The claimant had suffered a severe form of locked-in syndrome, and would wish to die. He sought a declaration that someone who assisted him in his siuicide would not be prosecuted for murder.
Held: The position in law that voluntary euthanasia was murder, and as to whether the doctrine of necessity provided a defence was long and clearly established in law, and it was not proper to depart from it by judcial law making under the guise of article 8.
Nevertheless, the Director of Public Prosecutions’ policy failed adequately under article 8 to make clear whether a helper would be prosecuted in cases where the helper had no close or emotional connection with the victim.
Lord Dyson MR and Elias LJ (majority) held: ‘Para 43(14) is particularly problematic. How does it apply in the case of a medical doctor or nurse who is caring for a patient and out of compassion is willing to assist the patient to commit suicide, but is not, as it were, in the business of assisting individuals to commit suicide and perhaps has never done so before? How much weight is given by the DPP to para 43(14) alone? And if the professional accepts some payment for undertaking the task, will that be likely to involve a finding that he or she is not wholly motivated by compassion, thereby triggering both paragraph 43(6) and paragraph 43(13)? These questions are of crucial importance to healthcare professionals who may be contemplating providing assistance. It is of no less importance to victims who wish to commit suicide, but have no relative or close friend who is willing and able to help them to do so. Suppose that (i) none of the factors set out in para 43 is present (apart from the para 43(14) factor) and (ii) all of the factors set out in para 44 are present. What is the likelihood of a prosecution in such a situation? The Policy does not say. To adopt the language of the Sunday Times case, even in such a situation, the Policy does not enable the healthcare professional to foresee to a reasonable degree the consequences of providing assistance. In our view, the Policy should give some indication of the weight that the DPP accords to the fact that the helper was acting in his or her capacity as a healthcare professional and the victim was in his or her care. In short, we accept the submission of Mr Havers that the Policy does not provide medical doctors and other professionals with the kind of steer . . that it provides to relatives and close friends acting out of compassion’.
Lord Judge CJ, dissenting, said: ‘ . . it seems clear to me that paragraph 14 addresses the risks which can arise when someone in a position of authority or trust, and on whom the victim would therefore depend to a greater or lesser extent, assisting in the suicide in circumstances in which, just because of the position of authority and trust, the person in authority might be able to exercise undue influence over the victim. As I read this paragraph it does not extend to an individual who happens to be a member of a profession, or indeed a professional carer, brought in from outside, without previous influence or authority over the victim, or his family, for the simple purposes of assisting the suicide after the victim has reached his or her own settled decision to end life, when, although emotionally supportive of him, his wife cannot provide the necessary physical assistance.
Naturally, it would come as no surprise at all for the DPP to decide that a prosecution would be inappropriate in a situation where a loving spouse or partner, as a final act of devotion and compassion assisted the suicide of an individual who had made a clear, final and settled termination to end his or her own life. The Policy . . deliberately does not restrict the decision to withhold consent to family members or close friends acting out of love and devotion. The Policy certainly does not lead to what would otherwise be an extraordinary anomaly, that those who are brought in to help from outside the family circle . . are more likely to be prosecuted than a family member when they do no more than replace a loving member of the family, acting out of compassion, who supports the ‘victim’ to achieve his desired suicide. The stranger brought into this situation, who is not profiteering, but rather assisting to provide services which, if provided by the wife, would not attract a prosecution, seems to me most unlikely to be prosecuted. In my respectful judgment this Policy is sufficiently clear to enable AM, or anyone who assists him, to make an informed decision about the likelihood of prosecution.’
Lord Judge CJ, Lord Dyson MR, Elias LJ
[2013] EWCA Civ 961, [2013] WLR(D) 326
Bailii, WLRD
European Convention on Human Rights 8
England and Wales
Citing:
Cited – Regina (on the Application of Pretty) v Director of Public Prosecutions and Secretary of State for the Home Department HL 29-Nov-2001
The applicant was terminally ill, and entirely dependent upon her husband for care. She foresaw a time when she would wish to take her own life, but would not be able to do so without the active assistance of her husband. She sought a proleptic . .
Cited – Pretty v The United Kingdom ECHR 29-Apr-2002
Right to Life Did Not include Right to Death
The applicant was paralysed and suffered a degenerative condition. She wanted her husband to be allowed to assist her suicide by accompanying her to Switzerland. English law would not excuse such behaviour. She argued that the right to die is not . .
Cited – Purdy, Regina (on the Application of) v Director of Public Prosecutions HL 30-Jul-2009
Need for Certainty in Scope of Offence
The appellant suffered a severe chronic illness and anticipated that she might want to go to Switzerland to commit suicide. She would need her husband to accompany her, and sought an order requiring the respondent to provide clear guidelines on the . .
Appeal from – Nicklinson, Regina (on The Application of) v Ministry of Justice Admn 16-Aug-2012
The claimants each suffered ‘locked in syndrome’ after catastrophic health events, and were unable to commit suicide as they would have wished. In one case, the claimant would have needed assistance to travel to a clinic in Switzerland where he . .
See Also – Nicklinson v Ministry of Justice and Others QBD 12-Mar-2012
The claimant suffered locked-in syndrome and sought relief in a form which would allow others to assist him in committing suicide. The court considered whether the case should be allowed to proceed rather than to be struck out as hopeless.
Cited by:
Appeal from – Nicklinson and Another, Regina (on The Application of) SC 25-Jun-2014
Criminality of Assisting Suicide not Infringing
The court was asked: ‘whether the present state of the law of England and Wales relating to assisting suicide infringes the European Convention on Human Rights, and whether the code published by the Director of Public Prosecutions relating to . .
At CA – Nicklinson and Lamb v United Kingdom ECHR 16-Jul-2015
The applicants, suffering life threatening and severely disabling conditions, complained of laws which would allow the criminal prosecutions of those assisting them to end their lives. . .
Cited – Kenward and Another, Regina (on The Application of) v The Director of Public Prosecutions and Another Admn 4-Dec-2015
The claimants challenged the policy issued by the DPP on assisted suicide following the Nicklinson case.
Held: The request for judicial review was refused.
Sir Brian Leveson P said: ‘It is important not to misunderstand the effect either . .
Lists of cited by and citing cases may be incomplete.
Crime, Health, Human Rights
Updated: 18 November 2021; Ref: scu.514242