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

16 August 2012 by

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 comments


  1. Adrian Duffen says:

    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!

  2. Lofthouse says:

    @ 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…

  3. Mike says:

    @ Jenny Hayward- didnt know #Jesus had a Twitter account, or indeed existed.

  4. Tim says:

    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.”

    1. Lofthouse says:

      @ 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.

  5. In the Jesus story, he orchestrated a planned death.
    If #euthanasia is good enough for #Jesus then its good enough for mere mortals!

  6. Jenny Hughes says:

    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.

  7. Lofthouse says:

    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.

  8. Lofthouse says:

    “as his wife does not want to do anything which will hasten his death.”
    Why?

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oppressive treatment OPQ v BJM orchestra orthodox schools Osama Bin Laden Osborn v The Parole Board [2013] UKSC 61 ouster clause overseas aid Oxford University Palestinian Territories palliative care palliative sedation paramount consideration paramountcy principle parental responsibility order parental rights parenthood parents responsibility parking spaces parliament parliamentary expenses parliamentary expenses scandal Parliamentary sovereignty Parliament square parole parole board party funding passengers rights passing off passive smoking passport passport seizure pastor Terry Jones patent patents paternity Pathway Students patiets' rights Patrick Quinn murder Paul Chambers PCOs peace-keeping operations Pensions people for the ethical treatment of animals (Peta) performers' rights permanent injunction persecution persistent vegetative state personal data personal information Personal Injury personality rights Personal life perversity Pet Animals Act 1951 Peter and Hazelmary Bull Peter Gibson pet shops PF and EF v UK Philip Lawrence Phil Woolas phone hacking phone taps photos photovoltaics physical and mental disabilities physical restraint physician assisted death Pinnock Piracy PJS placement order planning planning human rights planning system planning time limits plantagenet plebgate pleural plaques POCA podcast points poison Poland Police police investigations police liability police misconduct police powers police surveillance policing Policy Exchange report political advertising political judges political persecution politicians for hire Politics Politics/Public Order pollution polonium poor reporting Pope Pope's visit Pope Benedict porsche 917 portal possession order possession proceedings post mortem Posts power of attorney PoW letters to ministers pre-nup pre-nuptial Pre-trial detention predator control pregnancy preliminary reference prerogative powers press Press Association press briefing press freedom Priest priests primary legislation Prince Andrew Prince Charles prince of wales princess caroline of monaco principle of subsidiarity prior restraint prison Prisoners prisoners rights prisoners voting prisoner vote prisoner votes prisoner voting prison numbers prison rules Prisons prison vote privacy privacy injunction privacy law through the front door private disputes Private life private nuisance private use procedural unfairness Procedure proceeds of crime Professional Discipline professional indemnity Professional life Property property rights proportionality prosecution Protection of Freedoms Act Protection of Freedoms Bill protective costs Protest protest camp protest rights Protocol 15 psychiatric hospitals psychology psychotherapy Public/Private public access publication public authorities public authority public bodies Public Bodies Bill public figure public funding public inquiries public inquiry public interest public interest environmental litigation public interest immunity public interest litigation publicity public law unfairness Public Order public powers public procurement Public Sector Equality Duty Public Services Ombudsman Putin putting the past behind quango quantum quarantine Queen's Speech queer in the 21st century R (on the application of) v Joint Committee of Primary Care Trusts & Anor [2012] EWCA Civ 472 R (on the application of) v Secretary of State for the Home Department & Ors [2011] EWCA Civ 895 R (on the application of) v The General Medical Council [2013] EWHC 2839 (Admin) R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) R (on the application of G) v The Governors of X School Rabone Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 Race race relations Rachel Corrie racial discrimination Racial equality radio radiotherapy Radmacher Raed Salah Mahajna Raed Saleh Ramsgate randomised controlled trial rape rape case raptors Ratcliffe 6 Ratcliffe on Soar Ratcliffe power station rating rationality rcs RCW v A Local Authority reasonableness reasons reasons challenges recent case law and news Recent posts reception conditions recognition of judgments recreational rights Redfearn v UK referendum reform refugee applications refugee crisis refugee status refusal of treatment Registrar of Births Deaths and Marriages registration regulatory rehabilitation of offenders Reith Lectures Re J (A Child: Disclosure) [2012] EWCA Civ 1204 relgious freedom Religion religion in the courts religious beliefs religious discrimination religious freedom religious prosecution remedies renewables subsidies rent repeal reporting restrictions representation reproductive rights reproductive technologies reproductive wrongs rescue rescuer's claim resettlement of offenders resource allocation respect for family life responsibility in tort restrictions on exports restrictions on liberty results 2010 resuscitation retrospective application of the Human Rights Act retrospective legislation retrospective penalty retrospectivity rev paul nicholson reynolds Reynolds defence Re [2012] EWCA Civ 1233 richard III Richard O'Dwyer right of appeal rightsifno RightsInfo rights of children Right to a fair hearing right to a fair trial right to a home right to a remedy right to artistic expression right to a student loan right to autonomy right to autonomy and privacy right to die right to dies right to die with dignity right to dignity right to education right to expression right to family life right to food right to free enjoyment of possessions right to information right to liberty right to life right to peaceful enjoyment of property Right to Privacy right to private and family life right to refuse treatment right to respect for private life right to silence right to strike right to swim right to truth right to vote Rihanna Rio Ferdinand riots ripa rise of fascism risk risk assessment rival supermarkets Roma Roman Catholic Roman Catholic Church roman catholic schools Romania Rooney's Gold roundup roundup ready Royal Brompton and Harefield NHS Foundation Trust royal dutch petroleum royal name Royal Oper House Royal Prerogative rule of law Rupert Jackson Rusal Russia russia and human rights Russian Federal Security Service Rutherford Ryanair s sadie frost Safari same-sex same sex parents same sex partnerships same sex relationship sanctions set aside sanctity of life Sandiford Sapiens Sarah Ferguson sark satire saudi arabia Savage (Respondent) v South Essex Partnership NHS Foundation Trust Saville Report schedule 7 schizophrenia school building school surveillance schrems science scientific atheism scientific research scientology Scoppola Scotland Scotland Act Scotland Act 1998 Scotland Bill Scottish Government Scottish Human Rights Commission scottish landlord and tenant Scottish Parliament SCOTUS sea fishing seals Seal v UK search engines search powers secondary legislation secondary smoking secrecy Secretary of State Secretary of State for the Home Department v AP secret courts secret criminal trial secret evidence secret justice Secret trials sectarianism secularism security security cameras security services security vetting Sedar Mohammed segregation Select Committee on AI self-defence self-incrimination seminar sentencing September 11 serco serious harm sermon Seroxat service outside jurisdiction set-off Sewel Convention sex abuse sex ban sex ban low IQ sex offender Sex offenders sex register sexual abuse Sexual Offences sexual orientation sexual orientation regulations SFO investigation sfo unlawfulness shaker aamer Shamima Begum sham marriage shared residence order Sharon Shoesmith shetland shipping shipwreck Shirley Chaplin shooting shoulder shrug should trees have rights SIAC sihkism Simon Singh sir alan ward Sir Nicholas Wall Sir Peter six months rule slander slaughterhouses slavery smacking small claims court small solar Smith Smith & Ors v The Ministry of Defence [2012] EWCA Civ 1365 smog smoking ban Snyder v Phelps social and economic rights social benefits social housing socialite social media social security law social welfare social workers Solicitorsfromhell website solitary confinement soma somali pirates sources South Africa south african constitution sovereignty Sovereignty clause soviet union soybean Spanish properties spare room subsidy special advocate special advocates species specific performance spending cuts spielmann squatters Standing standing rules starvation state immunity statelessness statute statutory power Statutory purpose stay of execution stem cell research stem cells stem cell therapy Stephen Gough stephen sedley stepping hill hospital Sterilisation steve macqueen Steven Neary stobart-law stop and search stop powers Stormont Assembly storms Strasborug Strasbourg Strasbourg Court strasbourg damages pirates strasbourg law Strasbourg terminology strategic environmental assessment strike strike out Strikes student loans sturgeon subsidies Sugar v BBC suicide suicide act 1961 super injunction super injunctions supermax prisons superstition Supreme Court Supreme Court Live Supreme Court of Canada Supreme Court Scotland surgery surrogacy surrogacy arrangement surveillance swine flu Syria systemic violence Take That tallinn tariff Taser Tax tax avoidance tax discrimination tchenguiz technology Telegraph telephone preference service television justice tenancy tent city termination termination of pregnancy terror asset freezing Terrorism terrorism act terrorism act 2000 terrorism legislation terrorism prosecution terrorist finance terrorist threat terry pratchett Tesla testamentary dispositions The Bike Project the Catholic church The Corner House theism The Law in These Parts therapy Theresa May the right to privacy The Stig The Sun third countries third party appeals three way case time limits time limits in human rights Tobacco tobacco cartels Top Gear tort Torture torture inquiry totally without merit TPIM TPP tracking trade trade secrets trades unions trade union congress Trade Unions transexual transsexual transsexuals travel travellers travel restrictions treason treatment treaty treaty accession trial by jury trolling TTIP TTM v London Borough of Hackney & Ors Tugendhat tumour Turkey tweeting in court Twitter twitter in court Twitter Joke Trial UK UK citizenship uk constitution UK election UK Human Rights Blog UK Human Rights Roundup UKIP UK Jewish Film Festival ukraine UK Supreme Court UK Uncut ultra orthodox jews ultra vires UN unable to vote unacceptable behaviour policy unaccompanied minors unborn child UN Convention on the Rights of the Child unelected judges unemployment unfair consultation unfair dismissal unfairness at hearing Unison Unite United Against Fascism Group United Kingdom United Nations United States United States v Windsor universal declaration of human rights universal jurisdiction Universal Periodic Review University University Fees university of east anglia University of Southampton unjust and oppressive unlawful arrest unlawful detention unpaid work schemes UN Resolution unsolicited calls UPR US aviation US Constitution use as of right US Supreme Court vaccination Valkyries variants veganism vehicle breakdown vetting and barring vicarious liability victim victim status Victoria Climbie victorian charter Vienna airport vigilantism villagisation vinton cerf violence violist visa scheme vivisection voluntary euthanasia Volunteers voter compensation voters compensation voting voting compensation vulnerable Wagner Wakefield Wales War war correspondents ward of court War Horse water utilities Watts Wayne Rooney Websites welfare of child welfare of children welfare of the child welfare state welsh bill western sahara whaling What would happen if the UK withdrew from the European Court of Human Rights whimbrel whisky Whistleblowing WHO who is JIH whole gene sequencing whole life orders whorship Wikileaked cable Wikileaks wiklleaks Wild Law wildlife Wildlife and Countryside Act will William Hague William Marbury wills wind farms wind turbine Winterbourne View witchcraft withdrawal of treatment wolves women's rights Woolas worboys Workers working time directive wrongful birth wrongful conception wrongful life WTO wuhan X AND OTHERS v. AUSTRIA - 19010/07 - HEJUD [2013] ECHR 148 X Factor XX v Secretary of State for the Home Department [2012] EWCA Civ 742 X Y and Z v UK Yemshaw Yildirim v Turkey Your freedom website YouTube yukos Yuval Noah Hariri Zakir Naik Zanu-PF Zero Hours Contracts ZH (Tanzania) v Secretary of State for the Home Department Zimbabwe Zimbabwe farm invasions ZN (Afghanistan) (FC) and others ZZ [2015] CSIH 29 [2015] CSOH 168 £750

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