Is Nicklinson a case for the courts?

On 12 March 2012, Mr Justice Charles delivered a judgment that took Tony Nicklinson closer to achieving his aim of ending his life with dignity.

In 2005, Nicklinson suffered a stroke that left him with ‘locked in’ syndrome. Mr Nicklinson can only communicate with the outside world using an ‘eye-blink computer’; he used it to draft his statement in support of the application. The statement is a tragic yet dispassionate request for equality in the eyes of the law. Put simply, an able-bodied person may, without fear of legal sanction, end their life at a time and method of their choosing. Tony Nicklinson, due to his disability, may not. Can this possibly be fair?

Life sentence

For Tony to end his life he would need assistance, assistance that could result in a life sentence for the person offering such help. In 1961, section 1 of the Suicide Act decriminalised suicide and attempted suicide. The Act recognised the most profound expression of an individual’s right to self-determination, the right to end his or her own life. Sadly, section 2(1) of the Act introduced a new offence of aiding, abetting, counseling or procuring the suicide of another.

Lawyers acting for Mr Nicklinson sought leave to apply for judicial review, seeking declarations on the law relating to assisted suicide. The declarations requested were:

• a declaration that it would be lawful, on the grounds of necessity, for Mr Nicklinson’s doctors to terminate or assist the termination of Mr Nicklinson’s life;

• a declaration that the current law of murder and assisted suicide is incompatible with Mr Nicklinson’s right to respect for private life under article 8, contrary to sections 1 and 6 of the Human Rights Act 1998;

• a declaration that existing domestic law and practice fail adequately to regulate the practice of active euthanasia, in breach of article 2.

The court granted leave for judicial review in relation to grounds one and two, simultaneously refusing an application on behalf of the defendant ?in this case, the Ministry of Justice, to strike out the proceedings. The third ground was not upheld and, accordingly, struck out.

So, why should Tony Nicklinson be allowed to challenge the existing law through the courts? Can’t the existing law on assisted suicide and the guidelines for its application adequately regulate this sensitive area? Or is this an issue that should only be regulated by an Act ?of parliament?

Falling short

Nicklinson has every right to seek clarification of the law through the courts. The current status of the law creates an intolerable uncertainty for those faced with the prospect of assisted suicide; for them, lobbying for a parliamentary change in the law that may never come is simply too slow and too uncertain.

The existing guidelines on the application of the law were requested by the House of Lords in the judgment in R (Purdy) v DPP [2009] UKHL 45. The policy produced by the director of public prosecutions sought to assist affected individuals to make informed choices through a set of objective guidelines.

The policy fell short of the expectations of campaigners. The DPP refused to consider a system where individuals could acquire advance undertakings from the DPP on whether the discretion to prosecute would be exercised in any particular case.

Facing such ambiguity, Tony Nicklinson has chosen to not rely on ?the discretion of the DPP, and instead ?has sought the determination of the High Court on the legality of the specific course of action he intends to take, critically, before he and his carers embark upon it.

The law relating to assisted suicide is flawed and unfair, in that it discriminates against the disabled.

The very existence of the legislation stifles informed debate about humane termination of life. Fear of prosecution discourages honest disclosures of the practices already adopted by health professionals, and deters the frank discussion of euthanasia between the ill, their loved ones and their carers.

Finally, few cases of assisted suicide are prosecuted, none since 2010, ?however many are investigated. Between 2009 and 2012 over 40 cases were reported to the CPS. In most investigations a suspect is arrested.

The arrest of medical professionals, for whom the stigma of arrest carries a deleterious effect upon their reputation is unfortunate; however, the hostile interrogation of bereaved family members dealing with the pain of grief is, simply, inhumane.

Graeme Irvine is a partner at ITN Solicitors