Almost a year ago the High Court handed down judgment in the cases of Tony Nicklinson and “Martin”. The two men were seeking clarification of the law relating to euthanasia and assisted suicide.  Euthanasia involves not merely assisting another to commit suicide but actually bringing about the death of that other. 

The court refused the relief that they sought and the matter was therefore appealed. Today the Court of Appeal handed down a 90 page judgment.  
 
In summary, the DPP has to review his policy on prosecutions under Section 2(1) of the Suicide Act 1961. 
However the matter is now to be appealed to the Supreme Court. 
 
Background 
 
Readers will recall our previous briefing note dated 17 August 2012. That related to both Mr Nicklinson and “Martin” who suffered from catastrophic physical disabilities but whose mental processes were unimpaired in the sense that they were fully conscious of their predicament. They suffered from “locked in syndrome”. Both determined that they wished to die with dignity and without further suffering but their condition made them incapable of ending their own lives. Neither was terminally ill and they faced the prospect of living for many years. 
 
Unfortunately after the last case Mr Nicklinson passed away, having refused fluids, nutrition and medical treatment. However his widow was allowed to proceed with the appeal and another party, Mr Lamb was added into the case 
too. 
 
The patients 
 
Paragraphs 5 - 15 of the judgment set out the circumstances under which the appellants live and the court found this made distressing reading and evoked the greatest sympathy. 
 
The court noted that a few months after last year’s high court decision, Martin attempted to stop eating and drinking in order to dehydrate and starve himself to death. However we are told that this failed in the most distressing of circumstances and that he now wants to travel to Dignitas in Switzerland but he cannot do this without assistance. Understandably his wife does not want to play any part in bringing about his death. He is reluctant to ask his father or brother to assist, which means that he has no option but to request assistance from a stranger.  
 
Mr Lamb was added as a party in order to advance one of Mr Nicklinson’s former arguments ie, that there should be a defence of necessity available to anyone bringing about his death. Mr Lamb was paralysed following a car accident and is completely immobile except for his right hand. He wishes a doctor to end his life.
Mrs Nicklinson was added as a party in her own right due to the argument that, as a spouse of a party wishing to die, she could argue that her rights under Article 8 European Convention On Human Rights (ECHR) are infringed as a result of denying the remedy to the party wishing to die. 
 
The law
 
Please see our previous briefing note in this regard. 
 
The Court of Appeal note at the outset that these appeals raise complex and highly controversial moral and ethical issues concerning the sanctity of life and the limits of autonomous self determination. They also observe that the appeals raise important constitutional issues about the role which courts should play, if any, in resolving these difficult ethical problems. 
 
The arguments were, essentially, that the right to die at the time of one’s own choosing engages fundamental common law rights and the right to a private life protected by Article 8 ECHR. 
 
The law is summarised at paragraphs 16 – 36 of the judgment including a review of the cases of Pretty, Purdy and Bland. 
 
The judges even quote from the poet Arthur Clough “thou shalt not kill but needst not strive officiously to keep alive” 
 
Our involvement 
 
The care provided to Martin was commissioned by his PCT (now CCG). We have been advising that CCG 
although they did not play an active role in the appeal. 
 
The Arguments raised in the Court of Appeal 
 
The Court of Appeal identified three issues from the parties’ submissions: 
  1. The common law should provide a defence to murder where that takes the form of euthanasia in circumstances where another party is giving effect to the settled wish of a competent person(this was raised by Mr Lamb). 
  2. The legal prohibitions on those providing assistance constitute a disproportionate interference with Article rights (this was raised by both Martin and Mr Lamb). 
  3. The DPP’s policy statement on factors which he will take into account when considering whether or not to exercise his discretion in favour of prosecuting does not satisfy the criteria  that interference with Article 8 must be in accordance with the law (this was raised by Martin). 
Issue One – Defence to Murder 
 
The Court of Appeal noted that no other country in the common law world has gone this far. They felt that this raised “insurmountable hurdles”. 
 
They also felt that the argument was inconsistent with some of the other arguments raised. 
 
In summary the judges concluded: 
 
  1. Even if there are rights of autonomy and dignity (which they doubted) the sanctity of life was an even more fundamental principle so there was no reason why it should give way to autonomy and dignity.
  2. It is wrong to say there is a right to commit suicide. If there is no right to kill yourself there can be no right to require the State to allow others to assist you to die or to kill you.
  3. It is not appropriate for the court to fashion a defence of necessity in such a complex and controversial field; this is a matter for Parliament. Parliament as the conscience of the nation is the appropriate constitutional forum. Judges might be influenced by their own particular moral perspectives and there is a danger that any particular decision influenced perhaps by sympathy for an individual may have unforeseen consequences creating an unfortunate precedent binding in other contexts. It was noted that the courts could not develop a defence of assisted suicide when Parliament had stated in unequivocal terms that it is a serious criminal offence carrying a maximum sentence of 14 years’ imprisonment. 
 
Issue Two – Article 8 ECHR 
 
The High Court had concluded that Article 8(1) rights were not infringed by the absolute prohibition on assisted dying. It was argued in the Court of Appeal that other judgments do not support the proposition that a blanket ban on assisted suicide or euthanasia is necessarily a proportionate interference with Article 8 rights in all circumstances. 
 
The Court of Appeal here considered in detail the judgments in Pretty (both House of Lords and Strasbourg), Purdy, Haas and Koch (other Strasbourg decisions). 
 
The Court of Appeal conclude that: 
 
  1. A blanket ban is fully compatible with Article 8(2). 
  2. Neither Purdy in the House of Lords or subsequent Strasbourg cases cast any doubt on that conclusion. 
  3. It would be improper for the court to find a blanket prohibition to be disproportionate where this is not dictated by Strasbourg jurisprudence. 
  4. It would be inappropriate for the courts to fashion domestic Article 8(1) rights exceeding the protection afforded by the requirements of Strasbourg in direct opposition to the will of Parliament as reflected in section 2 of the 1961 Suicide Act. 
  5. Martin has no right to require the DPP to desist from prosecuting a carer or doctor who helps him to die and the DPP cannot be required as part of his prosecution policy to identify a category of cases where a prosecution will not be initiated.
 
Issue Three – DPP’s prosecution policy 
 
Please see Appendix for details of the policy. 
 
The Court of Appeal start by observing that any law interfering with Convention rights must reach a certain level of clarity before it constitutes “legitimate interference”. There has to be a measure of forseeability so that the law is sufficiently clear in its terms to give individuals an adequate indication as to the circumstances in which and the conditions on which public authorities are entitled to resort to the impugned measures. 
 
The argument for Martin here was that, whilst the policy met the forseeability requirement in respect of someone with emotional ties to the “victim” who acts in good faith and out of compassion and where there are no grounds for concern about motives (a class 1 case), it did not meet the forseeability requirement in respect of “helpers” with no close or emotional connection (a class 2 case). 
 
It was submitted that several factors in the DPP’s policy tended to favour prosecution of healthcare professionals eg:
  • where the helper is acting as a healthcare professional and the victim is in his or her care;
  • the helper is paid by the victim, or those close to the victim, for their encouragement or assistance;  
  • the helper is, by providing assistance in the course of paid work, motivated in part by the prospect of financial or other gain; and  
  • the helper gives encouragement or assistance to more than one victim who were not known to each other. 
It was also submitted that several factors in the DPP’s policy tended against prosecution which may not be engaged in respect of the “helpers” above. Therefore the argument was that the policy gives no indication of how these various factors are weighed by the DPP in such cases. It was asked whether compassion and respect for his autonomy were the most important public interest considerations or whether the most important consideration was the need to prevent professionals with caring responsibilities from assisting with suicide in these or any circumstances. 
 
The Court of Appeal noted that the Commission on Assisted Dying reported that the operation of paragraph 43 (14) was causing difficulty and confusion amongst healthcare professionals. 
 
The majority of the Court of Appeal conclude that it is not sufficient for the DPP’s policy merely to list factors that the DPP will take into account in deciding whether to consent to a prosecution under the Suicide Act 1961. A list of factors which gives no clue as to how the discretion to grant or withhold consent will be exercised is not sufficient to meet the requirements of Article 8(2). 
 
They go on to say that if there is a list of relevant factors which do not enable the person concerned to foresee (to a degree that is reasonable and adequate in the circumstances) the consequences of his action then article 8 (2) is not satisfied. 
 
They note that the graver the consequences the more important it is that the consequences are foreseeable (assisting a person to commit suicide is a criminal offence which carries a maximum sentence of 14 years imprisonment). 
 
In particular, the majority of the Court of Appeal did not feel that the DPP’s policy was sufficiently clear to satisfy the requirements of Article 8(2) in relation to healthcare professionals. They look at this in detail at paragraph 140 of the judgment. They comment that it is not surprising that healthcare professionals are reluctant to assist victims to commit suicide. They ask: 
 
  • How does it apply in the case of a medical doctor or nurse who is caring for a patient and, out of compassion, is willing to assist the patient to commit suicide but is not, as it were, in the business of assisting individuals to commit suicide? 
  • How much weight is given by the DPP to Paragraph 43 (14 ) alone? If the professional accepts some payment for undertaking the task will that be likely to involve a finding that he or she is not wholly motivated by compassion thereby triggering Paragraphs 43 (6) and 43 (13)? 
While noting that these are crucial questions for healthcare professionals who may be contemplating providing assistance it is of no less importance to victims. 
 
The majority of the Court of Appeal is of the view that the DPP’s policy should give some indication of the weight that the DPP accords to the fact that the “helper” was acting in his or her capacity as a healthcare professional and the “victim” was in his or her care. They took reassurance from a European case in which judgment was delivered in May 2013 (during the course of the hearing) and which “strongly reinforced” the conclusion of the majority of the Court of Appeal. 
 
The Lord Chief Justice did not agree with this but the majority of the Court of Appeal want it spelt out 
unambiguously. They accepted that it would be impractical if not impossible to lay down guidelines which would embrace every class 2 case but did not think it impractical or impossible to amend the policy to make its application clearer. 
 
The Lord Chief Justice made the following points to support his view that Martin’s appeal should be dismissed: 
  • The responsibilities of the DPP and courts are distinct and separate and should not be blurred. 
  • If the DPP is required to promulgate policy relating to his prosecutorial decisions the opportunity for satellite litigation is increased. 
  • Prosecutorial guidance is in danger of expanding into a method of law reform. 
  • We cannot keep ordering and re ordering the DPP to issue fresh guidelines to cover each new situation. 
  • A one by one tick box approach to these factors would not only be inappropriate but unwise. The decision does not depend on whether a larger or lower number of factors fall within the prosecution or non prosecution compartments. The decision has to be made on the overall facts, balancing all those factors. 
  • The policy underwent a wide public consultation. 
  • A family relationship is given no specific weight either way.  It is not a necessary ingredient of the decision to withhold consent to a prosecution that the suspect should be a member of the family or some blood relative or indeed a close relative. A non family member is not, for that reason alone, at any disadvantage. 
  • Payment is contrasted with compassion but a common sense approach to payment is required. What is anticipated in Martin’s case can hardly be described as profiteering. 
  • This policy is sufficiently clear to enable Martin, or anyone who assists him, to make an informed decision about the likelihood of prosecution. 
Conclusion
 
It would appear that the parties for one reason and another will be seeking to appeal to the Supreme Court – watch this space!