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Locked-in syndrome sufferer starts right-to-die appeal

Lawyers say court should intervene without waiting for parliament to legislate where human rights are concerned

19 June 2012

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Locked-in syndrome sufferer Tony Nicklinson (pictured) will tomorrow start his appeal in the High Court for a declaration that if doctors and his wife help him die they should not be prosecuted.

The DPP refused Mr Nicklinson’s request in June 2010 to issue offence-specific guidelines in mercy killing cases and he brought a judicial review against the decision, joining the Ministry of Justice to the proceedings.

“The government believes that any change to the law in this emotive and contentious area is an issue of individual conscience and a matter for parliament to decide rather than government policy,” an MoJ spokesperson told Solicitors Journal on the eve of the strike-out application.

Mr Justice Charles allowed the case to proceed on 12 March and lawyers for Mr Nicklinson will now argue that it would not be unlawful on the grounds of necessity for his GP or another doctor to terminate or assist the termination of his life.

They will also seek a declaration that English law of murder is incompatible with Tony Nicklinson’s right to respect for private life under article 8 ECHR because it criminalises voluntary active euthanasia and assisted suicide.

The same argument was raised in the Debbie Purdy case, where the multiple sclerosis sufferer sought assurances that her husband would not be prosecuted if he travelled with her to the Dignitas clinic.

In its last case the House of Lords ruled in her favour, saying the DPP should issue offence-specific guidance in assisted suicide cases.

Mr Nicklinson’s lawyers say that where there is a breach of the European Convention on Human rights again the courts must act and cannot state that it is a matter for parliament. They must deal with the case before them.

Nicklinson, 57, is only able to move his eyes and head after he suffered 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.

Unlike Debbie Purdy, Mr 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 2010 guidelines on assisted suicide.

His lawyers argue that the change in public opinion about assisted dying, personal autonomy and self determination should be reflected in the law.

They say their argument is supported by an editorial piece last week in the British Medical Journal (BMJ) calling the British Medical Association to move from a position of opposition to assisted dying to one of neutrality.

They will also rely on a decision by the Supreme Court of British Columbia on 15 June in Carter v Canada that criminal law relating to assisted suicide and murder to be unlawful and unjustifiably discriminatory against people with disabilities and grossly disproportionate to any legitimate legislative interest.

Tony Nicklinson took his campaign into the social media sphere at the weekend when he set up a Twitter account.

His first tweet said “Hello world. I am tony nicklinson, I have locked-in syndrome and this is my first ever tweet. #tony.” Since then he has gained 17,337 followers.

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