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The Tony Nicklinson Case – What Next for the Right to Die?

The Tony Nicklinson Case – What Next for the Right to Die?

There was another landmark recently in the ongoing moral, legal and ethical debate concerned with the ‘right’ to die. The judgment in the case of The Queen on the Application of Mrs Jane Nicklinson and Mr Paul Lamb v Ministry of Justice, Director of Public Prosecutions, Her Majesty’s Attorney General and CNK Alliance Limited (Care not killing) British Humanist Alliance, linked with the case of The Queen on the Application of AM v Direction of Public Prosecutions was handed down by the Court of Appeal on the last day of Trinity Term on Wednesday 31 July 2013.

There was another landmark recently in the ongoing moral, legal and ethical debate concerned with the ‘right’ to die.

Having lost his previous case in the High Court, Tony Nicklinson refused nutrition, foods and medical treatment and passed away as a result of pneumonia on 22 August 2012, less than a week after that judgment had been handed down. However, his wife was given the right to continue the case, and Mr Lamb was unusually added as a party to the appeal.

The media coverage of this judgment can be simply summarised. It was stated that whilst Mrs Nicklinson and Mr Lamb had ‘lost’ their appeal, the third appellant involved, known only as ‘Martin’ had ‘won’ his. This article will look at exactly what was decided in this judgment and the future of this difficult debate.

The cases are linked but do raise different issues. Whilst Mr Nicklinson would have needed, and Mr Lamb will need, another person to end their lives for them, ‘Martin’ is capable of ending his life, but will need assistance in order to do so, that is, he needs assistance to get to Dignitas in Switzerland, where he will then be able to end his own life.

The issues in the case then, were as follows:

  1. Whether there should be a common law defence of necessity to a charge of murder or assisted suicide where this comes in the form of euthanasia, provided that certain safeguards are met, that is that the court has confirmed in advance that the defence of necessity will arise on the facts of the individual case.  This is an argument submitted only by Mr Lamb, but one that would have been equally applicable to Mr Nicklinson.
  2. Whether, in certain cases, the legal prohibitions on providing assistance constitute a disproportionate interference with an Article 8 right.Counsel for Nicklinson and Lamb submitted that the Divisional Court below were wrong in concluding that this was a question for Parliament rather than for the courts, and they consequently asked that this question be remitted to the lower court for them to carry out a full proportionality test.Counsel for ‘Martin’, on the other hand, did not ask for the matter to be remitted to the lower court, but instead acknowledged that protection from infringement is afforded by the exercise of a discretion as to prosecution by the DPP. Accordingly, he does not ask for the question to be remitted, but instead submits that there would be a clear disproportionate interference in ‘Martin’s’ case if there were a prosecution following his death.
  3. Whether the current DPP guidelines on the exercise of the ‘public interest’ test in assisted suicide cases were ‘in accordance with the law’ as required by Article 8 of the ECHR. The basis of this was that ‘in accordance with the law’ encompasses certain requirements relating to clarity of that law, these were developed by the Strasbourg court in Sunday Times v UK (1979) 2 EHRR 245 where it is stated that:

…a norm cannot be regarded as a ‘law’ unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.

This was an issue only raised by ‘Martin’ who sought some clarification of the guidelines, whether that be in his favour or not.

The judgment

Defence of necessity

The court found that this was a ‘wholly unsustainable’ submission for four principle reasons:

The court found that this was a ‘wholly unsustainable’ submission for four principle reasons…

  • There are occasions when the rights of autonomy and dignity have to yield to other rights and interests, and this is one such occasion. The sanctity of life is a fundamental principle of common law, and cannot be overridden by these other two principles.
  • Whilst the law does not criminalise suicide, it does not provide an absolute right to it either. Therefore, if there is no right to kill yourself, there can be no right to allow others to assist you in doing so.
  • It is simply ‘not appropriate’ for the court to ‘fashion’ this defence in such a controversial area.
  • If there were to be a defence to Euthanasia there would have to be a defence to assisted suicide, but this would be quite simply impossible, because Parliament has already unequivocally criminalised assisted suicide.
Article 8

The principle thrust in relation to this submission was that the Strasbourg Court in Pretty v United Kingdom (2002) 35 EHRR 1 had demonstrated that there may be exceptional cases where the absolute ban on assisted suicide is disproportionate. The Court of Appeal however, disagreed with this submission, the Master of the Rolls and Elias LJ stating that:

In our judgment, a careful reading of the decision makes it plain that the court was not in paragraph 76 seeking to suggest that a blanket ban was disproportionate or that a prosecution may sometimes infringe Article 8 rights.

As this is an area within Parliament’s margin of appreciation, the Court of Appeal felt that they were bound by the decision in Pretty to conclude that the current prohibitions on assisted suicide and euthanasia were not a disproportionate interference with Article 8 rights.

Lord Judge made this even clearer in his separate judgment, stating that Pretty bound the courts, and that therefore any changes not in accordance with Pretty could only ever be made by parliament:

The short answer must be, and always has been, that the law relating to assisting suicide cannot be changed by judicial decision. The repeated mantra that, if the law is to be changed, it must be changed by Parliament, does not demonstrate judicial abnegation of our responsibilities, but rather highlights fundamental constitutional principles.

Amendment of Guidelines

‘The short answer must be, and always has been, that the law relating to assisting suicide cannot be changed by judicial decision.’

The principle body of this submission advanced by ‘Martin’ was that the DPP guidelines do not provide sufficient clarity, that whilst in ‘Class 1 cases’ (where the situation is perhaps what we consider the more typical one of a loving relative assisting the person concerned) the guidelines enable those concerned to have a sufficient idea of the consequences, in ‘Class 2 cases’ this is not the case. Class 2 cases are those where a medical professional or some other person paid to care for the person concerned, provides the assistance, but does so out of compassion even though they may be receiving remuneration for their services.

The Master of the Rolls and Elias LJ agreed with this submission, and stated that there was not sufficient clarity as a result of this. They therefore ordered that the DPP guidelines be redrafted to address this difficulty.

Lord Judge, however, did not agree with this conclusion. He felt that the DPP has an extremely difficult job to do in balancing the need to provide clarity without, as it were, stepping on Parliament’s toes, and that the current guidelines were perfectly sufficient given this uneasy balance. He also made known a concern that the discretion of the DPP ‘should not inadvertently be developed in such a way as to undermine this constitutional imperative’.

What happens next?

Jane Nicklinson has made it clear that she wishes to continue this fight, although her husband will no longer be affected, she said: ‘I saw the way that Tony suffered and I would hate to think of anyone suffering the way he did.’ It is therefore presumed that such an appeal will be forthcoming.

The DPP has also said that:

I think it would be sensible for the CPS, if possible, to have the benefit of the views of the supreme court before any amendments are made to the DPP’s Guidelines in this important and sensitive area of the law.

As the courts have now reaffirmed on more than one occasion though, parliament are the only ones who can make any real inroads on changing this area of the law. Given that it is not at the top of their list of priorities, it should not be doubted that people will continue to fight this through the courts until some change is made.

A Private Members’ Bill has been started in the House of Lords, Lord Falconer is behind this bill and it was given its first reading on 15 May 2013. It is yet to be scheduled for a second reading. The main thrust of this bill is that those who are terminally ill and unable to end their own lives should be allowed, if they can be proven be of sound mind and to have made a voluntary and settled decision, to terminate their lives. This is the fourth such attempt at altering the legislation in this area in the last 10 years, but the passage of this bill will remain of great interest to a great number of interested parties.

Amy Wills studied law at the University of Birmingham and has completed her BPTC at the College of Law, Birmingham. She is currently working as a County Court Advocate whilst seeking pupillage.

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