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Judges not persuaded by ‘right to die’ appellants

27 June 2014


Incapacitated: Tony Nicklinson with his wife, Jane, in 2012

Incapacitated: Tony Nicklinson with his wife, Jane, in 2012

THREE claimants in the series of cases known as the "right to die" litigation have failed to persuade a panel of nine Supreme Court judges that UK law breaches their human rights.

The appeals arose from claims brought by the late Tony Nicklinson, Paul Lamb, and another claimant known only as Martin, each of whom said that he was suffering such a distressing and undignified life that he had long wished to end it - but could not do so by himself because of his physical incapacity.

Mr Lamb has been completely immobile since a car crash in 1990. He has 24-hour carers, is in constant pain, and requires morphine continually. He wanted the law to permit him to seek assistance in killing himself. He was supported by the widow of Mr Nicklinson, who had been completely paralysed after a stroke, and could communicate only by laboriously blinking to spell out words on a computer. He died in August 2012 by starving himself, after the Court of Appeal refused to declare that it would be lawful for a doctor to kill him, or assist him in terminating his life.

Martin suffered a brainstem stroke when he was 43, and is unable to move. He is cared for by his wife and carers, and communicates via an eye-blink computer. He wishes to end his life, which he regards as undignified, distressing, and intolerable. His only way of achieving that is by travelling to the Dignitas clinic in Switzerland, where the law enables those who wish to die to do so.

Martin's wife does not wish to be involved in that project, and he does not want any other member of his family to be involved. He says that he needs assistance from his carers, or from an organisation such as Friends at the End. He wants the Director of Public Prosecutions (DPP), Alison Saunders, to clarify and modify her policy, so that responsible people, such as his carers, could assist him in committing suicide through Dignitas without the risk of being prosecuted.

Besides the claimants and the DPP, there were three interveners who appeared in the appeal before the Supreme Court: Choice in Dying, CNK Alliance Ltd. (Care Not Killing), and the British Humanist Society.

The first issue before the Supreme Court was whether it should declare that section 2 of the Suicide Act was incompatible with the right to respect for private life, which was protected by article 8 of the Human Rights Convention.

It was argued that the rights of Mr Nicklinson and Mr Lamb under article 8 should be accommodated by their being able to seek the assistance of third parties to enable them to kill themselves in a dignified and private manner, at a time of their choosing, in the UK.

Against that, the main justification advanced for an absolute prohibition on assisting suicide was the perceived risk to vulnerable individuals, who might feel themselves a burden to their family, friends, and society, and might,if assisted suicide were permitted, be persuaded, or convince themselves, that they should undertake it when they would not otherwise do so.

The Supreme Court, by a majority of seven to two, declined to make that declaration, and said that it was a matter for Parliament to investigate, debate, and decide on.

Martin also relied on article 8, and argued that the terms of the DPP's 2010 policy was insufficiently clear about the likelihood of prosecution of individuals - especially members of the caring professions, who might be prepared, out of compassion, to provide assistance to a person who had a voluntary and informed wish to commit suicide. He argued thatthe policy should be modified to make it clear that such an individual would not be liable to prosecution.

Martin had been partly successful in the Court of Appeal, which ruled that the policy was not sufficiently clear in regard to health-care professionals. The DPP appealed against that ruling.

The Supreme Court unanimously allowed the DPP's appeal. It said that it should not involve itself with the terms of the DPP's policy on assisted suicide.

A Bill on assisted suicide is currently before the House of Lords.

Question of the week: Is it time to relax the law on assisted suicide?

Aiding suicide is still illegal

ALTHOUGH committing suicide is no longer an offence, it is still an offence under section 2 of the Suicide Act 1961 for a person to do "an act capable of encouraging or assisting the suicide or at­­tempted suicide of another per­son". The Act, however, provides that a prosecution cannot be brought for the offence of assisting in a suicide without the DPP's permission. The DPP has the right to decide that it is not in the public interest to prosecute someone who assisted in a suicide, even when it is clear that an offence has been com­mitted.

In 2010, the DPP published a policy document setting out the "public-interest factors tending in favour of prosecution", including cases where the victim was aged under 18, or did not have the capacity to reach an informed decision to commit suicide, and where the suspect was not wholly motivated by compassion: for example, because he or she stood to gain from the victim's death, or where the suspect had pressured the victim to commit suicide.

The DPP's "public-interest fac­tors tending against prosecu­tion" included circumstances where the suspect was wholly motivated by compassion, or had sought to dissuade the victim from taking the course of action which resulted in the suicide, or had reported the suicide to the police.

The current position is that the State is not entitled to intervene to prevent a person of full capacity, who has arrived at a decision to take his own life, from doing so. But such a person did not have the right to call on a third party to help him or her.

Prosecutions for assisting sui­cide are rare. Between 1998 and 2011, a total of 215 British citi­zens appear to have com­mitted suicide at the Dignitas clinic in Zurich, but none of them has been prosec­uted.

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