Dignity in dying Supreme Court ruling can give clarity

Supreme Court hears: DPP policy on assisted suicide isolates patients and has “chilling effect” on doctors

In 2014 the Supreme Court will deliver a landmark ruling in two cases that I hope will bring much-needed clarity to the law on assisted suicide in England and Wales. ‘AM’ and Nicklinson & Lamb were heard together by a panel of nine Supreme Court justices in the court’s final sitting of 2013.  Baker & McKenzie acted pro bono for Dignity and Choice In Dying in its intervention in ‘AM’; a case raising important public interest issues about the level of clarity required in the DPP’s policy on assisted suicide.

The oral submissions in AM commenced after a day and a half of submissions in the now well-known case of Nicklinson & Lamb. In that case, Jane Nicklinson (whose husband, Tony, had locked-in syndrome and died in August 2012) and Paul Lamb (who is paralysed save for limited use of his right hand) argued that the prohibition on assisted suicide contained in the Suicide Act 1961 is incompatible with the Article 8 right to respect for private and family life.

Nicklinson & Lamb challenged the underlying statute. AM was concerned with the circumstances in which the DPP would prosecute under that statute.

AM (also referred to as ‘Martin’) is unable to speak and virtually unable to move. He finds his life intolerable and has a settled wish to die. Because of his disability, he is unable to do so without assistance and is wholly reliant on his professional carers. Martin argues that:

  1. the DPP’s Policy for Prosecutors in respect of Cases of Encouraging or Assisting Suicide is an unjustified interference with his Article 8 right under the ECHR because the consequences of the policy for the people whose assistance Martin seeks are insufficiently certain; and
  2. the policy disproportionately interferes with his Article 8 right because it discourages the assistance Martin seeks.

The first argument was successful in the Court of Appeal but was appealed by the DPP to the Supreme Court. The second argument was unsuccessful at the Court of Appeal and was cross-appealed by Martin.

In her appeal, the DPP argued that the policy is sufficiently clear. Counsel for the DPP said she could never guarantee that certain persons would not be prosecuted for assisting or encouraging someone to commit suicide. To do so would, allegedly, cross “the line of constitutional propriety”. 

Martin’s counsel responded that the policy is not clear enough for so-called “class two” helpers: professionals who (unlike “class 1” helpers) do not share an emotional connection with the person wishing to die. Those class two helpers (eg healthcare professionals) are unable to foresee with any reasonable certainty whether they are at risk of prosecution.

Lord Pannick QC, who represented Dignity in its intervention on this point, emphasised that the context required a very high degree of legal certainty: the DPP should be required to issue clearer guidance to avoid what the lower court described as the policy’s “chilling” effect on doctors. Unsure of what they can and cannot say or do, doctors may take an overly cautious approach that leaves patients isolated. Nowhere is the requirement for legal certainty more important than where personal autonomy and human dignity are concerned.

Both ‘AM’ and Nicklinson & Lamb raise a number of important public interest issues on the law of assisted suicide and we’re now eagerly awaiting the Supreme Court’s judgment. I hope that it will establish a clear right for ‘AM’, Nicklinson and Lamb to personal autonomy in making their own life decisions, with the help of healthcare professionals if they so wish.

Harry Small, partner, Baker & McKenzie