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Should we have a right to die?

About The Author

Former Author (Assistant Editor)

Author is a King's College London Law graduate, currently working as a corporate paralegal for a firm based in South West England. Author is due to begin his BPTC at the University of Law in September 2015, having attained a scholarship from Middle Temple.

The protracted court process of the ‘right to die’ appeals will come to a conclusion soon when the Supreme Court hand down their judgment. Sadly, Tony Nicklinson, one of the main campaigners on the issue died in August 2012 after refusing food and starving himself. His family continued the case after his death and the Supreme Court also heard the case of Paul Lamb and a man known only as ‘Martin’. This article will provide a summary of the proceedings so far, and also give some comment on the possible outcomes for the parties involved.

Background

The three claimants in the case suffered from a condition known as ‘locked in’ syndrome which left them completely paralysed but still with full mental capabilities and no shortening of life. Tony Nicklinson was only able to communicate through a specially adapted computer that could use the small movement that remained in his eyes. As he was unable to move himself, he wanted a doctor to be able to issue him with a lethal dose of medication in order to bring about the shortening of his life. The current law of murder in England and Wales would be engaged if he did so as there are only two very limited defences for doctors who bring about premature death of one of their patients. The first is known as ‘double effect’ where the outcome of providing treatment would necessarily result in a shortening of life. This occurs most frequently for those suffering chronic pain that require dosages of morphine to be increased with the passing of time, sometimes to unsafe levels. This defence is clearly not available here as the doctor would not be providing ‘treatment’ in any meaningful sense. The second defence of necessity, relied upon by Mr Nicklinson, sought to argue that it was ‘necessary’ that his life should be ended in order to prevent his further suffering.

The other claimant, Martin, had a different claim concerning his right to die. Martin wished to travel to Dignitas in Switzerland, but his family had thus far refused or were reluctant to take him. He wished to receive help and transportation from nurses and doctors so that he could end his life, yet doctors refused to do so through fear of prosecution. The DPP guidelines on assisting suicide stated that family members would not be prosecuted in such circumstances, but professionals would not benefit from this exception.

High Court

(Full Judgement)

Mr Nicklinson applied for judicial review and was granted permission on two grounds. Toulson J, sitting in the Queen’s Bench Division, decided that the claim could proceed on two grounds. Firstly, on the argument that the defence of necessity could operate in the circumstances of the case or, secondly, that the current law on assisted suicide was in breach of Article 8 (Right to respect for private and family life) and accordingly a declaration of incompatibility should be made.

Toulson J said of the first declaration sought that he feared it would be ‘crossing the Rubicon’ between good medical practice and murder if he were to allow a doctor to administer a fatal injection. However, he appreciated that there was an arguable case on the harshness of the law in relation to allowing a doctor to withdraw life sustaining treatment but not being able to end the suffering of the claimants because they were not suffering from a terminal condition. He gave permission to seek judicial review for this declaration.

Toulson J also granted the availability to seek judicial review on the possible infringement of Article 8. He commented that although he had granted permission on the first ground of appeal, a civil court would probably be inclined to make a declaration of incompatibility under Sections 4 and 6 of the Human Rights Act rather than extending the rule of necessity. A declaration would be better suited because it would engage Parliament to debate any change in the law, which would be subject to democratic accountability.

‘Martin’ was granted permission for judicial review to challenge the DPP’s guidance on the operation of Section 2 of the Suicide Act 1861 which stated that family members would not be prosecuted for helping people travel to the Dignitas clinic in Switzerland.

The full hearing took place later that year and was presided over again by Toulson LJ. He refused to grant a declaration of any kind in favour of the claimants. In relation to the ECHR, the judge found that the current law on assisted suicide did breach their Article 8 rights based on the judgment in Pretty v UK but that it was a proportionate interference within the UK government’s margin of discretion. On the authority from the European Court of Human Rights (ECtHR), such as the ruling in Haas, governments are given a wide margin of discretion in setting the boundaries for the offence of murder. The most telling part of his judgment is found at paragraph 150:

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.

Court of Appeal

(Full Judgement)

The matter was appealed by both parties and subsequently joined to another case, which dealt with the same issues. The third case concerned Paul Lamb, who had suffered serious injuries in a car crash in 1999 and was left with ‘locked-in’ syndrome. Paul Lamb appealed on the same grounds as Tony Nicklinson; the Court of Appeal decided similarly to the High Court and the appeals were dismissed.

Counsel for the Appellants argued, firstly, that the common law must be developed and a defence of necessity extended to afford protection to doctors and nurses wishing to help someone to end their own life. Lord Dyson MR stated that this argument encountered many ‘insurmountable hurdles’. The first of which was that the common law would directly conflict with section 2(1) of the Suicide Act and would not provide a defence, as statute prevails over the common law. The judgment is resoundingly against the appellants on the common law issue, especially in light of the fact that as recently as 2009 Parliament decided that assisted suicide should remain unlawful when they passed the Coroner’s and Justice Act 2009. Moreover, a Bill proposed by Lord Joffe was also rejected in 2006, which attempted to legalise assisted suicide.

Secondly, and in relation to the ECHR, counsel for the appellant submitted that the High Court had failed to balance the relevant factors in determining whether there had been a ‘proportionate interference’, as is required by Article 8(2) of the ECHR. This was also dealt with strongly by the Court at Paragraph 74, drawing heavily on the speech by Lord Bingham in R (Pretty) v DPP in which he stated that there were “ample grounds to justify the existing law and the current application of it”.

However, the Court did find in Martin’s favour that the DPP guidelines on assisted suicide should be reviewed and clarified. At Paragraphs 115-148 of the judgment, the court examined closely the case of Purdy which led to the issue of the original DPP guidance. They found that although the DPP guidance did not constitute a changing in the law of the operation of s2(1) of the Suicide Act, it nevertheless was “law” and as such its operation must be sufficiently transparent and comprehensible. The Policy itself made clear that the guidance was merely a statement of factors taken into account and did not “in any way 'decriminalise' the offence of encouraging or assisting suicide. Nothing in this Policy can be taken to amount to an assurance that a person will be immune from prosecution". Counsel for Martin made a distinction between those who had the benefit of willing help from family and those who did not. The guidance was sufficiently transparent in the first class of case, but was not so for the second. The Court agreed and stated that although the DPP would not have to detail exactly how each factor would be taken into account, more clarity is required in the interests of justice and fairness.

The Supreme Court - What next?

The judgment of the Court of Appeal was resounding on the matters of law raised by Paul Lamb and Mrs Nicklinson, backed up heavily by authority from the House of Lords and the ECtHR. Despite this, Mrs Nicklinson and Paul Lamb were determined to succeed and subsequently appealed to the Supreme Court. The hearing was conducted on 16 December of last year and the judgment is expected in the coming weeks. The issue brought before the panel of nine Supreme Court justices was that the Court of Appeal had been wrong to find that there had been a “proportionate interference” with the claimants’ Article 8 rights. A counter-claim was also issued by the DPP, who claimed that the guidelines on assisting suicide are sufficiently clear and transparent, and that the guidelines should not be required to detail the balancing procedure that determines prosecution for murder.

As decided at first instance, this issue is obviously very controversial and there is definitely an arguable case in favour of changing the law, but the judiciary thus far have seemed increasingly reluctant to entertain the notion that they will change the law themselves. The matter is one of important public policy, and I believe it would be improper for the Supreme Court to extend the current defence of necessity under the common law. Parliament has considered the issue several times in recent decades and has decided that the current law should remain. It is not the role of the court to second guess the clear intention of Parliament.

There are many theoretical arguments that strongly support changing the law on assisted suicide in relation to people with a settled wish to die who see no alternative. However, the extreme regulatory regime that would be required to deal with the new law would undoubtedly fail to protect everyone, and as acknowledged by the Court of Appeal, it may create societal pressure on vulnerable people. The court expressed concern that “the elderly, lonely, sick or distressed” would feel pressure, whether consciously or subconsciously, to request an early death. Palliative care will offer little to people in Paul Lamb or Martin’s position and accordingly the Supreme Court may determine that the blanket ban on assisting suicide may be disproportionate but in my opinion this is unlikely. The ECtHR has ruled on the issue of blanket bans in relation to prisoner votes, and whole life orders and found them to be a disproportionate interference with Convention rights, but Article 8(2) does seem to be an insurmountable hurdle for a successful claim under Article 8 infringement. At the very least, this court procedure has enabled a wider discussion to develop that considers our treatment of the elderly and disabled. People like Paul Lamb deserve our respect, yet the vehicle for change should not be the judiciary, but rather our government and Parliament. Change will require a cultural shift in attitude, which has shown some signs of developing when one looks to Europe in nations such as Switzerland, but this is some way off for the UK.

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Tagged: Human Rights, Medical Law & Ethics

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