“Locked-in” sufferer’s challenge to ban on voluntary euthanasia fails in the high court

The Queen(on the application of Tony Nicklinson) v Ministry of Justice [2012] EWHC 2381 (Admin) – read judgment

Lord Justice Toulson, sitting with Mrs Justice Royce and Mrs Justice Macur, has  handed down judgment in the case of Tony Nicklinson and that of another “locked-in” syndrome sufferer, “Martin”. On all the issues, they have deferred to parliament to take the necessary steps to address the problems created by the current law of murder and assisted suicide.

Philip Havers QC  of 1 Crown Office represented Martin in this case. 

Tony Nicklinson sought a declaration of immunity from prosecution for a doctor who would give him a fatal dose of painkillers to end his life in Britain. He also sought a declaration that the current law is incompatible with his right to respect for private life under article 8, contrary to s1 and 6 of the Human Rights Act 1998, in so far as it criminalises voluntary active euthanasia and/or assisted suicide.

Martin’s claim was slightly different as his wife does not want to do anything which will hasten his death. He therefore asked for permission for volunteers to be able to help him get to the Dignitas clinic in Switzerland (under recent guidelines from the Director of Public Prosecutions only family members or close friends who are motivated by compassion are unlikely to be prosecuted for assisting a suicide). In the alternative he sought a declaration that section 2 of the Suicide Act is incompatible with the right to autonomy and private life under Article 8 of the European Convention. 

As Toulson LJ noted,

Barring unforeseen medical advances, neither Martin’s nor Tony’s condition is capable of physical improvement. Although they have many similarities, there are some differences in their condition. There are also differences in the orders which they seek and the ways in which their cases have been presented.” (para 4 – see our previous post for the factual background in the Nicklinson case.)

The court rejected both challenges.

The following is taken from the judicial office press summary:

The 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 in obstructing Martin or Tony from exercising a right in their circumstances to receive assistance to commit suicide?

4. Are the General Medical Council and the Solicitors’ Regulation Authority under a legal duty to clarify their positions?

5. Is the mandatory life sentence for murder incompatible with the Convention in a case of genuine voluntary euthanasia?” (para 26)

Issue 1: Is voluntary euthanasia a possible defence to murder?

Having considered the question without reference to Article 8 of the European Convention (paragraphs 50 – 87), Toulson LJ took the view that it would be wrong for the court to depart from the “long-established position” that voluntary euthanasia is murder, however understandable the motives may be, unless the court was required to do so by article 8. Article 8 did not in his opinion so require, since there was nothing in Strasbourg law that suggested that this provision requires voluntary euthanasia to afford a possible defence to murder.

To do so would be to go far beyond anything which the Strasbourg court has said, would be inconsistent with the judgments of the House of Lords and the Strasbourg court in Pretty, and would be to usurp the proper role of Parliament. (para 122)

Issue 2: Is the DPP under a legal duty to provide further clarification of his policy?

It was argued on behalf of Martin that the DPP’s policy provided the necessary degree of clarity for what he described as “class 1 helpers”, that is, family members and friends who were willing to provide assistance out of compassion. Debbie Purdy’s husband fell within that class, and so would Martin’s wife if she were willing to help. But that the policy was defective in that it failed to give adequate clarity as to another group, which he described as “class 2 helpers”, comprising 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. “Class 2 helpers” might be professionals, carers or others. It is at once apparent that class 2 helpers are not a ubiquitous class.” (para 127)

The court did not accept this submission. It should be clear from the DPP’s statement that any 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, would be under a real risk of prosecution.

Whether the risk would amount to a probability would depend on all the circumstances, but I do not believe that it would be right to require the DPP to formulate his policy in such a way as to meet the foreseeabilty test advocated by [Martin’s counsel]. (paras 139 – 140)

Issue 4: Are the GMC and the SRA under a legal duty to clarify their positions?

Since the court  rejected the claim that the DPP is obliged by law to publish further clarification of his policy on assisted dying, it followed that Martin’s claims against the GMC and the SRA also failed.

Issue 3: Is section 2 of the Suicide Act incompatible with Article 8?

The administrative court was bound by the House of Lords’ decision on the compatibility of Section 2 with Article 8 in the case of Purdy. Even if it had been open to this court to consider the matter afresh, it would have rejected the claim in any event on the ground that the law relating to assisted suicide is an area of law where member states have a wide margin of appreciation  and that in the UK this is a matter for determination by Parliament.

Issue 5: Is the mandatory sentence of life imprisonment for murder incompatible with the Convention in cases of genuine voluntary euthanasia?

The court acknowledged that there was “strong evidence” (considered by the Law Commission in its review of the law of murder) that the public does not regard the mandatory sentence of life imprisonment as appropriate in cases of genuine voluntary euthanasia, and that there have been calls for it to be changed. But it declined to rule on this issue as the question of whether it was incompatible with the Convention was “a matter which the court should decide only in a case in which it is necessary to do so.” (para 149)

Conclusion

Toulson LJ concluded that, whilst these cases were “deeply moving”, a decision to allow their claims would have consequences far beyond the present cases.

To do as Tony wants, the court would be making a major change in the law. To do as Martin wants, the court would be compelling the DPP to go beyond his established legal role. These are not things which the court should do. 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. Under our system of government these are matters for Parliament to decide, representing society as a whole, after Parliamentary scrutiny, and not for the court on the facts of an individual case or cases. For those reasons I would refuse these applications for judicial review.” (para 150)

In her concurring judgment Macur J added:

 Superfluous as it may therefore appear I nevertheless feel compelled to comment that the dire physical and emotional predicament facing Tony and Martin and their families may intensify any tribunal’s unease identified by Lord Mustill in Bland (at 887) in the distinction drawn between “mercy killing” and the withdrawal of life sustaining treatment or necessities of life. Judges of the Family Division sitting in the Court of Protection adjudicate upon applications for declarations in relation to the latter and have become well accustomed to the “balance sheet of best interests” which informs the decision of the Court. However, Mr Bowen QC does not succeed in persuading me that this process may reassure society that the development of common law for which he contends is merited by separate consideration of individual circumstances by individual tribunals of whatever stature and experience. The issues raised by Tony and Martin’s case are conspicuously matters which must be adjudicated upon by Parliament and not Judges or the DPP as unelected officers of state. (para 152)

A full analysis of this decision will follow.
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9 thoughts on ““Locked-in” sufferer’s challenge to ban on voluntary euthanasia fails in the high court

  1. Brings to mind that old Patience Strong T-Towel Poem.. “What is a Friend?”

    … this gentleman has expressed a wish to be taken to Switzerland and administered a cocktail of drugs that will end his life, and his wife (as a family member acting as his primary carer) has refused – or has stated she is not willing to do so. Seems odd that she hasn’t stood down as his primary carer therefore – her refusal seems odd, connived and stated simply…cruel.

    It seems cruel that his legal advisers (who could secure a statement from their client stating that they are his ‘close friends’), have not found a more suitable primary carer for him already….his ‘close friends’ could (and should) have booked a flight and escorted him there themselves years ago.

    I cannot see any change to the law is required.

  2. Lofthouse: I think (and hope) the solicitors are testing the law following instructions from the client. I know one of the people involved in the case is not ready yet to make his choice to die but wishes the choice to become available so he can carry it out when he chooses to.

    I just cannot get my head around nor accept that doctors are allowed (and on occasion forced to) withdraw nutrition and hydration (in opposition to family’s wishes and possibly the person’s best interests – just look at those who suddenly wake after years of coma and wrong diagnoses of brain death)) and thereby cause death by starvation and dehydration (which the person may be aware of and causes extreme distress and pain) but are not permitted to cause death by humane and dignified means, for example, an overdose of morphine. People who starve or dehydrate their pets are prosecuted for cruelty; animals are ‘put down’ using pharmaceuticals that cause no pain and ‘put them to sleep’ for ever, we do that to be ‘kind’.

    Must we have it logged in our notes that we refuse to consent to being murdered by doctors using inhumane methods such as being starved or dehydrated to death and would these instructions be followed? Why does the law (and medical ethics) not protect us from these cruel and inhuman treatments and the death sentence?

    We all know that some lucky terminally-sick patients are given morphine overdoses to help them on their way but nobody dare say so and the excuse of physical pain control is allowed. But what about emotional pain (of sufferer, family and friends), does this carry no weight?

    The UK no longer carries out the death sentence for serious crimes but inflicts this punishment on those who are ill (to save costs for the NHS/state), not criminals. The very few people who have and show a true desire to be helped to die and who have very easily understood reasons for their quite logical decision are denied the help they require which is (unless someone can buy street morphine or something and a syringe) under the control of doctors and they are strangely forced to keep alive (wasted costs for the state) those who wish to die.

    Why are very preterm infants kept alive at all costs (and at very considerable financial cost) when their lifetime prognosis may be very poor and support for their lifetime disabilities will be extremely expensive?

    The USA signed up to the UDHR yet still carries out the death penalty, how is this compatible?

    Why is ‘mercy killing’ still illegal in the UK but the withdrawal of food and water (the necessities of life) legal? Is this not murder by another name? If by an accident of birth or place of abode you happen to live in Holland you have the right to enlist the help of your doctor to help you die if you are suffering from an untreatable condition; the numbers doing so have remained steady so using the excuse of ‘floodgates opening’ or other such nonsense is ridiculous. Why is the UK lagging so far behind Holland in treating people humanely and how much of this is due to the GMC’s inadequate training of doctors and muddled thinking?

    Why are volunteers refused escape from prosecution? What if the person wishing/needing to die has no friends or family left, isn’t that discriminating against a particular group and favouring those with support networks and is this lawful?

    I have a morbid fear (based on personal past experience) of being awake and conscious, paralysed, ventilated, and then dying of hunger, thirst or suffocation (or all three), either from error or the wilful withdrawing of treatment carried out by doctors and sanctioned by the state which employs them and which makes unjust laws and enforces them.

    I’m a gate-crasher here – I’m not a lawyer so please forgive my naive questions and uneducated thinking but to my mind the law is an ass, doctors duty of care includes ending of suffering and end of life care – even if that means hastening death, and some medical techniques which the average man/woman on the Clapham bus would think were illegal (extreme neglect directly causing a cruel death) are being used inappropriately and proportionate and compassionate help to die a peaceful death is illogically refused when requested and required.

  3. A tweet I liked, from Lisybabe:

    “It never ceases to depress me how much the public supports disabled people fighting to die, & doesn’t give a crap about us fighting to live.”

    • @ Jenny Hughes
      Withdrawal of food and hydration is NOT legal in the UK without informed consent – it has been recognised by three judges to be murder in the GMC appeal against Munsby’s ruling.

      However, it still goes on-and no one is ever prosecuted, as the star witness always dies !

      The gentleman in this case – if his life is truly unbearable – can consent to being ‘terminally sedated’ – he is able to communicate his wishes, and can make his wife his medical decision maker should he become incapable of communicating his wishes – it will take him a few days to die – faster if he complains of intolerable pain and needs large doses of strong opiates- morphine, several fentanyl patches (anything sufficient to suppress his respiration) – and then his misery is over. Just refuse all treatment but Palliative Care tomorrow…then complain of pain….simple.

      In a country where ‘Dr’ Jane Barton was found guilty of deliberately prescribing morphine overdoses to non terminally ill patients who were in no pain at all – yet was not even struck off by the GMC (for whom a member of her family works as an expert witness) , let alone charged by the Police, I do not want anyone’s right to live eroded any further…as I found in my own father’s case- all a doctor has to do to avoid prosecution is remove the medical folder from the ward after the death, destroy the original care records, and rewrite ‘says he wants to die’ on a continuation sheet.

      @lisybaby + Tim :
      Disabled and elderly patients are ‘low quantum deaths ‘ – HRA cases are legally funded – Anne Reeves (a personal acquaintance) has 0 legal support OR funding. She is still fighting for ‘Dr’ Jane Barton’s prosecution 10 years after 90 bed blocking non terminally ill patients including her own mother were given morphine overdoses)

      – what an odd set of priorities some who work in the legal profession have.

  4. @ Mike- the gentleman’s daughter has just stated on Newsnight that the family are Atheists.
    Perhaps the family could all join/form a suicide cult, and bring a HR case under Article 9?
    Some solicitors could make even more money that way…

  5. It just so happens that on the One Show on BBC 1 last night they showed two people that were “locked in” but have made wonderful recoveries. One had a stroke TWO weeks after his daughter was born. He was encouraged to mimic his daughter as she developed, and can now speak and walk! The other was a lady that also had a stroke two years ago. She can now talk very well and also walk very well too. She was filmed walking on a beach with her children and throwing pebbles into the sea!

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