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UK Court issues decision on assisted suicide and euthanasia - The Tony Nicklinson case

Buddle Finlay - Health Sector Legal Update

The High Court of England and Wales yesterday released its decision in Nicklinson v Ministry of Justice, declining to change the law concerning assisted suicide and euthanasia. Consistent with previous cases, the Court concluded that any changes in this area of law were for Parliament to decide as they required "the most carefully structured safeguards which only Parliament can deliver".

The case has gained widespread media coverage in the UK, and comes only two months after Canada's Supreme Court found that the provisions of its Criminal Code that prohibit physician-assisted dying are incompatible with the Canadian Charter of Rights and Freedoms.

In New Zealand, voluntary euthanasia remains illegal, as does aiding, abetting or in any way assisting suicide. The Hon Maryan Street has drafted a Private Member's Bill allowing people in specified circumstances to obtain medical assistance to end their life. Her Bill, the End of Life Choice Bill, has been submitted for the ballot. While the Bill has not yet been drawn, it is already provoking much discussion and debate within the health sector and the wider community. The last Bill on euthanasia failed by 58 votes to 60 in 2003.

The Tony Nicklinson case

This case concerned actions brought by two sufferers of "locked in syndrome," Tony and Martin. Both Tony and Martin are mentally aware, but have no voluntary muscle movement apart from being able to move their eyes. Both are determined that they wish to die with dignity and without further suffering, but both are physically incapable of ending their own lives. Neither is terminally ill.

Tony has difficulty swallowing, and so the only way in which he may end his life (other than by assisted self-starvation), is by voluntary euthanasia. In considering his application, the Court traversed the common law relating to suicide and euthanasia, before concluding that "it would be wrong for the court to depart from the long established position that voluntary euthanasia is murder ...." In addition, the Court held that it would be going too far to interpret the European Convention (specifically Article 8, which protects the right to a person's private life) as requiring that voluntary euthanasia be a possible defence to murder. It concluded that to do so would be to usurp the role of Parliament.

Martin is not reliant on voluntary euthanasia, and is able to die either by using the services of Dignitas in Zurich or by assisted self-starvation. The Director of Public Prosecution's (DPP) policy on prosecution for assisted suicide establishes that family members and friends who assist a person to die would be unlikely to be prosecuted, but Martin's concern is that it was unclear to him whether others who assisted him to die would face prosecution for doing so. He sought an order that the DPP clarify the policy so as to spell out whether people who had no personal connection to the person who wished to die, such as carers, health professionals, or solicitors, would face prosecution.

The Court declined to find that the DPP was under a legal duty to clarify his policy, considering it was clear from the policy that such a person would face a real risk of prosecution, but that the facts and circumstances of the case would ultimately decide whether a person would be prosecuted. Accordingly, Martin's claim in relation to the General Medical Council and Solicitors Regulation Authority also failed. (He had asked that the Council and Authority ensure that doctors or solicitors who assist a person to die not face disciplinary proceedings for doing so).

The Court also declined to consider whether a mandatory life sentence for murder was incompatible with the Convention in the case of genuine voluntary euthanasia.

In closing, the Court noted:

"To do as Tony wants, the court would be making a major change in the law. To do as Martin wants, the court would be compelling the DPP to go beyond his established legal role. 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."

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