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Supreme Court decision: the right to die

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R (on the application of Nicklinson and another) (Apellants) v Ministry of Justice (Respondent); R (on the application of AM) (AP) (Respondent) v The Director of Public Prosecutions (Appellant) [2014] UKSC 38

The Supreme Court has given judgment in the above appeals concerning the contentious issue of the right to die.

Section 2 of the Suicide Act 1961 provides that encouraging or assisting a suicide is a criminal offence and can result in a maximum sentence of 14 years imprisonment

It was argued in these appeals that the law concerning assisted suicide infringes upon Article 8 of the European Convention on Human Rights (ECHR), which protects the right to private and family life. This was argued on the basis that Article 8 confers a right on an individual to freely decide by what means and at what point his or her life will end.

The appeals concern the family of the late Tony Nicklinson (sufferer of locked-in syndrome resulting from a stroke in 2005), Paul Lamb (paralysed by a road accident in 1991) and an individual known as Martin (sufferer of locked-in syndrome resulting from a brainstem stroke in 2008).

Mr Nicklinson passed away in 2012 but his wife continued the case on the basis of public interest and the importance of the issues raised.

Mr Lamb appealed alongside to seek declarations that it would be lawful for a doctor to assist in the termination of life, or, if that was refused, that the current law is incompatible with Article 8 ECHR.

In another appeal the Director of Public Prosecutions appealed the Court of Appeal’s decision that the ‘Policy for Prosecutors in respect of Cases of Encouraging or Assisting Suicide’ (2010) was insufficiently clear and Martin cross-appealed seeking assurance that the 2010 Policy be amended to enable carers to assist with suicide through Dignitas (Switzerland) without the threat of prosecution.

The appeals were heard by nine judges. By a majority of seven to two, the first appeal of Mrs Nicklinson and Mr Lamb was dismissed whilst the second appeal brought by the Director of Public Prosecutions was allowed unanimously and the cross-appeal brought by Martin was dismissed.

In relation to the first appeal, the compatibility of the present law on assisted suicide with Article 8 ECHR was discussed.

It was unanimously agreed by the judges that the responsibility of deciding this issue fell within the remit of the courts of the United Kingdom. Five of the nine judges concluded that that court had the ‘constitutional authority’ to make a declaration of incompatibility on a general prohibition on assisted suicide and two of these five expressed their willingness to make the declaration immediately. Four of the judges indicated that Parliament are more suitably placed and qualified than the courts to assess compatibility. Thus, in light of this, Parliament should be provided with the opportunity to consider this issue.

Despite having their appeal dismissed, both Mrs Nicklinson and Mr Lamb have expressed how they believe this is a positive step in their ongoing grapple to alter the law relating to assisted suicide.

In relation to the second appeal, the 2010 Policy was deemed lawful since it is not for the court to dictate the content of the 2010 Policy. It was determined that the discretion awarded to the Director of Public Prosecutions to exercise judgment over the features of the system of prosecution is constitutionally necessary in public interest. Evidence presented during the hearing clarifying the operation of the policy was also referred to.

The implications of the decision of these appeals on the present state of the law concerning assisting suicide remain to be seen, but commentators have noted that while the appeals were refused, this was done in a gentle and compassionate manner given the subject matter. A clear signal was also given that this is an issue that Parliament need to grapple with.

By Stephanie Murphy, human rights law team

At Stephensons we offer advice and assistance in relation to all aspects of cases concerning human rights. Please do not hesitate to contact our specialist team on 01616 966 229 for further information.