More bad news in the fight for a right to die

22 July 2015 by

281851582_1115426167001_110818righttodie-5081250R (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.


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.


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.


Sign up to free human rights updates by email, Facebook, Twitter or RSS

Related posts:


  1. Jeremy says:

    Ellen – there is plenty of protection for people who don’t want to die. Those of us who may want assistance to die in the future are not protected.

    1. Ellen says:

      there isn’t – its all ‘after the event’ .

  2. Ellen says:

    ..and we note that the GMC are effectively unable to strike anyone off , due to the fact that Drs can ‘voluntarily erase ‘ themselves from the register the night before the formal hearing , which leaves them free to practice medicine anywhere else in the world, or even to work in psychiatry, judging people as ‘competent’ when their beneficiaries want to take them to Mr Brewer

  3. Ellen says:

    ”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. ”

    Do you know, if you are elderly or disabled, some of the Drs working at present withdraw food under the pretence its a ‘choking risk’…don’t notice any great cavalry charges from the HR profession over that .

  4. Ellen says:

    Dont you think lawyers would be better fighting for his human right to live in slightly more amenable surroundings than those shown in the photograph above?
    Anyone would feel depressed enough to end it all in such a stimulating environment as that!

  5. Ellen says:

    Fantastic news! Will relieve every disabled person and NHS medical practitioner in the UK!

  6. […]  There is a longer analysis on UKHRB by Isabel McArdle: see More bad news in the fight for a right to die […]

  7. John Allman says:

    At the beginning of April last year, the day of the relevant EU Directive, I published the following analysis of the conflict between the EU right to die and the ECHR right to life (Article 2):

    The right to die -v- the right to life

Comments are closed.

Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals Anne Sacoolas anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board care homes Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus coronavirus act 2020 costs costs budgets Court of Protection covid crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy diplomatic relations disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Facial Recognition Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control hague convention Harry Dunn Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges nuisance Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy procurement Professional Discipline Property proportionality prosecutions prostituton Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation refugee rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania round-up Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence shamima begum Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance sweatshops Syria Tax technology Terrorism The Round Up tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Weekly Round-up Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: