On 31 July 2013 the Court of Appeal handed judgment in the "right to die" case of R (on the application of) Nicklinson v Ministry Of Justice [2013] EWCA Civ 961. The High Court had considered the
On 31 July 2013 the Court of Appeal handed judgment in the "right to die" case of R (on the application of) Nicklinson v Ministry Of Justice [2013] EWCA Civ 961. The High Court had considered the cases in June 2012 (judgment here), when the claimants in the case were M and N, two men suffering from "locked in syndrome", with catastrophic physical disabilities but unimpaired mental processes, who wished to die but (food refusal and consequent starvation aside) were unable to do so without assistance.
In the High Court, each contended that those providing assistance in bringing about their deaths ought not to be subject to criminal consequences. M sought in the alternative to require the Director of Public Prosecutions (DPP) to set out in greater detail how his prosecutorial discretion may be exercised so that he, and anyone assisting him, should be able to assess with some confidence the risk of their being prosecuted.
The High Court considered the matter carefully but declined to grant the declarations sought. Lord Justice Toulson, in giving the leading judgement, confirmed that the DPP had, in publishing guidelines in February 2010 " done what was required of him…and it would be wrong to require him to do more" and ultimately stated that "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."
N vowed to continue his fight by taking the case to the Court of Appeal, but died on 22 August 2012. His wife subsequently won permission to challenge the ruling, and in March this year, the Court of Appeal granted permission to a third claimant, L (who was paralysed following a road accident, and who, like N, could not take the final steps to kill himself), to take over N's claims, and to pursue the case along with M.
The Court of Appeal heard the cases in May 2013 and, when judgment was handed down this week, it was again highlighted that "The short answer must be, and always has been, that the law relating to assisting suicide cannot be changed by judicial decision".
The Court considered that the blanket prohibitions on euthanasia and assisted suicide did not constitute a disproportionate interference with the Article 8 rights of L and M. Further, in relation to M, the Court concluded that he had no right to require the DPP to desist from prosecuting a carer or doctor who helps him to die, and the DPP could not be required as part of his prosecution policy to identify a category of cases where a prosecution will not be initiated.
However, the Court (Lord Justice Judge dissenting) upheld one ground of challenge, that the DPP's prosecution policy was an unjustified interference with M's Article 8 rights. The Court considered that the interference constituted by the policy was not "in accordance with the law" as required by Article 8(2), in that, in respect of what were called "Class 2 cases" (individuals with no personal connection with M, but who would act out of a sense of compassion and understanding for his position, including doctors and other professionals), the policy failed to provide sufficient clarity.
And so what of the impact on regulators? In the High Court, the SRA and the GMC were joined as defendants to the proceedings, and one of the issues in the case was whether they were under a legal duty to clarify their positions. However, as the High Court rejected the claim that the DPP was obliged by law to publish further clarification of his policy on assisted dying, it followed that the claims in the High Court against the GMC and the SRA also failed.
Neither body was joined in the Court of Appeal case, but may need, in time, to reflect further upon the position of their registrants following the judgment, as may other regulators whose registrants may be asked to assist by L or M (or in due course, others in a similar situation).
However, it is likely to be some time before the issue is finally clarified, with the DPP reacting to the judgment as follows: "While I respect the carefully considered judgment of the Court of Appeal, I think it would be sensible for the CPS, if possible, to have the benefit of the views of the Supreme Court before any amendments are made to the DPP’s guidelines in this important and sensitive area of the law"
In the High Court, each contended that those providing assistance in bringing about their deaths ought not to be subject to criminal consequences. M sought in the alternative to require the Director of Public Prosecutions (DPP) to set out in greater detail how his prosecutorial discretion may be exercised so that he, and anyone assisting him, should be able to assess with some confidence the risk of their being prosecuted.
The High Court considered the matter carefully but declined to grant the declarations sought. Lord Justice Toulson, in giving the leading judgement, confirmed that the DPP had, in publishing guidelines in February 2010 " done what was required of him…and it would be wrong to require him to do more" and ultimately stated that "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."
N vowed to continue his fight by taking the case to the Court of Appeal, but died on 22 August 2012. His wife subsequently won permission to challenge the ruling, and in March this year, the Court of Appeal granted permission to a third claimant, L (who was paralysed following a road accident, and who, like N, could not take the final steps to kill himself), to take over N's claims, and to pursue the case along with M.
The Court of Appeal heard the cases in May 2013 and, when judgment was handed down this week, it was again highlighted that "The short answer must be, and always has been, that the law relating to assisting suicide cannot be changed by judicial decision".
The Court considered that the blanket prohibitions on euthanasia and assisted suicide did not constitute a disproportionate interference with the Article 8 rights of L and M. Further, in relation to M, the Court concluded that he had no right to require the DPP to desist from prosecuting a carer or doctor who helps him to die, and the DPP could not be required as part of his prosecution policy to identify a category of cases where a prosecution will not be initiated.
However, the Court (Lord Justice Judge dissenting) upheld one ground of challenge, that the DPP's prosecution policy was an unjustified interference with M's Article 8 rights. The Court considered that the interference constituted by the policy was not "in accordance with the law" as required by Article 8(2), in that, in respect of what were called "Class 2 cases" (individuals with no personal connection with M, but who would act out of a sense of compassion and understanding for his position, including doctors and other professionals), the policy failed to provide sufficient clarity.
And so what of the impact on regulators? In the High Court, the SRA and the GMC were joined as defendants to the proceedings, and one of the issues in the case was whether they were under a legal duty to clarify their positions. However, as the High Court rejected the claim that the DPP was obliged by law to publish further clarification of his policy on assisted dying, it followed that the claims in the High Court against the GMC and the SRA also failed.
Neither body was joined in the Court of Appeal case, but may need, in time, to reflect further upon the position of their registrants following the judgment, as may other regulators whose registrants may be asked to assist by L or M (or in due course, others in a similar situation).
However, it is likely to be some time before the issue is finally clarified, with the DPP reacting to the judgment as follows: "While I respect the carefully considered judgment of the Court of Appeal, I think it would be sensible for the CPS, if possible, to have the benefit of the views of the Supreme Court before any amendments are made to the DPP’s guidelines in this important and sensitive area of the law"