Case of the week: Health
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R (on the application of Nicklinson) v Ministry of Justice. Interested Parties: Director Of Public Prosecutions; Jane Nicklinson. The Queen on the application of AM v (1) Director of Public Prosecutions; (2) the SRA; (3) the General Medical Council. Interested Party: an NHS Primary Care Trust. Interveners: The Attorney General; CNK Alliance Ltd (Care Not Killing).  EWHC 2381 (Admin). Macur J; Royce J; Toulson LJ. 16 August 2012
It was for Parliament to decide whether to change the law on voluntary euthanasia and the court could not alter the common law to create a defence to murder by way of necessity in the case of voluntary euthanasia. As the House of Lords and the European Court of Human Rights had ruled that a blanket ban on assisted suicide was not incompatible with the European Convention on Human Rights art.8 the same had to apply to voluntary euthanasia.
The claimants applied for judicial review and sought declarations relating to issues of assisted suicide and voluntary euthanasia. Both suffered from catastrophic physical disabilities but their mental processes were unimpaired.
AM would be capable of physically assisted suicide, but his wife was unwilling to assist him. Nicklinson’s condition meant he was unable to commit assisted suicide and the only way he could end his life was by voluntary euthanasia.
Nicklinson contended that the common law should recognise that voluntary euthanasia could provide a defence to murder by way of the defence of necessity. He submitted that autonomy and dignity, humanity and justice required that he should be permitted to end his life and he had the right to do so under the European Convention on Human Rights art.8.
AM contended that the DPP’ s published policy, identifying facts and circumstances which the Director of Public Prosecutions (DPP) would take into account when deciding whether to consent to a prosecution under the Suicide Act 1961 s.2(1), should be clarified so that those who might be willing to assist him to commit suicide in Switzerland would know whether they were likely to face prosecution in England. Alternatively, A M contended that s.2 of the 1961 Act was incompatible with art.8.
For reasons of competence, constitutionality and control of the consequences it was for Parliament to decide whether to change the law on euthanasia. Whilst the court could adapt and develop the principles of the common law incrementally in order to keep up with the requirements of justice in a changing society, major changes that involved matters of controversial social policy were for Parliament.
A decision to alter the common law so as to create a defence to murder in the case of voluntary euthanasia would introduce a major change in an area where there were strongly held conflicting views, where Parliament had rejected attempts to introduce such a change and where the result would create uncertainty. Parliament would not legalise any form of euthanasia without a surrounding framework regarding end of life care and procedural safeguards. It would be impossible for a court to introduce or monitor any such regime. Accordingly, it would be wrong to depart from the long established position that voluntary euthanasia was murder.
The only general principles expounded by the European Court of Human Rights were that an individual’s right to decide how and when to end his life was an aspect of art.8 and that the state had a wide margin of appreciation in that area. The law maker in respect of euthanasia should be Parliament.
It would be wrong to conclude that art.8 required voluntary euthanasia to afford a possible defence to murder.
It was clear that the DPP was not seeking to identify types of cases in which he would adopt a policy of non-prosecution based on a consideration of the rights of the victim as that would introduce a de facto form of justifiable homicide. He took the view that any such exercise should be for Parliament and that whilst Parliament maintained a blanket ban on assisted suicide he should not adopt a policy that undermined the law. However, he recognised that there would be cases in which the public interest did not require prosecution.
The policy was clear; a person who in the course of his profession agreed to assist another with the intention of encouraging or assisting that person to commit suicide would face real risk of prosecution.The issue of compatibility of s.2 with art.8 had been determined at the highest level and it was not open to the instant court to consider the matter afresh.
Paul Bowen QC, Doughty Street Chambers
Saimo Chahal, Bindmans
For the defendant Ministry of Justice
David Perry QC, 6 King’s Bench Walk
James Strachan, 4-5 Gray’s Inn Square
The Treasury Solicitor
For the claimant AM
Philip Havers QC, One Office Crown Row
Adam Sandell, Matrix Chambers
Richard Stein, Leigh Day & Co
For the defendant Director of Public Prosecutions
John McGuinness QC, 9-12 Bell Yard
For the defendant the Solicitors Regulation Authority
Timothy Dutton QC, Fountain Court
Marianne Butler, Fountain Court
Iain Miller, Bevan Brittan
For the defendant General Medical Council
Robert Englehart QC, Blackstone Chambers
Andrew Scott, Blackstone Chambers
For the interested party the Attorney General
Jonathan Swift QC,11KBW
Joanne Clement, 11KBW
The Treasury Solicitor
For the interveners CNK Alliance
Charles Foster, Outer Temple
Benjamin Bradley, Outer Temple
David Foster, Barlow Robbins
Case of week commentary
Professor Aileen McColgan
The dilemma faced by the Court of Appeal in the Nicklinson and AM joined cases may well have been incapable of judicial resolution. On the one hand the court was faced with an almost unanswerable claim that a person who, fully in possession of his faculties, finds life intolerable but is practically incapable of bringing an end to it other than by refusing sustenance, ought to be able to call on the assistance of willing others to achieve a better exit.
On the other, the remedy sought would have entailed the recognition of a defence of necessity to murder, albeit one conditional on a ex ante declaration by a judge satisfied, inter alia, that the person whose life was to be ended had “made a voluntary, clear, settled and informed decision to end” a life marked by inescapable and unbearable suffering.
It was perhaps inevitable that great sympathy would be expressed, the conclusion reached that this was a matter for Parliament rather than the courts and a remedy declined. It is almost certain that Parliament will be unwilling or unable to square this particular circle, at least in the forseeable future.
Professor Aileen McColgan