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Locked-in syndrome sufferer to challenge government over euthanasia

26 July 2010

Lawyers for a locked-in syndrome sufferer are set to challenge the government over right-to-die laws if, as is expected, the Director of Public Prosecutions cannot be forced to issue offence-specific guidelines on mercy killing.

Tony Nicklinson, 56, is only able to move his eyes and head after suffering a stroke while on a business trip to Athens in 2005. Five years on, the paralysed father of two is considering ending his life with the assistance of his wife.

Last month, the Director of Public Prosecutions (DPP) rejected his request to issue specific guidelines for mercy killing cases.

Nicklinson’s solicitor, Bindmans partner Saimo Chahal, told Solicitors Journal she anticipated the DPP would say he had no discretion to issue a specific policy in respect of mercy killings because it was a matter of law reform.

“We intend to bring in the Ministry of Justice as they are responsible for law reform,” Chahal said.

One key argument to force a change in the law could be that English rules on murder are incompatible with article 8 of the European Convention on Human Rights because they don’t distinguish between unlawful killing and consensual killing.

Changes to the law on human rights grounds have been triggered before following referrals to the European Court of Human Rights, most recently in relation to stop-and-search powers under section 44 of the Terrorism Act 2000. The process, however, is a protracted one requiring applicants to exhaust all possible routes of redress under domestic law before the case can be taken to Strasbourg.

The last time similar issues were raised was in the Diane Pretty case in 2001. Pretty, who was terminally ill with motor neurone disease, had sought advance immunity from prosecution for her husband if he were to help her take her life. The then DPP, Ken McDonald, said he did not have jurisdiction to grant the requested assurances.

The Strasbourg court later found in this case that article 8 was engaged. Diane Pretty died before the House of Lords had the chance to consider the European court’s ruling but the precedent was subsequently endorsed by the law lords in the Purdy case in July last year.

As in Purdy, the course of action chosen by Tony Nicklinson is that of judicial review. Last week he applied for permission to start proceedings over Keir Starmer’s refusal to issue a specific prosecution policy, arguing that “an absolute prohibition on euthanasia contained in the law of murder is a disproportionate interference with his right to personal autonomy under article 8 (right to private life) ECHR”. The court is expected to rule in four to six weeks.

Nicklinson’s application comes just over a year after MS sufferer Debbie Purdy won her case in the Lords, forcing the DPP to publish an offence-specific prosecution policy on assisted suicide.

Debbie Purdy envisages that she would end her life with the assistance of her husband, Cuban violinist Omar Puente. The couple would go together to the Dignitas clinic in Zurich where Ms Purdy would take her own life herself.

By contrast, Tony Nicklinson’s condition is such that he would not be able to take his own life. This would put any family member helping him outside the scope of the DPP’s February guidelines on assisted suicide.

Chahal said that charging Mr Nicklinson’s wife with murder if she were to accept her husband’s request to terminate his life, at his instigation and with his consent, was wrong. It placed her “in the same category as a bomber who intends to maim or kill as many people as possible”, she said.

Chahal added that the law of murder was “inflexible” and that it should be reviewed particularly in the context of mercy killing to distinguish consensual killing from unlawful killing.

The CPS responded that there were several important distinctions between assisted suicide, euthanasia and so-called mercy killing.

“Suicide, whether assisted or not, and murder are very different acts in that the former requires a person to take their own life, whereas the latter involves a person doing an act that ends the life of another,” a spokesperson said.

“This remains a fundamental distinction even if that act is done on the basis that the person is simply complying with the wishes of the other individual concerned.”

  • In a separate development, it has emerged that Frances Inglis, the woman convicted of murder for giving her son Tom, who was in a vegetative state, a heroin overdose, has sacked her legal team.

Inglis, who was given a nine-year prison sentence in January, was due to start her appeal on Wednesday morning. She was initially represented by solicitor Katie Wheatley, of Bindmans, with Sasha Wass QC, of 6 King’s Bench Walk, as counsel. Minutes before the hearing began, she informed Lord Judge she had dismissed her lawyers. The case has been adjourned until alternative lawyers are appointed.

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