Conway, R (on the application of) v Secretary of State for Justice  EWHC 640 – read judgment
Noel Douglas Conway, 67, is a victim of motor neurone disease. He has just been refused permission to seek judicial review of the criminalisation of physician-assisted suicide under the Suicide Act 1961. The High Court considered that Parliament has recently examined the issue following the Supreme Court decision in the 2014 Nicklinson case , and two out of three judges concluded that it would be “institutionally inappropriate” for a court to declare that s.2(1) of the Suicide Act was incompatible with the right to privacy and autonomy under Article 8 of the ECHR. Charles J dissented (and those who are interested in his opinion might want to look at his ruling last year in the case of a minimally conscious patient).
Background facts and law
The claimant, whose condition worsens by the day, wishes to enlist the assistance of a medical professional or professionals to bring about his peaceful and dignified death. But Section 2(1) of the Suicide Act criminalises those who provide such assistance. The question of whether someone would be prosecuted for assisting suicide is governed by a detailed policy promulgated by the Director of Public Prosecutions. That policy was formulated in 2010 in response to the decision in R. (on the application of Purdy) v DPP  UKHL 45, and was refined in 2014 following the decision of the Supreme Court in Nicklinson. A similar declaration of incompatibility had been sought in Nicklinson, but by a majority of seven to two the court refused to make the declaration on the grounds that it was not “institutionally appropriate” to do so. The court, however, encouraged Parliament to reconsider the issue of assisted dying.
In the instant case, the court had to determine whether the circumstances which led the Supreme Court to refuse to grant the declaration in Nicklinson had changed so that a different outcome was now possible.
The Court concluded – with an interesting dissent from Charles J – that this was a matter for parliament. A declaration of incompatibility would be institutionally inappropriate in the light of the recent Parliamentary consideration of Nicklinson. The claim was unarguable and permission was refused.
Ross v Lord Advocate  CSIH 12, 19th February 2016 – read judgment
The Inner House of the Court of Session has rejected a reclaiming motion (appeal) from a decision of the Outer House in which it was held that the Lord Advocate’s refusal to publish specific guidance on the circumstances in which individuals would be prosecuted for assisted suicide did not violate Article 8 of the European Convention on Human Rights (ECHR).
Factual and Legal Background
The petitioner, Gordon Ross, suffers from Parkinson’s disease. He anticipates that there will come a time when he will not wish to continue living but, because of his physical state, he would require assistance to end his own life. Mr Ross was apprehensive that anyone who assisted him would be liable to criminal prosecution and therefore sought clarification from the Lord Advocate (the head of the prosecution service in Scotland) as to the factors that would be taken into account in deciding whether or not to prosecute. Continue reading
Ross, Re Judicial Review,  CSOH 123 – read judgment
The Outer of House of the Court of Session has refused an individual’s request for clarification of the prosecution policy relating to assisted suicide in Scotland.
The Petitioner, Mr Ross, suffers from Parkinson’s disease and currently resides in a care home due to his dependence on others. Although not wishing to currently end his life, Mr Ross anticipates that in the future he will wish to do so and will require assistance.
In July 2014, the Petitioner requested from the Lord Advocate – the head of the prosecution service in Scotland – guidance on the prosecution of individuals who assist others to commit suicide. The Lord Advocate replied that such cases would be referred to the Procurator Fiscal – the Scottish public prosecutor – and dealt with under the law of homicide. The Lord Advocate further stated that decisions regarding whether prosecution would be in the public interest would be taken in line with the published Crown Office and Procurator Fiscal Service Prosecution Code (“COPFS Code”). However, he admitted that it would often be in the public interest to prosecute such serious crimes as homicide. Continue reading
The multiple sclerosis sufferer Debbie Purdy died in the Marie Curie hospice in Bradford on December 23 2014. Having been denied her right to travel to Dignitas in Switzerland, which would have exposed her husband to the risk of prosecution under the 1961 Suicide Act, she took the only option available to her – refusing food. Death by starvation is not pleasant. The relevant Wikipedia entry describes some of the symptoms:
The body breaks down its own muscles and other tissues in order to keep vital systems such as the nervous system and the heart muscle functioning.
… Early symptoms include impulsivity, irritability, hyperactivity, and other symptoms. Atrophy (wasting away) of the stomach weakens the perception of hunger, since the perception is controlled by the percentage of the stomach that is empty. Victims of starvation are often too weak to sense thirst, and therefore become dehydrated.
All movements become painful due to muscle atrophy and dry, cracked skin that is caused by severe dehydration. With a weakened body, diseases are commonplace. Fungi, for example, often grow under the esophagus, making swallowing painful.
I apologise for introducing such a gloomy subject into the dying embers of 2014, but it is too important to pass by.
R (on the application of Nicklinson and another) (Appellants) v Ministry of Justice (Respondent); R (on the application of AM) (AP) (Respondent) v The Director of Public Prosecutions (Appellant)  UKSC 38 – read judgment
On appeal from  EWCA Civ 961
The Supreme Court has declined to uphold a right to die a dignified death. However, a glimmer is is to be found in this judgment in that two out of the seven justices who concluded that it was for the United Kingdom to decide whether the current law on assisted suicide was incompatible with the right to privacy and dignity under Article 8, would have granted such a declaration in these proceedings., particularly where the means of death was one that could have been autonomously operated by the disabled appellant, leaving no doubt as to the voluntary and rational nature of his decision.
But the majority concluded that this was a matter for Parliament, not for the Courts.
The following summary is from the Supreme Court’s Press Summary
These appeals arise from tragic facts and raise difficult and significant issues, namely whether the present state of the law of England and Wales relating to assisting suicide infringes the European Convention on Human Rights (“the Convention”), and whether the code published by the Director of Public Prosecutions (“the DPP”) relating to prosecutions of those who are alleged to have assisted suicide is lawful. Continue reading
GROSS v. SWITZERLAND – 67810/10 – Chamber Judgment  ECHR 429 – Read judgment / press summary
The European Court of Human Rights has ruled that Swiss guidelines for doctors prescribing lethal drugs were too unclear and therefore breached article 8 ECHR, the right to private and family life. Ms Gross sought a prescription for a lethal drug to end her own life. She has no critical illness, but is elderly and feels that her quality of life is so low that she would like to commit suicide. The Swiss medical authorities refused to provide her with the prescription.
Assisted dying and the right to die have been firmly back in the spotlight this week, with the cases of Lamb and “Martin” going to the English and Wales Court of Appeal. Mr Lamb is taking up the point made by Tony Nicklinson in the High Court, before his death, that doctors should have a defence of necessity to murder charges in cases of assisted suicide. Mr Nicklinson’s widow, Jane, is continuing his fight too. The cases also challenge the current guidelines on when prosecution should be brought for assisting suicide. You can read more about the background to the right to die caselaw here.
Wednesday’s debate on current key topics in the Court of Protection was a hard-hitting discussion on matters which elicit strong views, such as voluntary euthanasia, assisted suicide, the role of “dignity” and “sanctity of life”, and whether the latter two principles can ever be reconciled.
The fact that these are not essentially legal issues was underscored by the inclusion of ethics philosopher on the interventionist panel, Professor Anthony Grayling, who fielded the questions put to him alongside Philip Havers QC and Leigh Day solicitor Richard Stein. A video of the event will shortly be available on the 1 Crown Office Row website so I shall try to refrain from any spoilers, but here is a brief trailer to whet the appetite for a full recapitulation.
The evening started with a consideration of the Nicklinson and Martin cases, on voluntary euthanasia and assisted suicide respectively. There were a number of questions put to the panel which essentially rolled up into this:
Should voluntary euthanasia be a possible defence to murder, or can we justify action with a primary purpose of killing a person on the grounds of preventing that person’s harm or suffering?
The panel was broadly in agreement that it should. Richard Stein observed that the argument that there can never be adequate safeguards to protect the vulnerable is being used as a “smokescreen”, and, equally, the notion that disabled people cannot exercise their free will to die because it reduces the value of disabled lives is a “hugely patronising” one. Continue reading