Personal Injury, Serious Injury & Clinical Negligence

Crossing the Rubicon on the Right to Die Ferry

“… it is not lawful for a doctor to administer a drug to his patient to bring about his death, even though that course is prompted by a humanitarian desire to end his suffering, however great that suffering may be … So to act is to cross the Rubicon which runs between on the one hand the care of the living patient and on the other hand euthanasia – actively causing his death to avoid or to end his suffering. Euthanasia is not lawful at common law.”

Lord Goff in Airedale NHS Trust v. Bland [1993] AC 789 at 865.

“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.”

Lord Justice Toulson in Nicklinson v. Ministry of Justice [2012] EWHC 2381 (Admin) at 150

Tony Nicklinson

On 22 August 2012 Tony Nicklinson died, four days after he had lost his right to die case in the High Court. He had been seeking a declaration from the Court that it would be lawful for a doctor to end his life. It is understood Mr Nicklinson stopped eating after the judgment, he contracted pneumonia, chose not to accept antibiotics from his doctors and passed away at home peacefully with his family.

We explained the legal background to Tony Nicklinson’s case on 19 June 2012.

Tony Nicklinson suffered from locked in syndrome following a stroke in 2005 and he argued that there should be a defence of necessity to a charge of murder by a doctor helping him to end his life. He was not terminally ill, and although he retained mental capacity his condition meant he was physically unable to take his own life. He also argued that the State, in not allowing him to choose the method of his own death, was in breach the Human Rights Act 1998 and of his right to respect to private family life protected by Article 8 of the European Convention of Human Rights.

The High Court dismissed Mr Nicklinson’s claims and found that that it was for Parliament, rather than the Courts, to change the law of physician assisted dying.

Tony Bland

If a doctor intentionally takes positive steps to end a patient’s life, as was Tony Nicklinson’s wish, he commits the offence of murder even if the aim is to end the patient’s suffering. However, since 1993 and the case of Tony Bland, the law has made a distinction between doctors taking positive steps to end life, amounting to murder, and lawful omissions by doctors leading to the death of the patient, such as the withdrawal of artificial nutrition and hydration (ANH) from patients in permanent vegetative state (PVS).

Tony Bland suffered severe and irreversible brain damage at the Hillsborough football stadium disaster in 1989. He was diagnosed as having PVS as his brain stem continued to function but the cerebral cortex of his brain had been destroyed. He had lost all his senses and the ability to communicate but continued to breathe independently. He was being kept alive by ANH.

The doctors caring for Tony Bland and independent experts were all agreed that there was no prospect of any recovery given the severity of his brain damage. After two years, with the support of his family, the hospital caring for Tony Bland sought a declaration from the High Court that it would be lawful to discontinue the ANH that was keeping him alive. The case reached the House of Lords who unanimously found that it would be lawful to withdraw ANH which would lead to Tony Bland’s death.

The House of Lords found that there was no legal obligation on the doctors to provide ANH to Tony Bland, as the treatment was futile with there being no prospect of recovery. The continuation of ANH was therefore not in Tony Bland’s best interests so there could be no criminal charges brought against the doctors for the omission in not providing it.

Comment

The decision in Bland sets the limits on the decisions that doctors can make which may result in the death of a patient. Some have argued that the Bland decision is an endorsement of passive euthanasia of patients who lack the mental capacity to decide for themselves.

Tony Nicklinson, unlike Tony Bland, was able to make decisions himself and he was able to choose to refuse food and fluids – it appears that he made this decision in his final days. The decision to discontinue Tony Bland’s ANH arguably made no difference to him whereas Tony Nicklinson consciously suffered for seven years with his condition.

If Tony Nicklinson had been on a ventilator he could have instructed his doctors to switch the machine off as adults with mental capacity have an absolute right to refuse medical treatment under the Mental Capacity Act 2005 even if the decision leads to their death.

If Tony Nicklinson had been able bodied he could lawfully have chosen to take his own life. Following the case of Debbie Purdy in 2009 the Director of Public Prosecutions issued detailed guidance on the circumstances in which prosecutions for assisting another person to commit suicide under the Suicide Act 1961 may be brought, which Tony Nicklinson’s family would have been aware of, but it was not his wish to travel to the Dignitas clinic in Switzerland.

In reality Tony Nicklison’s condition meant he was not able to choose the method of his own death in light of the legal distinction between acts and omissions of doctors as explained in the Bland. Whether there is a moral distinction and whether the legal distinction should be maintained in such cases is a matter of ongoing debate which will be Tony Nicklinson’s greatest legacy.

Link to Nicklinson judgment

We are able to offer advice and representation on cases involving consent to medical treatment and best interests decision making, in addition to cases concerning mental health and brain injury.

For further details please contact John Boyle