Assisted Reproduction and Gynaecology Centre, R (on the application of) v The Human Fertilisation and Embryology Authority

Judicial review does not permit a court to decide between competing scientific or medical views. It may intervene in an expert regulator’s decision only for public-law error, including an excess or abuse of statutory power or a conclusion outside the range of rational decisions.

A published regulatory code may guide decisions consistently without fettering discretion, provided the regulator considers the individual circumstances and reaches a reasoned conclusion. Imperfect or limited empirical data, and professional disagreement about its significance, do not establish irrationality where the specialist body has carefully evaluated the available material.

The clinic and its patient sought an exception to the Human Fertilisation and Embryology Authority’s Code of Practice guidance that no more than three embryos should be transferred in one treatment cycle. They wished to transfer five embryos because of the patient’s age and unsuccessful treatment history.

The Authority considered the individual medical history and available evidence on more than one occasion. It advised that five embryos should not be transferred. Richards J and then Ouseley J refused permission to seek judicial review of the first decision. The Authority’s later decision superseded it.

The appellants renewed their application for permission to challenge the second decision and sought permission to appeal Ouseley J’s costs order. The central issues were alleged fettering of discretion, irrational reliance on statistical evidence, and the effect of potential Convention rights.

Disposition

The court dismissed both applications, with costs. It refused permission to apply for judicial review of the Authority’s second decision and refused permission to appeal Ouseley J’s costs order.

1. The Human Fertilisation and Embryology Act establishes a licensing and regulatory scheme in a specialist and rapidly developing scientific field. The Authority is amenable to judicial review, but the court may intervene only where it exceeds or abuses its statutory powers. It is not the court’s function to adjudicate on the merits of scientific disagreement.

2. The Authority had not treated its Code of Practice as an inflexible rule. It repeatedly obtained and considered information about the patient’s specific history, embryo quality, prospects of pregnancy and risk of multiple pregnancy. A reasoned decision which is likely to be repeated in materially similar cases is not a fetter on discretion.

3. The statistical challenge disclosed no arguable irrationality. Earlier inaccurate United Kingdom data had been corrected. The Authority recognised the limited nature of the remaining data and was entitled to assess its significance. Its conclusion that any marginal benefit from transferring five embryos was outweighed by the increased risk of multiple pregnancy was rational, even if another expert might disagree.

4. The court did not need to determine whether Articles 8 and 12 were engaged. Assuming that they were, the Authority had considered justification and proportionality with care. The conclusion was unchanged whether the traditional approach to review or the more intrusive intensity discussed in Daly [2001] UKHL 26 was applied.

5. The challenge to the first decision was also hopeless. The costs appeal could not succeed because Ouseley J’s partial costs order was substantially favourable to the appellants and the underlying judicial-review challenge was unarguable.

• Court of Appeal (Civil Division) — By this judgment, [2002] EWCA Civ 20, the court refused permission to challenge the Authority’s second decision and refused permission to appeal the costs order.
• Court of Appeal (single Lord Justice) — Sedley LJ permitted an amendment in principle to challenge the later decision, but refused permission to appeal and required any renewed application to be made on notice with a proper draft amendment.
• Administrative Court — Ouseley J refused permission to apply for judicial review of the Authority’s first decision and ordered the appellants to pay one half of the Authority’s costs.
• Richards J — On the papers, Richards J refused permission to apply for judicial review of the first decision.