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Nicklinson loses right-to die High Court case

Locked-in syndrome sufferer Tony Nicklinson has today (16 August 2012) lost his right-to-die appeal at the High Court.

16 August 2012

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Lord Justice Toulson, Mr Justice Royce and Mrs Justice Macur rejected challenges to the legal ban on voluntary euthanasia, and to the policy of the Director of Public Prosecutions in cases of assisted dying, brought by Nicklinson and ‘Martin’.

Both men suffer from ‘locked-in syndrome’, a condition in which patients are awake and aware, but cannot move or communicate due to complete paralysis of nearly all muscles in the body except for the eyes.

Nicklinson’s disability means that he cannot take his own life other than by slow starvation. He was seeking declarations that it would be lawful for a doctor to terminate his life, with his consent and with him making the decision with full mental capacity.

Martin sought an order that the DPP should clarify his published policy so that other people, who may on compassionate grounds be willing to assist Martin to commit suicide through the use of Dignitas (an assisted suicide clinic in Switzerland), would know whether they would be more likely than not to face prosecution in England.

Although the court recognised that the cases raise profoundly difficult ethical, social and legal issues, it judged that any change to the law must be a matter for parliament to decide.

Nicklinson has vowed to appeal the decision. “It’s not the result I was hoping for, but it isn’t entirely unexpected. Judges, like politicians, are happiest when they can avoid confronting the real issues and this judgment is not an exception to the rule.

“I believe the legal team acting on my behalf is prepared to go all the way with this, but unfortunately for me it means yet another period of physical discomfort, misery and mental anguish while we find out who controls my life - me or the state,” he wrote on Twitter.

It is hoped that the appeal might be heard before Christmas. Nicklinson's solicitor, Saimo Chahal from Bindmans, said: “Tony has already confirmed to me when I visited him yesterday that he wants to appeal the judgment and all parties in the case now know that this will now be happening. Tony’s legal team are ready to fight on and anticipate that the case will go to the Supreme Court via the Court of Appeal.”

"The next stage of the case is that we will be preparing an application to appeal the decision and asking for the case to be expedited so that it can be heard by the Court of Appeal as soon as possible.
 
We do not know when the Court of Appeal listing will be but hope that it might take place by Christmas. That is what we will be asking for,” she said.
 
In giving his judgment, Lord Justice Toulson said: “Tony’s and Martin’s circumstances are deeply moving. Their desire to have control over the ending of their lives demands the most careful and sympathetic consideration, but there are also other important issues to consider.

“A decision to allow their claims would have consequences far beyond the present cases. 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.

“These are not things which the court should do. 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.

“For those reasons I would refuse these applications for judicial review,” he said.

Mr Justice Royce agreed with Toulson LJ. He added: “No one could fail to be deeply moved by the terrible predicament faced by these men struck down in their prime and facing a future bereft of hope.

“Each case gives rise to most profound ethical, moral, religious and social issues. Some will say the judges must step in to change the law. Some may be sorely tempted to do so. But the short answer is that to do so here would be to usurp the function of parliament in this classically sensitive area. Any change would need the most carefully structured safeguards which only parliament can deliver.”

Mrs Justice Macur confirmed the decision. “I agree with the judgment of Toulson LJ and endorse the comments of Royce J,” she said. “Superfluous as it may therefore appear I nevertheless feel compelled to comment that the dire physical and emotional predicament facing Tony and Martin and their families may intensify any tribunal’s unease identified by Lord Mustill in Bland in the distinction drawn between ‘mercy killing’ and the withdrawal of life-sustaining treatment or necessities of life.

“Judges of the Family Division sitting in the Court ofProtection adjudicate upon applications for declarations in relation to the latter and have become well accustomed to the ‘balance sheet of best interests’ which informs the decision of the court.

“However, Mr Bowen QC does not succeed in persuading me that this process may reassure society that the development of common law for which he contends is merited by separate consideration of individual circumstances by individual tribunals of whatever stature and experience. The issues raised by Tony and Martin’s case are conspicuously matters which must be adjudicated upon by parliament and not judges or the DPP as unelected officers of state.”

For the full judgment see http://www.judiciary.gov.uk/media/judgments/2012/tony-nicklinson-judgment-16082012

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