Personal Injury, Serious Injury & Clinical Negligence

Tony Nicklinson – Assisted Suicide, dying with dignity and euthanasia

Tony Nicklinson

The 1961 Suicide Act makes it an offence to encourage or assist a suicide or a suicide attempt in England and Wales. Anyone doing so could face up to 14 years in prison.

Many pro euthanasia groups, such as Dignity in Dying, advocate it respects the right to private life, the right to die with dignity, to give someone an opportunity to unburden those caring for them. Those against euthanasia and assisted dying, such as ALERT and Not Dead Yet UK, stress that such a course does not take into account the aftermath of the death, leaving behind loves ones. Further some against euthanasia and assisted dying argue it may be seen as the ‘easy’ option and one that is taken without great thought, going against the principle of the sanctity of life. Statistics would suggest that legalisation of assisted suicide would not result in thousands queuing up to have deadly drugs administered and other countries have successfully controlled the process.

Tony Nicklinson suffers from ‘locked in syndrome’: where a person cannot move and cannot speak but remains mentally intact. He wishes to bring an end to his life but of course cannot do this without assistance.

In March 2012, Tony Nicklinson successfully obtained judgment from the High Court that he has an arguable case for declarations that it would not be unlawful, on the grounds of necessity, for a doctor to terminate or assist in the termination of his life, or alternatively that the present law of murder and/or of assisted suicide was incompatible with his right to respect for private family life under Article 8 of the European Convention on Human Rights 1950 (ECHR). Many similar cases have been in the press, highlighting what some perceive as an inconsistent approach taken by the Crown Prosecution Service (CPS) and the police when deciding whether to prosecute a person assisting another to commit suicide.

The principle of necessity

Mr Nicklinson is arguing that a doctor assisting him to die can be justified through the criminal law doctrine of necessity and would not amount to murder. The principle of necessity was applied by the Court of Appeal in the conjoined twins’ case of Jodie and Mary. Mary was not a viable twin and was only being kept alive by the blood supply of Jodie. If they were kept together both twins would die. If separated, in all likelihood, Jodie would survive but Mary would certainly die.

The Court of Appeal had to decide whether it would be lawful under the criminal law for the doctors to perform the surgical separation to save Jodie which would lead to Mary’s certain death. The Court of Appeal confirmed that it would be lawful under the principle of necessity to perform the separation, it being the lesser of two evils. Lord Justice Ward however stressed how unique a case this was and that it should not be used as a precedent in future cases. Whether Mr Nicklinson will be successful in his case using the necessity argument will be seen at a later stage, although the facts of the conjoined twins are clearly far removed from his own.

Article 8 of the ECHR

In 2002 the House of Lords held in Diane Pretty’s case (who was in the advanced stages of a fatal incurable degenerative disease) that Article 8 of the ECHR was directed to the protection of personal autonomy while a person was alive. This did not extend to confer a right to decide when or how to die. The European Court of Human Rights however disagreed with the House of Lords, stating later in 2002, that Article 8 may well be extended so that a choice could be exercised in relation to death. Mr Nicklinson may therefore progress his case by using this more persuasive Article 8 application than the necessity argument.

In 2009 Debbie Purdy, who was diagnosed with MS, successfully won the right to have guidance on whether those assisting with suicide would be punished. Following the lead taken by the European Court of Human Rights in the Diane Pretty case, the House of Lords accepted that Article 8 of the ECHR was relevant to the decisions taken by individuals as to how they wish to die.

Previously the Director of Public Prosecutions (DPP) had chosen to not prosecute those assisting others to commit suicide but had not cited their reasons or justification for lack of prosecution. The DPP issued guidelines as to what would be considered when deciding whether to prosecute someone assisting another to commit suicide e.g. a husband accompanying his wife to a clinic inSwitzerlandto have a lethal drug administered. There are 16 public interest factors for prosecution and 6 public factors against prosecution. These include whether the victim reached a voluntary, clear, settled and informed decision; whether pressure was applied to the victim to commit suicide; whether the victim was physically able to undertake the act of committing suicide, and whether the person assisting with the suicide stood to benefit from the death.

The future

The new DPP guidelines will in some way help those asking someone to assist them to commit suicide to know whether that person would later face prosecution. Debbie Purdy is therefore now in the position of knowing her husband would not necessarily face prosecution by accompanying her to the clinic inSwitzerland. The law itself of assisted suicide however was not changed and neither has the law been changed in the aftermath of Mr Nicklinson’s case, which will now have to proceed to a full hearing.

The Falconer Report, published in January 2012 and partially funded by Terry Pratchett a long time advocate of assisted suicide, concluded that MPs should debate changing the law on assisted suicide to allow some terminally ill people to end their lives at home with the help of their doctor. This report, along with the issues raised in Mr Nicklinson’s case, is currently being considered by Parliament.

On Tuesday 19 June 2012 Mr Nicklinson began his substantive hearing in the High Court, which is to decide whether it would be lawful for a doctor to actively end his life, for example by administering a lethal dose of medication. The hearing was scheduled to last 4 days; however the ruling will not be made until a later date.

Whether the UK will go as far as legalising assisted suicide is something which at present seems unlikely, however it is not certain how this area of law will progress and those fighting for a right to end their life with dignity may at last get their dying wish.

Link to Nicklinson Judgement

Author: John Boyle