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Public law and Regulation

Case reports and guidance on public law and professional regulation issues

20 SEP 2012

R (on the application of Nicklinson) v Ministry Of Justice; R (on the application of AM) v Director of Public Prosecutions and Others [2012] EWHC 2381 (Admin) (2012) PLLR 120

Healthcare - Article 8 - Right to die - Assisted Suicide

The Court held that it was for Parliament, and not the Courts, to change policies in relation to assisted suicide and the prosecution of those providing assistance to those committing suicide.

16 August 2012

Administrative Court

Toulson LJ, Royce J and Macur J

(1)        This claim was brought by two Claimants: Tony Nicklinson and a second man who was referred to only as Martin. Each of the Claimants suffer from catastrophic physical disabilities and ‘locked in syndrome'. Neither Claimant is capable of ending their own life due to their condition, but each wishes to die without further suffering.

(2)        Martin primarily sought relief in the form of an order indicating whether persons who assisted him to commit suicide at the Swiss Dignitas clinic would face prosecution in England. He also sought a declaration that a doctor or solicitor who assisted him would not be exposed to professional disciplinary proceedings.

(3)        Mr Nicklinson sought a declaration that the defence of necessity would be available as a defence to a charge of murder in the case of a voluntary active euthanasia or in relation to a charge of assisted suicide.

(4)        A further declaration was sought that the law relating to murder and/or assisted suicide constituted a breach to Mr Nicklinson's Article 8 rights under the European Convention on Human Rights (‘ECHR') to respect for a private life, and was contrary to sections 1 and 6 of the Human Rights Act 1998.

(5)        The Court identified the relevant issues as follows:

‘1.        Is voluntary euthanasia a possible defence to murder?

2.         Is the DPP under a legal duty to provide further clarification of his policy?

3.         Alternatively, is section 2 of the Suicide Act incompatible with Article 8 in obstructing Martin or Tony from exercising a right in their circumstances to receive assistance to commit suicide?

4.         Are the General Medical Council (‘GMC') and the Solicitors Regulation Authority (‘SRA') under a legal duty to clarify their positions?

5.         Is the mandatory life sentence for murder incompatible with the Convention in a case of genuine voluntary euthanasia?'

(6)        HELD: In relation to the issue of whether voluntary euthanasia provided a defence to a charge of murder, the Court found that determination of an individual case, such as this, would create a precedent, despite the Court not being in a position to determine the broader issues involved. The Court stated that major changes, particularly involving matters of controversial social policy, were for Parliament, not the Courts. It was further noted that the Court could not introduce or monitor any regime introduced.

(7)        For these reasons, the Court determined that it would be wrong for it to depart from the long established position that voluntary euthanasia is murder.

(8)        In response to the argument that Article 8 ECHR should give Mr Nicklinson the right to end his life as his condition deprives him of dignity and liberty, the Court determined that the European Court on Human Rights (ECtHR) had made clear that the right of an individual to decide how and when to end their life fell within the wide margin of appreciation granted in relation to Article 8.

(9)        The Court stated that the ban on voluntary euthanasia was not incompatible with Article 8, as both the House of Lords and the ECtHR had determined that an outright ban on assisted suicide did not constitute a breach of this article.

(10)     The Court held that the DPP had taken the correct approach in determining that the issuance of any policy should be for Parliament, and he would not adopt a policy that might appear to undermine the law. The Court found that it would be wrong to require the DPP to formulate his policy to meet the foreseeability test for three reasons:

(a)        It would go beyond the ECHR jurisprudence as to the meaning of law in relation to the rule of law. It was said to be sufficient that an individual should know the consequences that might well arise from a particular course of action.

(b)        Requiring the DPP to provide such guidance would be impractical, as it could not satisfactorily encompass every person who would fall within the class; and

(c)        It would require the DPP to cross a constitutional boundary.

(11)     The claims against the professional bodies of the GMC and SRA were dismissed on the basis of the failure of the claim against the DPP. 

(12)     The Court determined that section 2 of the Suicide Act was compatible with Article 8 for two reasons:

(i)         It was an issue that had been determined by the House of Lords and the ECtHR in the case of Pretty (R (Pretty) v DPP [2001] UKHL 61, [2002] 1 AC 800)); and

(ii)        This was an area in which member states had a wide margin of appreciation.

(13)     The Court held that the issue of whether a mandatory life sentence was the appropriate sentence for a case of voluntary euthanasia should be determined only in a case where it was necessary to do so, and this was not such a case.

(14)     The applications for judicial review were thus refused.

Claims dismissed

Key paragraphs

[78] - Creation precedent.

[79] & [84] - Parliament.

[87] - Upheld law.

[121] - No breach Article 8.

[134] & [140]-[143] - DDP correct.

[145] - Claims against professional bodies.

[148] - Compatibility section 2 with Article 8.

[151] - Mandatory life sentence.

[150] - Conclusion.

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