The Assisted Reproduction And Gynaecology Centre, R (On the Application Of) v The Human Fertilisation And Embryology Authority

A statutory regulator’s discretion must be exercised consistently with the purpose of its enabling legislation and for the benefit of the class whom the power is intended to serve. The decision-maker must obtain sufficient information, take account of legally relevant considerations, present significant arguments fairly and give conscientious consideration to consultation responses. Consultation need not be repeated for every modification to a proposal where the issues have already been properly consulted upon and the changes remain within the scope of the process. The court must not substitute its view on the merits or scientific merits of a regulatory choice. It may intervene only where the decision is irrational or outside the range of reasonable responses.

The claimant, a licensed fertility clinic, sought judicial review of decisions by the Human Fertilisation and Embryology Authority concerning the presentation of clinic success-rate information on its Choose a Fertility Clinic application. The challenged decisions concerned the use of live births per embryo transferred as the primary IVF headline metric, comparison with the national average using patients under 38, and presentation of IVF birth rates in three age groups.

The claimant alleged breach of statutory purpose, inadequate inquiry, failure to take relevant considerations into account, unfair consultation and irrationality. The Authority relied on its consultation exercises, expert and stakeholder material, and the availability of more detailed information elsewhere in the application.

1. Outcome. Permission to apply for judicial review was granted, but the claim and relief sought were dismissed.
2. The Authority’s statutory discretion was not unfettered. It had to act consistently with the purposes of the Human Fertilisation and Embryology Act 1990, take account of the persons for whose benefit its information function was conferred, and avoid relying on irrelevant considerations.
3. The Authority had identified and considered the advantages and limitations of both principal IVF metrics. It was entitled to prefer live births per embryo transferred because the metric promoted good embryo-transfer practice, reinforced the policy of reducing multiple births, could be explained to patients, and had professional support. The availability of further information elsewhere in the application was relevant.
4. The Authority had conducted sufficient inquiry and presented the arguments for and against the proposed metric in a fair and balanced manner. It was not required to adopt the majority view expressed in consultation responses, provided those views were conscientiously considered. It could attach greater weight to clinicians and professional bodies.
5. The consultation on the headline presentation adequately covered age and treatment aggregation. The subsequent modifications did not require further consultation. The Authority had also conscientiously considered the strong opposition to age aggregation and was entitled to prefer larger and more statistically reliable groups.
6. The decisions were rational and fell within the range of reasonable responses open to the Authority. The court was not entitled to decide which success metric was preferable or to enter the scientific debate.