‘Do Not Resuscitate’ and the Right to Die – the Human Rights Roundup

Do-not-resuscitate-band-HRRWelcome back to the UK Human Rights Roundup, your regular game, set and match of human rights news and views. The full list of links can be found here. You can find previous roundups here. Links compiled by Adam Wagner, post by Celia Rooney.

In the News

The Right to Die

This week, in the cases of R (on the application of Nicklinson and another) v Ministry of Justice; R (on the application of AM) (AP) v The Director of Public Prosecutions [2014] UKSC 38, the Supreme Court rejected the appeal of campaigners who asserted a right to die under Article 8 of the Convention.

A majority of the Supreme Court (7:2) rejected the appeal of Paul Lamb and Jane Nicklinson, and allowed the Director of Public Prosecution’s appeal against the third claimant who sought to clarify the current prosecution guidance on assisted dying. Arguably, however, the main appeal wasn’t a total loss. Five of the Justices held that it was within the court’s ‘constitutional authority’ to declare UK law on the matter of assisted suicide incompatible with the Convention. Rosalind English has summarised the case for the UK Human Rights blog here – noting the significance of the judgements of the dissenting justices, which would have granted a declaration of incompatibility.

Dominic Casciani, writing for the BBC, has argued that, while the particular applicants in this case were unsuccessful, the Supreme Court has sent a clear message to Parliament that it has been ducking this issue for too long. In relation to the law on assisted suicide, he suggests that the Supreme Court has essentially told politicians to ‘sort it out, or we will’.

Mark Elliott has considered the constitutional significance on his blog, Public Law for Everyone, here. The Supreme Court had to decide whether or not it was precluded from questioning the position adopted by Parliament, which has twice confirmed an outright prohibition on assisted suicide. 3 members of the Court adopted an intermediate position that suggested that, while it was inappropriate to issue a declaration of incompatibility at present, the Court may be able to do so if Parliament fails to address the matter again. Elliott argues that the case is likely to become ‘a reference point within the enduring debate about the division of constitutional authority between the judicial and political organs of government’. 

‘Do Not Resuscitate’ and Article 8

In the recent case of R (Tracey) v Cambridge University Hospital and The Secretary of State for Health with the Resuscitation Council and Others intervening [2014] EWCA Civ 822, the Court of Appeal has upheld a challenge to the lawfulness of “Do Not Attempt Cardiopulmonary Resuscitation” (DNACPR) orders, holding that NHS Trusts are under a legal duty to consult with and inform patients if a DNACPR order is placed on their records. As such, doctors are now legally obliged to consult with patients and to inform them if they intend to place a ‘DNR’ notice on their medical records. The Court of Appeal found that there should be a presumption in favour of patient involvement in these issues. Rosalind English considers the case here

In Other News

  • Anya Proops, for 11KBW’s Panopticon Blog, has considered the significance of the case of Browning v IC and DBIS and particular issues that may arise when secrecy is asserted in freedom of information cases here.
  • Obiter J has considered the on-going significance of the Magna Carta, in anticipation of its 800th anniversary here. Adam Wagner has also considered the issue for the UK Human Rights Blog in this post.

In the Courts 

Supreme Court rejects right to die appeals under Article 8 of the Convention.

Supreme Court finds that old and minor convictions need not be disclosed – Government rules on spent convictions unlawful and contrary to Article 8 of the Convention.

The Court of Appeal declares that the failure of a hospital to consult a patient in their decision to insert a Do Not Attempt Cardiopulmonary Resuscitation Notice in her notes was unlawful and contrary to Article 8.

UK Human Rights Blog Posts 

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