each of these patients simply in order to give them a reasonable chance of conceiving or carrying a foetus beyond the first three months at all. He takes the view that to do so is the minimum required by way of suitable fertility practice for these individuals, and is prepared to act on his professional judgment.
We are aware of the spirit of collaboration and co-operation now existing between the HFEA and my client’s Centre. Would the HFEA be willing to acknowledge that transfer of more than 3 embryos in an individual case would be considered appropriate if it were credibly asserted that there was evidence which would convince a responsible body of fertility specialist opinion that such transfer was medically essential.”
“DOB: 17/6/1954 ....
Para 0+1, 1st trimester miscarriage in 1984.
History of bilateral tubal block and unsuccessful tubal surgery in 1995.
Hysteroscopy in 1998 revealed an initially normal uterine cavity.
Starting in 1996, she has had seven unsuccessful IVF/ICSI treatments (of which three were unsuccessful frozen embryos replacement cycles) coupled with AH and prolonged embryo culture. Her last frozen embryo replacement cycle was in January 2000.
She has always responded adequately to ovarian stimulation in the past and produced good quality embryos; hence the frozen embryos replacement cycles.
Her gonadotrophic assessment in the early follicular phase has always been in the normal range including the last assessment in June 2000.
She is currently undergoing controlled ovarian hyper-stimulation with 300 iu of HMG (to which she has responded adequately) and is scheduled for embryo transfer on Thursday/Friday 13/14 July 2000
Taking into account the above history the chance of a high order multiple pregnancy in this particular case is negligible. (After all this patient has had a total of 21 embryos replaced during the course of her previous treatments without even getting pregnant once!). It is also ironic that should her tubes been patent, GIFT procedure with the replacement of an unlimited number of eggs would have been an accepted medical practice in her case
It is my strong belief that the replacement of more than three embryos in this particular case is not just medically essential and professionally sound, but is the minimum required in the discharge of my professional responsibility towards this patient.”
“4. The Licence Committee has noted the guidelines issued by ASRM as well as guidelines issued by other countries. The Committee has taken particular note of the recommendations on good practice of BFS (the British Fertility Society) and RCOG (the Royal College of Gynaecologists), recognising that these have specific relevance to practice in the UK. (These guidelines have already been mentioned in correspondence). The Licence Committee draws your client’s attention to the concerns expressed in both the BFS and RCOG guidelines about the consequences of multiple pregnancies following embryo transfer.
5. The Committee has considered the summary of the specific characteristics and history of one of the patients mentioned in your correspondence. The Committee has also considered data held by the Authority in relation to cycles between 1.8.91 and 31.3.98 involving fresh embryo transfers created from patient’s own eggs. The data indicate that the multiple birth rate for women aged 40 and above is 11.7%. Whilst numbers achieving pregnancy at age 46 and above are very small, the multiple birth rate was actually 60% (3/5). The Licence Committee’s view is that this could not be considered negligible.
6. The Committee has also considered statistics published by the US Department of Health entitled “1997 Assisted Reproductive Technology Success Rates: National Summary and Fertility Clinic Reports” published in December 1999, recognising that those statistics relate to a country where there are no restrictions on the number of embryos that can be transferred. These data indicate that, for a woman aged 46, the live birth rate is approximately 2%. This compares with a live birth rate in the UK where no more than 3 embryos can be implanted in any one cycle of 1.2%. The Licence Committee’s advice is that this data does not support the view that the replacement of more than 3 embryos leads to any significant increase in the likelihood of a live birth or that this could be said to be medically essential.
In conclusion the Licence Committee’s advice is that your client should not proceed with the transfer of more than 3 embryos. If he should do so, then he takes a risk that he will be found, by a Licence Committee, to have failed to follow a suitable practice for the reasons stated.”
“We confirm that the live birth rate of 1.2% (referred to in paragraph 6 of our letter) relates to cycles between 1 8.91 and 31.3.98 involving transfer of fresh embryos create from patients’ own eggs. As our letter confirms, the multiple birth rate (referred to in paragraph 5) is based on the same data. Whilst numbers achieving pregnancy at age 46 and above are very small, this was the largest data set available. Of the numbers achieving pregnancy at age 46 and above, the triplet birth rate was 20% (1/5). The Licence Committee did not consider the risk of multiple pregnancy (including the risk of higher order multiple pregnancy) to be negligible.”
“We refer to our letters of 28 July and 7 August.
In those letters we mentioned certain UK data relating to cycles between 1.8.91 and 31.3.98. The Licence Committee has reconsidered the questions raised by you in correspondence without reference to that data.
The Licence Committee considered other available evidence, including that derived from the four publications referred to in the attached annex and in addition to the guidelines of the RCOG and BFS.
The Licence Committee acknowledges that the numbers of cases are limited but what published evidence there is indicates there is still a risk of multiple pregnancy (including higher order births). It would, therefore, be prudent, given the case that you have described, not to replace more than three embryos in any one treatment cycle.
On the evidence available, the Licence Committee remains of the view that it would be an unsuitable practice to transfer more than three embryos.”
(1) In relation to the treatment history of the particular patient please provide a chronology of treatment and indicate, in respect of each date of treatment:
(i) whether the cycle was stimulated;
(ii) the number of embryos used;
(iii) whether those used were fresh or frozen.
(2) In relation to the proposal that the patient should undergo further treatment using 5 embryos, please confirm:
(i) whether it is proposed to transfer fresh or frozen embryos;
(ii) whether it is proposed that the replacement of 5 embryos be limited to one cycle or whether further cycles are envisaged;
(iii) why it is considered to be medically essential to transfer 5 as distinct from 3 embryos in this patients case;
(iv) what information has been given to the patient about
- the limitations and possible outcomes of the treatment proposed in her case including the prospects of a live birth;
- the possible side effects and risks of the treatment to her and any resulting child including the risks associated with multiple pregnancy.”
The letter concluded with the information that the Authority would give further consideration to the matter at its meeting on 23 November 2000.
“The information states clearly that frozen embryos were used on three occasions and our client has confirmed that fresh embryos were used for the eighth treatment. Consequently it is implicit that the cycles for the treatment during which fresh embryos were used were in fact stimulated, and this is further indicated by the statement that the patient “has always responded adequately to ovarian stimulation in the past and produced good quality embryos”.
The summary also explains why the transfer of more than 3 embryos is considered to be medically essential. As we have explained previously, it remains our clients professional and medical view that the transfer of more than 3 embryos is essential simply in order to give the patient a reasonable chance of conceiving or carrying a foetus beyond the first few months at all and he regards this as the minimum required by way of suitable fertility practice at this stage. Such practice would be in line with the current guidelines produced by the American Society for Reproductive Medicine (November 1999). The Authority’s own statistics, supplied to us under cover of a letter dated 13 October, show that the chances of a patient at this stage becoming pregnant are negligible, to say the least.
4. At the meeting on 23 November, the Authority considered very carefully the information contained in your letter dated 16 November 2000. The Members noted the history of treatment provided to the particular patient and the reasons for opinion that the transfer of five embryos in one treatment cycle is medically necessary in this case.
5. The members noted that the patient concerned has always responded adequately to ovarian stimulation and produced good quality embryos. This has enabled fresh embryos to be transferred and spare embryos to be cryopreserved for subsequent transfer. The members considered that it was unusual for a 46 year old patient to be producing a large number of good quality embryos following relatively low doses of stimulatory drugs. The members considered that the availability of good quality embryos for transfer meant that this particular patient would be at a higher risk of having a multiple birth than a 46 year old patient with poor quality embryos. The Authority was also concerned that the possible complications arising from a multiple pregnancy were more severe than in the case of a younger patient.
6. The members considered whether there might be any advantage to the patient in her having one transfer of 5 embryos rather than the same number (or possibly 6) being replaced over two transfers. The members considered that pregnancy rates achieved following separate embryo transfers from a single egg collection were on the whole better than those following a single transfer of a large number of embryos. The Members did not agree that the transfer of more than 3 embryos in a single cycle is “medically necessary” or “medically essential” in this patient’s case.
“The Authority did not agree that in this patient’s case the transfer of more than 3 embryos in one treatment cycle would significantly increase the chances of a live birth without a more than negligible increase in the risk of a higher order multiple pregnancy. Accordingly, the Members did not feel that this case could be regarded as an exception justifying departure from the guidance in the Code of Practice. The Members recognise that one factor might affect future decisions in that the state of the clinical evidence (and therefore the evaluation of the risk) might change.”
The application for judicial review of the first decision
“(1) fettering its discretion in treating its own Code of Practice as “authoritative” and refusing to depart from that guidance despite the existence of exceptional circumstances;
(2) taking into account irrelevant factors and not taking into account relevant considerations in making its decision; and
(3) failing to give any rational or proportionate reasons for its decision, and thereby inviting the inference that it has acted irrationally.”
“There has plainly been no fettering of discretion: the advice does not accord a disguised mandatory status to the Code, but is based on consideration of the merits of the individual case.
I see no reason to reject the statement in paragraph 4 of the letter of 4 December 2000 that the Authority considered very carefully the information contained in the claimant’s letter of 16 November 2000. Grounds do not show that the Authority took into account something that it was not legally entitled to take into account, all failed to take into account something that it was legally required to take into account. The arguments advanced by reference to relevant/irrelevant considerations are in truth an attempt to canvass the merits of the case before the court. That is not the role of the court on judicial review - a point of particular importance in relation to matters of judgment by an expert body in a specialist field.
The decision is not arguably irrational.
Article 6 ECHR is not engaged.
If and to the extent that the advice given by the Authority interferes with the rights of the second claimant under Articles 8 and 12 ECHR, the resulting issues were properly considered by the Authority which was entitled to conclude (paragraphs 16 - 18 of letter of 4 December) that any such interference was justified as being in accordance with law and no more than necessary to meet a legitimate aim.
“However, wherever the boundaries of judicial review are drawn for these purposes, it remains fundamental to the arguability of the claimant’s case that there be features demonstrated which arguably take the decision out of the range of available decisions. Even with a more intrusive approach, the court would be bound to allow substantial room for the application of expert and scientific judgment by the bodies specifically entrusted to provide guidance in these sensitive medical and ethical areas.
Fundamental to leading counsel’s submissions is the contention that, whilst the balancing exercise carried out by the Authority reflected the correct approach to be adopted, the inputs to the analysis of harm and benefit which would flow from the use of 5 rather than 3 embryos in one cycle, arguably involved such a significant degree of misunderstanding of the relevant scientific considerations as to enable the decision to be described as one falling outside the range of available decisions, even on the basis of a more limited available range.”
As that was patently not the case, Ouseley J concluded that the application for judicial review was unarguable.
15. Plainly, the [Authority’s] statistics and the letters cannot live together. However, Miss Rose pointed out that the Authority as a whole had specifically considered the matter; that is to say the Authority, rather than the licence committee responsible for the two letters which I have referred to, was responsible for the reasoned decision letter upon specific consideration of the second claimant’s individual circumstances. She also pointed out that in a letter dated 14th August 2000, the Authority had acknowledged that the earlier letters were referring to the wrong statistics, and in fact [these] statistics [relating to cycles between 1991 and 1998] were those which had been relied upon.
16. It is true to observe that the renunciation of the earlier correspondence could have been more explicit, but the error to which that earlier correspondence was prey is not repeated in the decision letter under consideration.”
“25. The debate, to my mind demonstrated three points. First the Authority had a clear answer to the statistical point that had been raised by leading counsel, both as to the figures which it actually used and as to the fact that those statistics did not arguably contradict the fundamental approach it adopted, namely the risk of multiple births from pregnancy should it occur was greater with a patient who had good eggs if more than three were transplanted. Secondly, the Authority considered the specific medical circumstances and age of the second claimant, rather than applying its policy guideline without considering what was appropriate for a woman with her characteristics of age and egg producing capabilities. Thirdly, however intrusive a level of scrutiny by the court might be appropriate, the court could not be the adjudicator between two views of an academic paper or its relationship to the United States National Vital Statistics Reports referred to in paragraph 10 of the letter, or the Schieve paper. Certainly [leading counsel] had not demonstrated that it was clearly arguable that there was a serious misunderstanding by the Authority of that academic paper falling outside the scope of appreciation available to a specialist and an expert body.”
“27. As to whether two successive cyclical treatments with three eggs as opposed to five eggs in one cycle would achieve better prospects of pregnancy without a greater risk of multiple births, the Authority was entitled to reach the view it did in paragraphs 6 and 7 of its reasoned decision letter. There may of course be two reasonable views possible but to suggest that the absence of success so far for (Mrs H) showed the Authority’s view to be outside the range available to an expert body, again simply impermissibly invites the court to have a range of medical views deployed before it and to decide between them for itself.”
The judge concluded:
“30. I do not consider that any of the other points raised by [the clinic] in paragraph 13 of [its] skeleton argument raise an arguable point on rationality, within even the narrow limits applicable because of the potential engagement of Articles 8 and 12 of the Human Rights Convention. They all come back to or depend upon the statistical issues discussed above. I do not consider that the decision letter shows any fettering of the Authority’s view such that the appropriate or proportionate application of the guidelines to this particular patient was ignored. On the contrary, the relevant personal medical information was sought, and a conclusion was reached in the light of the significance of the production, even at her age, of a large number of good quality embryos with little artificial stimulation.
31. It may be that the circumstances in which the Authority give different advice as to appropriate practice are indeed very limited, but it may also be that in comparison with other opinions, for example the United States appears to favour no more than two embryos being transferred, United Kingdom guidance is already drawn more generously in the first place.
32. I have taken some time to set out my reasons in some detail, notwithstanding that this is but an application for permission, because (Mrs H)’s circumstances do warrant anxious and indeed sympathetic scrutiny. It is my judgment, however, that the submissions placed before this court on behalf of both parties, by which I mean the claimants and defendant, have shown this to be a case in which there is no arguable point, and that the asserted errors are not errors at all but at the best differences of expert view, the resolution of which is for the Authority and not for the court.”
“My reason for a partial departure from it is that I accept the thrust of submissions made by Ms Schwehr that up until the moment when the assistance was received in this court from Miss Rose, the Authority had not clearly dealt with the point that arose in relation to statistics. The letter (of 14 August 2000) is not an explicit disavowal of those earlier errors, and the relevance of the true statistics is not explicitly dealt with in the decision letter.
Secondly, whilst the decision letter undoubtedly identifies the importance of the availability of good quality embryos to transfer as being the basis for the conclusion that the patient would be at high risk of multiple birth, there is no explanation of why that might be so. It might be a matter of statistics, it might be a matter of mechanics, but nothing was explained.
The second decision
“The false impression of low multiple pregnancies in older patients comes from the low pregnancy rate in general in this age group. Therefore, we conclude that women over the age of 35 should not be treated differently than their younger counterparts with regard to the number of embryos transferred, unless there is an individual indication to transfer more
There is nothing in the text of the paper to suggest that 40 is a “cut off point”. Miss Rose commented, and we agree with her, that the use of the phrase “regardless of the age of the patient” is surprising, if the paper was in fact intended to be relevant only to patients aged 40 or under.
“The Authority has considered carefully, whether, in this case, the transfer of more than three embryos would be likely to significantly enhance the chance of this patient becoming pregnant, and whether any such benefit is outweighed by a greater risk of a multiple pregnancy. The Authority has assessed both the general state of clinical knowledge and the available statistics and the facts of this case.”
“7. The Authority also considered the US data for the years 1995 to 1998 and the additional data and information provided by Dr Schieve concerning cycles between 1996 and 1998, involving women aged 46 or over.
8. The Authority recognises that the available data relating to patients over the age of 46 is very limited. The revised UK data confirms that there have been no live births in the UK for any patient aged 46 or over. Furthermore, apart from the data for 1995, (which indicates a success rate of patients aged 47 or over was zero), the US data for the years 1996 to 1998 confirms that very few women aged 47 or over have treatment using their own eggs.
9. The data information from Dr Schieve confirms that between 1996 and 1998 there were 394 procedures involving women aged 46 or over using their own eggs. Amongst these there were a total of 14 procedures (3.6%) that resulted in a live birth of which 6 (43%) were multiple births. The Authority recognises that this data involves very small numbers and cannot be broken down into further categories. The Members also took into account the points made in your letter dated 27 June 2001. Nevertheless, the data indicate a multiple birth rate of 43% for procedures involving the use of patient’s own eggs.
10. The Authority is anxious to avoid multiple pregnancies, not just births. This is in line with the guidelines of the Royal College of Obstetricians and Gynaecologists and the British Fertility Societies. The Authority noted that 1998 US data refers to there being “almost twice as many triplet pregnancies as triplet births”. Information on medical multi-foetal pregnancy reduction is incomplete and not provided within the US data.
11. The Members considered that the reduction in embryo quality would reduce the prospects of a live birth (including a multiple birth) in this patient’s case. The Members noted the comments made about the likely viability of the embryos. The Members noted the treatment history of this patient, in particular her age and the number of previous cycles that had failed. They noted that, after 8 cycles in which 24 embryos have been transferred, no pregnancy has occurred. The Members considered it almost certain that any future treatment will fail whatever number of embryos are transferred. The Members considered that it is very doubtful that increasing the number of embryos transferred will have any significant effect on this patient’s chance of pregnancy.
12. On the other hand the members considered that in the very unlikely event that the patient succeeds in becoming pregnant, the risk of a multiple pregnancy would be higher if five embryos are transferred rather than three. In the context of the very low chance of pregnancy for this patient the Authority considered that a possible marginal improvement in that chance was outweighed by the attendant risks (albeit small) of a multiple pregnancy if five embryos are transferred. The Authority did not agree that the transfer of more than three embryos in one cycle could be considered “medically necessary” or “medically essential” in this patient’s case. The Authority also noted that health risks associated with multiple pregnancy are particularly severe for older women.”
“I initially considered this application on 26 June, two days before the Authority was due to reconvene on the case. It was evident that, whatever the legal character of the further decision, it was going to traverse all the ground, new or old, relied on by the applicants. This seemed to me preferable, even from the applicants’ point of view, to a judicial review appeal in which at least one important element was going to have to be introduced (if at all) as fresh evidence and in which intractable problems of interventionism and deference were going to arise. If there was ever a field in which the important thing was a properly considered decision by an expert body and not a court, it is this.
I was also concerned at the tone of some of the correspondence, which appeared designed to put pressure on the Authority to capitulate rather than to reconsider. Rowe and Maw’s lengthy letter of 13 June 2001 to the Authority’s solicitors, with its hectoring prose and typographical extravagances, is entirely unacceptable in judicial review proceedings, and never more so than when the subject-matter is as difficult and as fraught as it is here. One knows that costs are always a residual problem where an application is pre-empted by voluntary reconsideration, but this is not solved either by such correspondence.
I now have before me the further decision of 28 June, together with Rowe and Maw’s letter of 18 July and the associated documents. I accept that the preferable course is to bring the new decision on board by amendment, and so have granted permission in principle to amend, but I do not consider that any of the proposed heads of challenge is tenable.
Clearly, any challenge now has to be to the 28 June decision. The earlier decision, however, and the critiques of it are part of the evidence in support of the fresh challenge. I do not accept, even so, that the inevitable imperfection or paucity of empirical date can possible serve to impugn the rationality of either decision. So far as there was an initial misappreciation of the data (which can, I accept, go to rationality), this has been corrected. For the rest, the Authority must make what it considers right of the materials at its disposal. No court can be asked to re-evaluate the data.
The argument that the Authority has fettered its discretion is, I have to say, sophistry. It is one thing for a decision-maker to decide in advance that no applications of a particular kind are going to succeed. It is another to reach a reasoned decision which no doubt would - and arguably should - be reached again similar facts. To call the latter a fettering of discretion is to damn the Authority if it attempts to achieve consistency from case to case and to damn it if it does not.
The initial allegation under head 3 (“the Authority is merely selectively choosing extracts from the data which support its own position...”) is not of fettered discretion but of bad faith. The only support offered for it is the Authority’s re-evaluation of certain research data. The allegation is unsustainable.
The ECHR claim has been based throughout on an unargued assumption that Article 8 and Article 12 Rights are engaged. I see no reason to assume that they are. But if they are, they have been contingently addressed with care by the Authority, and I see no realistic prospect that a court would reach a different conclusion if the Authority’s decision is otherwise sound.
Although the applicants do not raise it, I have also considered whether the shift in the intensity of review signalled by the recent decision in Daly is capable of affecting the prospects of this application. In my view it cannot do so.
We entirely agree with Sedley LJ’s analysis.
(1) that the second decision was an attempt by the Authority to pre-empt the appeal from Ouseley J’s decision refusing permission to apply for judicial review of the first decision;
(2) that the Authority acted irrationally in placing reliance on the statistics contained in the report of Dr. Schieve;
(3) that the Authority's conclusions in paragraph 11 and 12 of the second decision letter dated 11 July 2001 relating to the risk of the treatment of Mrs H with more than three embryos resulting in a multiple birth were irrational.
In our judgment, none of these propositions is arguable. However, we consider them briefly in turn.
Pre-empting the appeal from the decision of Ouseley J.
Reliance on Dr Schieve
Irrationality in paragraphs 11 and 12 of the letter of 11 July 2001
Order: applications dismissed with the costs.