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Right-to-die lawyers shouldn’t face SRA sanctions, court says

Lawyers for a man left almost entirely paralysed after a stroke three years ago secured a court direction on Friday (27 January) allowing them to assist him with legal advice about lawful means to end his life.

30 January 2012

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The declaration granted by Lord Justice Toulson on Friday also extends to doctors whose advice may be sought in the process.

“A declaration for the broad purpose of stating that the solicitors may obtain information from third parties and from appropriate experts for the purposes of placing material before the court, and that third parties may co-operate in the same way, without the people involved acting in any way unlawful is positively in the interests of justice and the proper disposal of this case,” the judge said.

Toulson LJ also criticised the Solicitors Regulation Authority for not being “entirely clear” when approached by Leigh Day & Co to clarify whether their actions could result in disciplinary proceedings.

“It is time that there should be a little clarity in this matter and that it is appropriate that a declaration should be given,” he said.

With both the SRA and the General Medical Council joined as defendants the judge said neither lawyers nor doctors acting in the case should fear disciplinary action from the respective regulators.

Toulson LJ said it was unnecessary to spell out that Leigh Day should be free to contact Dignitas to collect information.

However, inviting the parties to suggest a form of wording to cover the acts allowed by the direction, he said: “It is inevitable when this case comes to be looked at in closer detail that the court will want to have a real understanding of what it is that Martin wants other people to do. What sort of person is going to be providing what sort of help. It seems to me therefore likely to be helpful to the proper disposal of this case that the solicitors should not be precluded from taking such steps with preparing the application.”

Known as AM, or Martin, the claimant in the case is unable to speak and almost unable to move, spending nearly all his life in bed. He communicates through small movements of his head and eyes, using a computer that can detect where on the screen he is looking.

Leigh Day started proceedings because of concerns that any research they did or advice they gave on the matter could expose them to prosecution under section 2 of the Suicide Act, which makes acts of assistance to commit suicide a criminal offence.

Giving the interim direction as a preliminary stage in a judicial review application, Toulson LJ said that criminal law should be construed in accordance with fundamental principles, which included the right to a lawyer.

 “Obtaining information of the kind which the solicitors wish to obtain for the purposes of the JR application, and passing that to Martin, could ultimately, be capable of assisting him to commit suicide, if his application were successful,” he said.

He went on: “But, to adopt a construction of section 2 of the Act which thereby made the solicitors guilty of a criminal offence by collecting such information for the purpose of placing it before the court would conflict with the constitutional principles to which I have referred, and that cannot be the proper way of construing the section.”

The DPP issued new guidelines in relation to assisted suicide following the House of Lords 2009 ruling in the Purdy case.

These suggest that AM’s wife would be unlikely to be at risk of prosecution under the Suicide Act if she helped him die but she has refused to be involved in any steps that might be taken to hasten her husband’s death, leading AM to seek alternative assistance.

Because the guidelines do not offer wider guarantees, AM’s lawyers approached the DPP for assurances both in relation to assistance provided by a third party, such as doctors, and to themselves as they investigate options available to AM.

The judicial review proceedings of the guidelines are yet to be formally started.

Leigh Day will argue that the guidelines aren’t sufficiently clear and that this breaches AM’s privacy rights under article 8 ECHR.

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