Guest post by Alexandra Mullock, University of Manchester

The Supreme Court, in the long awaited verdict in the Nicklinson appeals, essentially delivered both good news and bad news for all concerned. The appeals by Jane Nicklinson (continuing her late husband’s battle), Paul Lamb and AM (known as Martin) were all rejected. The DPP won her appeal against the court of Appeal’s decision that a more specific prosecution policy was needed. However, the upshot of this highly unusual judgment is that the losers have good reason to feel quite cheerful and the DPP has won a rather hollow victory.

To recap on the facts, the late Tony Nicklinson, who suffered from locked-in syndrome following a catastrophic stroke several years ago, began his legal challenge in the High Court with an application for a declaration that it would be lawful for a doctor to give him a lethal injection or to assist him in terminating his own life by virtue of the common law defence of necessity. If that was not possible, Mr Nicklinson asked the court to declare that the current law (regarding murder and assisting in suicide under the Suicide Act 1961) was incompatible with Article 8 of the Convention. The High Court rejected all these arguments. Immediately following his defeat, Mr Nicklinson refused all food and medical treatment, dying a few days later. However, Mrs Nicklinson continued her late husband’s legal battle and she was joined in the Court of Appeal by another man, Paul Lamb, who applied for the same relief as Tony Nicklinson. A third man, Martin, wants a carer or health care professional to assist him to travel to Dignitas in Switzerland in order to have an assisted suicide, but, in view of the current prosecution policy – which places professional assistors at greater risk of prosecution – such a person would run the risk of a criminal prosecution. Consequently, Martin asked for an order to compel the DPP to clarify and modify her policy so that a compassionate carer, doctor or nurse could assist him. Martin’s claim also failed in the High Court but unlike the others, he won a partial victory in the Court of Appeal.

Following media reports that the Supreme Court Justices were at loggerheads over their verdict, the judgement reflects this conflict and is remarkable in a number of ways. Most significantly, although the justices rejected the appeal of Nicklinson and Lamb (7:2), five of the justices, including Lord Neuberger, agreed that it would be possible to make a declaration of incompatibility (under section 4 Human Rights Act 1998) in relation to the ban on assisted suicide in the future, if Parliament fails to satisfactorily address this issue. Of the five, only Lady Hale and Lord Kerr were minded to make the declaration of incompatibility in this case. The other four justices held that a declaration should not even be considered, as this is a matter entirely for Parliament. But although Lady Hale and Lord Kerr were unable to persuade their colleagues that the time was right to issue a declaration of incompatibility in order to tip the scales in favour of the appellants, much of the rhetoric of the three justices who sat in the middle ground indicated broad support for possible legal change. Lord Neuberger indicated that the grave and significant interference with the appellants’ Article 8 rights could not necessarily be justified in order to continue a blanket ban on assisted suicide. He highlighted the significant moral and legal distinction between euthanasia (murder), which the original application was primarily focused on, and assisting in suicide. Indeed, one of the weaknesses of the appellants’ case was that it had been conceived primarily as a challenge to the law on murder, which was always a forlorn hope. Only later – and somewhat superficially – was the challenge realigned in order to focus primarily on the Suicide Act 1961. Comparing the issue to other end-of-life dilemmas, Lord Neuberger suggested that withdrawing life sustaining treatment, which the current law permits, is a ‘more drastic interference in that person’s life and more extreme moral step’ (para.94) than assisting in a suicide where the person wanting to die is clearly in command. He also suggested that notwithstanding concern about weak and vulnerable people who may not possess “a voluntary, clear, settled and informed decision to commit suicide”, but who may feel indirect or direct pressure to ask to die, a scheme featuring regulatory safeguards and a before-the-event appraisal of the request to have an assisted suicide could be a feasible and preferable alternative to the current approach, which leans against prosecution and assesses the facts surrounding the assisted suicide only retrospectively.

Lady Hale, in dissenting alongside Lord Kerr, argued that notwithstanding the wide margin of appreciation conferred in such sensitive moral issues, there is sufficient reason to believe that the Suicide Act is not compatible with the Convention. Not because it provides a general prohibition, but because it allows no exceptions. Comparing the request made by the late Mr Nicklinson and Paul Lamb to other end-of-life decisions made by the courts, such as in Ms B’s successful appeal to have life-sustaining treatment (ventilation) withdrawn, Lady Hale pointed out that although the acts/omissions distinction makes some legal sense, it must often make little sense to those affected who are denied a choice. Also, for people looking after them,

it will be a mystery why they must switch off the machine or withdraw artificial nutrition and hydration if this is want the patient wants, but they may not painlessly administer a lethal dose of medication which the patient wants just as much. (para.304)

On the fundamental justification for interfering with Article 8 rights for the protection of vulnerable people (Pretty v UK), Lady Hale stated that while this concern is sufficiently important to justify a general ban, it is ‘difficult to accept that it is sufficient to justify a universal ban’ (para. 313). Lord Kerr agreed, saying there is no rational connection between the ban on assisted suicide in order to safeguard the vulnerable – who may be able to commit suicide unaided in any case – and the grave interference with Article 8 for those who are unable to act unaided. He also argued that if the court was to make a declaration of incompatibility they would be doing no more that they are authorised to do under the Human Rights Act.

On the appeal of the DPP and Martin’s cross appeal on the issue of how the prosecution policy applies to a health care professional, the court unanimously agreed that there should be no order to compel the DPP to provide more specific policy guidance. However, given that evidence proved by the DPP during this legal challenge indicated that the current policy is inconsistent with her approach in practice, the court was very clear that this now needs to be addressed. Lord Neuberger stated:

If the DPP’s policy does not mean what she intends it to mean, and this has been made clear in open court, then it is her duty, both as a matter of domestic public law and in the light of the Strasbourg jurisprudence as a “public authority”, to ensure that the confusion is resolved. (para.143)

So, the DPP must, or at least should, now review the terms of the 2010 policy. And given that the problem with the current policy clearly relates to the apparent heightened risk of prosecution faced by health care professionals, which has a particular impact on people in Martin’s position, we should expect the amended policy to address this problem.

The 132 page judgement also includes discussion of the sanctity of life, slippery slope arguments and evidence from other jurisdictions, not to mention a myriad of constitutional legal questions regarding the limits of the courts’ deference to the legislature, and contemplation of human rights issues, which will have an impact far beyond this particular ethico-legal dilemma. Most crucially, however, we now await Parliament’s response to the challenge thrown down by the Supreme Court. The House of Lords is poised to debate Lord Falconer’s Assisted Dying Bill 2013, but this will not address the case concerning Nicklinson, Lamb and Martin because the Bill would only provide physician-assisted suicide for terminally-ill people expected to die within six months. Of course, those who are eligible for assisted dying are also vulnerable to it and so the six-month life expectancy provision is a sound way of restricting the vulnerable group. But as Lord Neuberger pointed out, those who face many years, rather than just a few months, of suffering may have a much stronger case for being assisted in suicide. Interestingly, some of the judgments included suggestions of how such requests to die might be assessed. Lady Hale, for example, suggested it might be a matter for the High Court in order to ensure the death wish is voluntary, clear, settled and informed. By contrast, Falconer’s Bill envisages a system where doctors assess the request. Ultimately, it may be that in order to prevent the ongoing interference with Convention rights, while at the same time safe guarding the vulnerable, a highly regulated two tier system is necessary. Doctors could act as gate-keepers to assisted suicide for the terminally ill who are expected to die imminently, and a High Court Judge could determine the fate of people who have much longer to suffer but much more life to forfeit.