Nicklinson v Ministry of Justice & AM v Director of Public Prosecution and others [16.08.12]
The High Court has rejected challenges from two Claimants suffering from “locked in syndrome” to change the law on assisted dying; it is for Parliament to decide whether to change the law on euthanasia.
The laws on assisted dying are complex, raising a myriad of moral, medical and practical issues, which go to the heart of considerations faced by both the judiciary and Parliament. There has been an increased clamour from the public to have a set of rules and regulations which make clear when people are able to end their own lives with assistance and when they may not. This case highlights the need for clarification as to when somebody may assist a person to die without any risk of public prosecution.
This case supports the need for legislature review in this area of law – as called for recently with the publication of the draft Bill on assisted dying. If that occurs, it is vital that safeguards are created which properly protect the public interest whilst at the same time, protect individuals from assisting others to die with dignity when they are unable to expedite their own death themselves.
It is timely that a draft Bill on assisted dying has recently been published, which allows for autonomy of the patient to be key to any decision as to assisted dying. That Bill places heavy reliance on the medical profession in determining whether a patient is capable of ending their own life and whether they should. The Bill however only allows for people with a terminal illness with less than a year to live to be legally assisted to die – thereby generally excluding cases of ‘locked in syndrome’ and Permanent Vegetative State. Special provisions would, therefore, need to be made for these (thankfully rare) cases. Had Tony Nicklinson sought authority to die with assistance under the terms of the draft Assisted Dying Bill, he would not have succeeded. To accommodate such individuals, the Bill will need to be flexible and extend the criteria of individuals able to seek assistance in dying beyond those with a terminal illness. This though will put greater reliance and pressure on the medical professionals to ensure the diagnosis and, crucially, the prognosis, are correct and not open to debate.
Pro-life campaigners will say this decision protects potentially vulnerable members of society, including the elderly. We do not accept the notion that to legalise assisted dying will risk vulnerable individuals being killed against their wishes. On the contrary, we are confident the strict safeguards being proposed, if put into practice, will ensure only those with a genuine and voluntary wish to end their suffering will be allowed to proceed.
There is a fine line between assisted dying and euthanasia. This line needs to be respected and properly explored. The Court has in this case deferred to Parliament to decide on the safeguards and laws which would govern this area of treatment. But, unless the Assisted Dying Bill is radically changed, individuals such as Mr Nicklinson will fall through the legal gap again.
It is evident that a full and proper debate must continue to address the suffering of patients who consider themselves to be living an unbearable existence.
For further background to the assisted dying debate, please read our article 'Assisted dying debate: promoting patient choice'.
The High Court recognised both Claimants’ wish to die with dignity and without further suffering. However, their condition makes them incapable of ending their own life. In the absence of unforeseen medical advancements, neither will improve in condition.
Martin’s main claim was against the Director of Prosecution (DPP). He was seeking an order that the DPP should clarify whether or not someone who assists him to commit suicide will face prosecution in England. If successful in his claim against the DPP, he also sought a declaration that a doctor or solicitor involved with his suicide would not be sanctioned by their regulating body - the General Medical Council (GMC) and Solicitors Regulation Authority (SRA), respectively. In the alternative, if his claim against the DPP failed, he sought a declaration that section 2 of the Suicide Act 1961 was incompatible with article 8 of the European Convention of Human Rights (ECHR) (right to life).
Mr Nicklinson sought relief by way of judicial review for a declaration that it would not be unlawful on the grounds of necessity for his GP or another doctor to terminate or assist the termination of his life. Alternatively, he sought a declaration that the current law of murder and/or of assisted suicide is incompatible with his right to respect for private life under article 8, contrary to the Human Rights Act 1998, insofar as it criminalises voluntary acts of euthanasia and/or assisted suicide.
The central issues were whether:
- voluntary euthanasia is a possible defence to murder
- the DPP is under a legal duty to provide further clarification of its own policy
- in the alternative, section 2 of the Suicide Act is incompatible with article 8 ECHR in obstructing Martin or Tony from exercising a right to receive assistance to commit suicide
- the GMC and SRA are under a legal duty to clarify their sanctioning positions
- the mandatory life sentence for murder is incompatible with the ECHR in a case of genuine voluntary euthanasia
Defence to murder
Lord Justice Toulson, Mr Justice Royce and Mrs Justice Macur sitting in the High Court held that it would be wrong for the Court to depart from the long established position at common law that voluntary euthanasia is murder, unless the court is required to do so by article 8 ECHR. To hold that article 8 requires voluntary euthanasia to afford a possible defence to murder would go beyond the role of Parliament. It would also be contrary to decisions of the Strasbourg authorities and the House of Lords - including in the cases of Mrs Pretty [2001/2002] and Mrs Purdy [2009/2010].
Legal duty of DPP
With regard to the legal duty of the DPP to provide further clarification of his policy, the Court was satisfied that the DPP has done what was required of him (by the decision in Purdy) and it would be wrong to require more of him. It was held that the DPP’s policy statement is clear that anyone who, in the course of their profession, agreed to provide assistance to another person to commit suicide, carries a real risk of prosecution.
The Court confirmed that whether such a risk would amount to a probability would depend on the individual circumstances. However, the Court added it would not be right to require the DPP to formulate this policy in such a way as to have a suitable test. Accordingly, the claims against the GMC and SRA also failed.
The Court held the compatibility of section 2 of the Suicide Act with article 8 had already been determined by the Strasbourg courts. However, if it were open to the High Court to decide, the Court would reject the claim on the grounds that the law relating to assisted suicide is an area of law where member states have a wide margin of appreciation. In the UK, this is a matter for determination by Parliament.
The Court declined to rule on the issue as to whether the mandatory sentence for life imprisonment for murder was incompatible with the ECHR in the case of genuine voluntary euthanasia. It did, however, refer to there being strong evidence that the public does not regard the mandatory sentence of life imprisonment as appropriate in cases of genuine voluntary euthanasia. Whether the sentence is incompatible with the ECHR is a matter which the Court should decide only in a case in which it is necessary to do so.
Whilst sympathetic to both Claimants, the Court concluded that to allow their claims “would have consequences far beyond the present cases.” To allow the claims would represent a major change in the law and compel the DPP to go beyond his established legal role: “It is not for the court to decide whether the law about assisted dying should be changed and if so, what safeguards should be put in place… these are matters for Parliament to decide.”