The Nicklinson decision is heartbreaking, but the right one in terms of maintaining the separation of powers, says Isabel McArdle

Few topics can be as polarising as the question of whether there should be a right to die for those suffering conditions so debilitating that they need assistance to take their own lives. On the one hand, campaigners for a right to die stress the lack of dignity and incredible suffering faced daily by those afflicted by these conditions.

Respect for autonomy, they argue, should prevail and others should be free to assist those whose mental autonomy is intact but whose physical autonomy is impaired. The counterarguments focus on the possibility of some of society’s most vulnerable people being pressured into having their lives ended, and the complex ethical problems this would pose for the medical profession.

Defence of necessity

The High Court has produced an important judgment on this controversial topic. Tony Nicklinson, a sufferer of ‘locked-in’ syndrome which has left him unable to move save for blinking his eyes, wants to end his own life. He took his case to court, seeking assurances that doctors who assist in his suicide attempt will not face murder convictions, but will be able to rely on the defence of “necessity”.

This doctrine has traditionally applied to an extremely limited number of situations, where the act in question was required to avoid an otherwise “inevitable and irreparable evil” and met other strict criteria. A good example was the separation of conjoined twins Jodie and Mary, which led to Mary’s death, but was found to be lawful by the Court of Appeal on the basis of the defence of necessity, among other reasons.

Lord Justice Toulson, sitting with Mrs Justice Royce and Mrs Justice Macur in the High Court, also heard at the same time as Mr Nicklinson’s case the case of ‘Martin’, an anonymous sufferer of ‘locked-in’ syndrome. Unlike Mr Nicklinson, Martin sought clarity in the law regarding people who he wants to assist him in reaching the Dignitas clinic in Switzerland. His wife is unwilling to help him get there, so he sought immunity from prosecution, or at least legal clarity, for volunteers instead.

He also sought reassurance that solicitors and doctors who were involved in helping him commit suicide did not face disciplinary action by the Solicitors Regulatory Authority (SRA) and General Medical Council (GMC).

The claimants also argued that their human right to respect for private life, provided by article 8 of the European Convention on Human Rights, was infringed by criminalisation of voluntary assisted suicide. They sought a declaration that the current law breached the Convention.

The decision comes after the case of Debbie Purdy in 2009, which forced the Director of Public Prosecutions to publish guidelines on when those assisting a person to commit suicide should be prosecuted. The guidelines list factors which weigh in favour of prosecution, and these include the suspect acting in the capacity of a healthcare professional.

A defence to murder?

The first matter to be decided was whether the law already provided a defence of necessity for doctors in assisted dying cases. The defence of necessity was found not to apply in this case. It was argued that allowing a doctor to end a life was the lesser of two evils, so analogous to the conjoined twins’ case. Unlike in that case, certain critical features were absent, such as the danger to one twin’s life created by the parasitic life of the other. The conjoined twins’ case had been highly unusual and required an urgent decision. Here, there was no lack of causation, no lack of intent and no quasi-self defence (defending another person) if a doctor were to assist the claimants in dying.

A decision for parliament

Unsurprisingly, the central theme of the decision was that the court considered that the issues at stake to be a matter for parliament. It noted that the case raised issues of competence, constitutionality and control of the consequences which meant legislation would be needed to change the law.

Article 8

It was argued that the right to respect for private life includes two more specific rights: the right to personal autonomy and the right to dignity. Given the dreadful conditions in which Mr Nicklinson lives, which involve him having no direct control over almost all of his daily activities, he argued that article 8 gives him the right to end his own life.

The counterarguments largely focused on the consequences for other members of society. This challenge was also rejected on the basis that the case law, both UK and from the European Court of Human Rights, did not support it, and the matter was in parliament’s sole domain.

Are the DPP, SRA and GMC under a duty to clarify their policies?

It was argued that the DPP’s policy on when to prosecute was defective, because it did not make it clear whether those who assisted suicide but had no personal connection with the individual concerned would be likely to be prosecuted. The court found that there was no duty to clarify the guidance, for reasons including the impracticality of coming up with guidelines which embraced all people who might fall into the class in question. Similarly, no such duty applied to the SRA and GMC.

Incompatibility with article 8?

It was further argued that the blanket ban on assisted suicide, provided by section 2 of the Suicide Act 1961, should be declared incompatible with article 8. This was rejected, the matter already having been considered in case law and the question of assisted suicide being one for parliament.

The court was also asked to consider whether the mandatory life sentence of assisted suicide was incompatible with the European Convention on Human Rights, a question it did not decide given that no one was facing such a sentence in this case.

Unsurprising outcome

The decision is in many aspects unsurprising. The courts have long maintained that the question of the legalisation of assisted suicide is a matter for parliament. It is a highly controversial matter and would require a major change in the law of homicide.

This has to be the right approach as a matter of jurisdiction and the separation of powers, but it is understandable that supporters of the creation of a legal right to die bring such challenges. They raise public consciousness and stimulate important debates.

A change in legislation to decriminalise assisted suicide is very unlikely to come about any time soon: the issue would be too politically divisive for any major party to support it.

However, real change could come about with amendment to the DPP’s policy (which the DPP is resistant to doing). If in practice it was evident that prosecutions would not be brought against certain volunteers, this would make it practically easier and less risky for people to assist suicide.

The court is quite right that amending the DPP’s policy so as to cater for well-meaning volunteers generally would be very challenging, if not impossible. However, if an identifiable group could be defined, this development would have the potential to provide real help for people in Martin’s situation, who do not have family assistance in committing suicide.

Support groups for assisted suicide would be an obvious source for such volunteers and, provided that the DPP’s policy incorporated adequate safeguards to protect those vulnerable to being pressured into suicide, this could be a realistic way of easing the extraordinarily difficult circumstances those with ‘locked-in’ syndrome and similarly debilitating conditions endure.

A change in the guidance to allow healthcare professionals to assist suicide would be very unlikely. The ethical issues involved in allowing doctors to take active steps to end life in these circumstances would be hugely complex and the fear of another tragedy such as that perpetrated by Dr Harold Shipman would make this an unattractive option for many.

Tony Nicklinson and his supporters are likely to want to fight on, to continue to put pressure on legislators and prosecuting authorities to clarify and change the law, and have confirmed that they intend to appeal the decision.

For the full judgment, see https://www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/nicklinson-judgment-16082012.pdf.

Isabel McArdle is a barrister at 1 Crown Office Row Chambers