More bad news in the fight for a right to die

22 July 2015 by Isabel McArdle

R (o.t.a A.M) v. General Medical Council [2015] EWHC 2096 (Admin) Read the full judgment here

The High Court has rejected the argument made by “Martin”, a man with locked-in syndrome who is profoundly disabled and wishes to end his own life. This comes shortly after Strasbourg’s rejection of the Nicklinson and Lamb cases, for which see my post here.

Philip Havers QC, of 1COR, acted for Martin, and has played no part in the writing of this post. 

Martin would like to travel to a Swiss clinic to end his life, but wishes to obtain a medical report, from a doctor, to assist. He would also like to take medical advice on methods of suicide.

There is no dispute that a doctor advising him in this way will likely break the law, by committing the crime of assisting suicide. However, Martin argued that in practice, the Director of Public Prosecutions (DPP) has relaxed guidelines on when it is in the public interest to bring a prosecution against a doctor in these circumstances.

However, the General Medical Council (GMC), a body which regulates doctors and has the power to end their medical careers by striking them off its register, has issued guidance which suggests that a doctor assisting Martin in the way he seeks would risk professional disciplinary action, and may be struck off the register.

Martin challenged the guidance of the GMC in two ways.

First, he argued that his ECHR Article 8 (the right to respect for private and family life) and 10 (freedom of expression) rights are breached by the GMC’s position. The guidance subject to challenge includes:

Where patients raise the issue of assisting suicide, or ask for information that might encourage or assist them in ending their lives, doctors should be prepared to listen and to discuss the reasons for the patient’s request but they must not actively encourage or assist the patient as this would be a contravention of the law. Any advice or information they give in response should be limited to: an explanation that it is a criminal offence for anyone to encourage or assist a person to commit or attempt suicide, and the provision of objective advice about the lawful clinical options (such as sedation and other palliative care) which would be available if a patient were to reach a settled decision to kill himself. For the avoidance of doubt, this would not prevent a doctor from agreeing in advance to palliate the pain and discomfort involved for a patient in this position should the need arise for such symptom management.

And

Doctors should continue to care for their patients and must be respectful and compassionate. We recognise that doctors will face challenges in ensuring that patients do not feel abandoned while ensuring that the advice or information that they provide does not encourage or assist suicide. Doctors are not required to provide treatments that they consider will not be of overall benefit to the patient, or which will harm the patient. Respect for a patient’s autonomy cannot justify illegal action.

The Court accepted that Article 8 was engaged, but the real question was whether interference with that right was justified.

Martin argued that it was not justified, because “it fails to give a doctor the same sense of security when giving advice or writing a report as the DPP’s policy” [39].

The Court found that it could not be said that the interference was not justified:

40.…the decision in Nicklinson is that section 2, even read alone, is compatible with article 8. If a blanket ban on assisted suicide does not infringe article 8, it must follow that any step taken to discourage a doctor from assisting a suicide cannot infringe the article either. The DPP could, as a matter of Convention law, have adopted a policy of generally prosecuting assisted suicides if the evidence was sufficient to justify it, without placing the UK in breach of article 8. The fact that the DPP has recently adopted (or at least clarified) what Martin might conceive to be a laxer and more compassionate policy does not affect the application of article 8 at all. The GMC is not obliged to fall into line in order for its guidance to remain article 8 compliant.

41. If the position were that section 2 would in exceptional cases infringe article 8 save for the fact that the discretion conferred upon the DPP is capable of being so exercised as to render it compatible, there would be room for the argument now being advanced. It could be said that the GMC guidance undermines the mechanism which secures compliance with article 8. It was indeed argued by Martin in the earlier case that this was the proper reading of the decision of Pretty in the Strasbourg Court, that Martin was an exceptional case, and that accordingly the DPP had to indicate in his policy that it was unlikely that a doctor would be prosecuted for assisting him in the ways he sought.

However, Elias LJ pointed out that both the Court of Appeal and the Supreme Court rejected this submission, finding that section 2 is compatible with article 8 even as a blanket ban. Its conformity with article 8 was dependent neither on the existence of the prosecutorial discretion nor the way that it is exercised. Indeed, Lord Kerr (with Lord Hughes’ express agreement) had considered  that under the constitution it would not be open to the executive, in the shape of the DPP, to redeem section 2 if it were otherwise incompatible with article 8.

Hence Elias LJ concluded that

it cannot possibly be contrary to article 8 for the GMC to take as its starting point the principle that a doctor has a duty to obey the law, and to structure its guidance accordingly. The reason why the section 2 interference with article 8 is justified, which the Supreme Court held was the protection of vulnerable patients, equally justifies the GMC’s guidance which seeks to reflect and give effect to that principle. The argument Martin advanced in the earlier proceedings with respect to the DPP’s policy was similar, namely that it should be modified to ensure compliance with article 8. Lord Hughes gave it short shrift (para. 288): “If section 2(1) is not disproportionate unless and until Parliament says that it is, then for the same reason the Director cannot be required to “modify” her policy…””

The Article 10 challenge did not raise materially different points to the Article 8 challenge so was dismissed for the same reasons.

Secondly, Martin made a traditional Wednesbury challenge (in short, that the decision to issue and maintain the guidance was so unreasonable or irrational, that no reasonable decision maker could reach it), arguing(at [46])  that it was irrational for the GMC not to amend its policy so as to bring it in line with that adopted by the DPP. The DPP is the public officer responsible for enforcing the law relating to assisted suicide;  if she considers that the public interest is properly protected by giving a strong indication to doctors who act out of compassion on a one-off situation that they will not be prosecuted, it is Wednesbury irrational for the GMC to take a different view as to what public policy requires.

This argument too was rejected, for reasons including that the GMC, as a specialist regulatory body, was better placed than the Court to assess what was in the public interest with regard to medical discipline, and there was no constitutional reason why the GMC guidance must accord with DPP guidance, given the very different roles of the two bodies.

Conclusion

This latest challenge to the legal barriers to assisted dying has not resulted in a change in professional regulatory guidance, but it has helped to keep end of life issues in the public eye. Watch this space for more assisted dying in the news, with another Bill in the pipeline, scheduled for a second reading in September 2015 – and watch its progress here.

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Related posts:

• Strasbourg rejects right to die cases
• Withdrawal of nutrition and hydration would not offend right to life – Strasbourg Court
• Supreme Court rejects right to die appeals
• British Columbia Supreme Court grasps the nettle in right to die case
• Locked-in sufferer’s challenge to ban on voluntary euthanasia fails in the High Court
• ‘No precedent’? Then set one! The Nicklinson right to die case
• Toppled, choked and locked in: where are human rights when you need them?
• Are lawyers in right to die cases breaking the law?
• What is a life worth living? Further analysis of “M”
• States Not Obliged to Assist Persons Wishing to Commit Suicide – Antoine Buyse
• GMC to announce policy of striking off doctors who prolong the lives of terminally ill patients against their wishes [updated]
• Previous posts on the Pretty and Purdy cases