Introduction

The High Court handed down judgment on 16 August 2012 in relation to the highly publicised cases of Tony Nicklinson and “Martin” (his real identify has been anonymised). The two men were seeking, clarification in relation to the law relating to euthanasia and assisted suicide respectively. Mills & Reeve acted for the PCT who was an interested party in the case of “Martin”.

These cases follow a line of cases involving broadly similar issues, including those of Dianne Pretty and Debbie Purdy, which readers may be familiar with.

In summary, the relief that both men sought in relation to bringing their lives to an end in a way which would constitute euthanasia or assisted suicide was refused by the Court.

Background

Mr Nicklinson and “Martin” suffer from catastrophic physical disabilities but their mental processes are unimpaired in the sense that they are fully conscious of their predicament. They suffer from “locked in syndrome”. Both have determined that they wish to die with dignity and without further suffering but their condition makes them incapable of ending their own lives. Neither is terminally ill and they face the prospect of living for many years.

Barring unforeseen medical advances, neither “Martin” nor Mr Nicklinson's condition is capable of physical improvement.

Although they have many similarities, there are some differences in their condition. There were also differences in the orders which they sought and the ways in which their cases were presented.  

The cases relate to assisted suicide or euthanasia. In summary, euthanasia is generally defined as the intentional killing by act or omission of a person. In the context of this case it would involve active voluntary euthanasia, ie, Mr Nicklinson requesting someone else help him bring about the end of his life. Assisted suicide is where a person does an act capable of encouraging or assisting the suicide or attempted suicide of another person, where that act was intended to encourage or assist suicide or an attempt at suicide and is a more wide reaching concept as far as the criminal code is concerned.

“Martin”

“Martin” is 47 years old. He lives with his wife and his wife’s daughter. In August 2008 he suffered a brain stem stroke. This has left him virtually unable to move. He cannot speak. He can communicate only through small movements of his head and eyes and, very slowly, by using a special computer that can detect where on a screen he is looking. He is totally dependant on others for every aspect of his life. His care is provided by his wife and by full-time carers provided by his local NHS Primary Care Trust.

“Martin” has a strong, settled and reasoned wish to end his life.  

“Martin” would be capable of physically assisted suicide but this would involve someone else committing an offence under the Suicide Act 1961, Section 2. It would be possible for him to end his life at a Dignitas clinic in Zurich without an offence being committed under Swiss law. His wife was not willing to assist him with this.

“Martin’s” claim was that the DPP should clarify his published policy so that other people, who may on compassionate grounds be willing to assist “Martin” to commit suicide through the use of Dignitas, would know, one way or the other, whether they would be more likely than not to face prosecution in England. The potential helper or helpers might be a member of the public who had no previous knowledge of “Martin”, a health professional or a solicitor who might act as an intermediary in making the necessary arrangements.

Tony Nicklinson

Mr Nicklinson is now aged 58. He suffered a catastrophic stroke in June 2005. He is paralysed below the neck and unable to speak. He cannot move anything but his head and eyes. He communicates by blinking to indicate a letter held up by his wife on a perspex board. He is virtually housebound. Although the family has a wheelchair adapted car, he rarely goes out as he has lost interest in doing so. His meals are soft food, mashed up and taken orally and fluids inserted directly into the stomach, through the abdominal wall, by a PEG tube.

As things are, the only way in which Mr Nicklinson could end his life other than by self-starvation would be by voluntary euthanasia. With his wife’s help he could probably travel to Switzerland, but Dignitas only offers assisted suicide facilities, not ones for euthanasia. The Court observed that no country in the world permits the practice of voluntary euthanasia in the case of non-residents. He wished to be able to choose to end his life by voluntary euthanasia.

Powerful statements from him are quoted at paragraphs 13 and 14 of the judgment.  

The current legal framework

Those suspected of euthanasia in England and Wales will face a murder or manslaughter charge. Whether or not a charge will be faced will be determined by the Crown Prosecution Service(CPS)/Director of Public Prosecutions (DPP).

Section 2 of the Suicide Act 1961 outlines that a person commits an offence if they do an act capable of encouraging or assisting the suicide or attempted suicide of another person, and that act was intended to encourage or assist suicide or an attempt at suicide. It is important to note that the Act does not require a successful suicide to have taken place for there to be a breach of the Act.

The DPP has issued guidance as to whether or not someone who assists a suicide will face prosecution. It is worth noting that the DPP will always look at two elements for any prosecution. Firstly, whether the evidential test is met that the crime took place and the secondly is whether it is in the public interest to pursue a prosecution. The public interest test has been a deciding factor in whether or not to prosecute in previous cases of assisted suicide and has resulted in various people who have assisted a family member to not facing prosecution.

For the purpose of this briefing, it is worth noting that the DPP’s guidance, as it currently stands, makes it clear that a suspect acting in his or her capacity as a medical doctor, nurse, other healthcare professional, a professional carer (whether for payment or not), or as a person in authority, such as a prison officer and the victim is in their care, will be likely to face prosecution for assisting with a suicide of that person.

Issues for the Court

The Court identified five central issues:  

  1. Is voluntary euthanasia a possible defence to murder?
  2. Is the DPP under a legal duty to provide further clarification of his policy?
  3. Alternatively, is section 2 of the Suicide Act incompatible with Article 8 ECHR in obstructing “Martin” or Tony from exercising a right in their circumstances to receive assistance to commit suicide?
  4. Are the GMC and the SRA under a legal duty to clarify their positions?
  5. Is the mandatory life sentence for murder incompatible with the ECHR in a case of genuine voluntary euthanasia?

For the purpose of this briefing, we will focus on the messages central to health professionals.

The Court’s reasoning (with the leading judgment being given by Toulson LJ)

Previous cases

The Court spent some time reviewing the case of Bland. They quote substantially from it. They distinguish these cases from it on the basis that the judges in Bland reached a decision that Anthony Bland’s condition was such that doctors no longer had a legal duty to continue invasive care and treatment. They felt that the law drew a distinction between omissions to maintain treatment and the administration of a legal drug. They quoted from Lord Goff who said in Bland that for a doctor to administer a drug to his patient to bring about his death was to “cross the Rubicon” which runs between the care of his patient and euthanasia.

The Court’s general observations

The judgment starts by saying that these tragic cases present society with legal and ethical questions of the most difficult kind and they also involve constitutional questions. This sets the tone.

Toulson LJ outlined that he was satisfied that the law maker in this area (euthanasia and assisted suicide) should be Parliament.

The Court outlined that it is one thing for the courts to adapt and develop the principles of the common law incrementally in order to keep up with the requirements of justice in a changing society but major changes involving matters of controversial social policy are for Parliament.

A decision by the Court to alter the common law so as to create a defence to murder in the case of active voluntary euthanasia would be to introduce a major change in an area where there are strongly held conflicting views, where Parliament has rejected attempts to introduce such a change and where the result would be to create uncertainty rather than certainty. To do so would be to usurp the role of Parliament.

As to control of the consequences, it is hard to imagine that Parliament would legalise any form of euthanasia without a surrounding framework regarding end of life care and without procedural safeguards.

For all of those reasons it would be wrong for the Court to depart from the long established position that voluntary euthanasia is murder.

Finally, the Court consulted that there was no Strasbourg authority which supported the proposition that a blanket ban on voluntary euthanasia is incompatible with Article 8 ECHR.

Is the DPP under a legal duty to provide further clarification of his policy?

“Martin’s” legal team argued that the DPP guidance was clear in relation to family members and friends who were willing to provide assistance, out of compassion, to a person in order for their suicide to be assisted. However, they argued that the policy was defective because it did not give sufficient clarity to individuals who were willing to act selflessly, with compassion and without suspect motives but who had no personal connection with the individual who wished to end his or her life. These people might be professionals, carers or others.

LJ Toulson outlined that, from the DPP’s policy statement, he believed that it would be clear to a person who, in the course of his profession, agreed to provide assistance to another with the intention of encouraging or assisting that person to commit suicide, that such conduct would carry with it a real risk of prosecution.

The Court could not see how the DPP could be expected to lay down a scheme by which a person would be able to tell in advance in any given case whether a particular factor or combination of factors on one side would be outweighed by a particular factor, or a combination of factors on the other side.

For the DPP to lay down a scheme by which it could be determined in advance as a matter of probability whether an individual would or would not be prosecuted would be to do that which he had no power to do, ie, to adopt a policy of non-prosecution in identified classes of case, rather than setting out factors which would guide the exercise of his discretion.

The Court decided that “Martin’s” claim against the GMC in relation to lack of a clear policy about regulatory implications also failed. The GMC guidance in relation to professional conduct therefore stands.

Conclusion

While the Court accepted that Mr Nicklinson and “Martin’s” circumstances are deeply moving, this case does not alter the law.

For those acting in a professional capacity, it is likely that, if found to be assisting a person to commit suicide within their professional role, they will likely face prosecution in accordance with Section 2 of the Suicide Act 1961. If they are involved in arrangements amounting to euthanasia, a prosecution for manslaughter or murder will likely follow.

Interestingly, the case relating to “Martin” did not involve an acute NHS provider but rather a commissioner of care (a PCT). We would urge both our commissioner and provider clients to be mindful of the legal position, be alert to any patients within their care who might be contemplating an assisted suicide and seek legal advice, if necessary. It is apparent that there remain clear regulatory, criminal and reputational issues at play in this type of case Mr Nicklinson has indicated that he will appeal the decision so we will update readers of any developments in due course.