Comment: Almost two years after his death, has Tony Nicklinson won?

Today’s decision by the Supreme Court (or see the press summary) in the case begun by Tony Nicklinson dismissed the appeal from last year’s Court of Appeal decision brought by his widow Jane and Paul Lamb. The appellants were challenging the criminal prohibition on assisting a suicide in s.2 of the Suicide Act 1961 on the ground that it is inconsistent with their right to respect for their private and family life under Article 8 of the European Convention on Human Rights. All parties were in agreement that end-of-life decisions including decisions to seek assistance with suicide are covered by Article 8(1) (consistent with the decision of the European Court of Human Rights in Pretty v. UK, in which the Strasbourg Court found that Dianne Pretty’s Article 8(1) right to respect for her private and family life was engaged, and with the subsequent decision of the House of Lords in Purdy v. DPP). A key issue was therefore whether that engagement could be justified under Article 8(2)

as … in accordance with the law and … necessary in a democratic society … for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others

The government provided the same justification as used in the Pretty case (Pretty v UK [76]):

to safeguard life by protecting the weak and vulnerable and especially those who are not in a condition to take informed decisions against acts intended to end life or to assist in ending life.

Five of the nine justices found that the Supreme Court has the authority to declare s.2 incompatible with Article 8. Two of them (Lady Hale and Lord Kerr) would have made such a declaration in this case; the remaining three decided not to make such a declaration at this point in time, because:

1. Parliament should be given an opportunity to consider the position first as it is the ‘preferable forum’ for resolving this issue ([190]). Interestingly, though, this group of three judges state that Parliament’s decision will not necessarily determine whether s.2 is incompatible with Article 8 ([76], [191]). Thus if Parliament considers the matter and decides not to change the status quo, the possibility exists that a majority of the Supreme Court in a subsequent case will decide that s.2 is incompatible with Article 8, possibly on the basis of a future argument that a system of prospective judicial approval of individual cases of assisted suicide would better protect the vulnerable than the status quo ([108], [123]-[125]). According to Lord Neuberger ([108]),

[a] system whereby a judge or other independent assessor is satisfied in advance that someone has a voluntary, clear, settled, and informed wish to die and for his suicide then to be organised in an open and professional way, would, at least in my current view, provide greater and more satisfactory protection for the weak and vulnerable, than a system which involves a lawyer from the DPP’s office inquiring, after the event, whether the person who had killed himself had such a wish, and also to investigate the actions and motives of any assister, who would, by definition, be emotionally involved and scarcely able to take, or even to have taken, an objective view.

(A tribunal-based prospective approval system was proposed by Terry Pratchett in 2010. Roger Brownsword, Genevra Richardson and I also explored the viability of such a proposal in a submission to the Commission on Assisted Dying in 2011.)

It is worth noting though that Lord Neuberger (at [118]) also considered that the opposite possibility remains open, namely that no declaration of incompatibility would be made by a later court:

it may transpire that, even if Parliament did not amend section 2, there should still be no declaration of incompatibility: that is a matter which can only be decided if and when another application is brought for such a declaration.

2. Another reason for the court’s refusal to reach a conclusion on incompatibility yet is that the factual record in this case was problematic. Initially, the claimant Tony Nicklinson had argued for a defence of necessity to murder which would permit voluntary active euthanasia in limited circumstances. By the time of the Supreme Court hearing, the arguments focussed only on potential incompatibility of the offence of assisting or encouraging a suicide, which a severely disabled claimant in the position of Tony Nicklinson or his successor Paul Lamb could commit using a machine triggered, for example, by blinking ([126], [128], [92]-[95], [110], [151]). The three judges who postponed a decision on incompatibility decided that there was insufficient evidence in the record on this issue and also on the issue of the risks to the weak and vulnerable posed by permitting assisted suicide in some cases ([119]-[121], [128], [175]-[177]).

Lord Falconer’s Assisted Dying Bill will be debated in the House of Lords on 18 July. The Bill, though, would not be applicable to Paul Lamb who is not terminally ill (nor would it have been applicable to Tony Nicklinson for the same reason). The challenge to Parliament posed by the majority of the Supreme Court is clear: could a system of prospective approval better protect those who are vulnerable from harm while vindicating the ‘genuine exercise of autonomy’ (Lady Hale in Purdy v DPP at [65])?

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One Response to Comment: Almost two years after his death, has Tony Nicklinson won?

  1. […] If this remains the DPP’s position, then the policy could possibly be amended to limit the applicability of the current factor 14, though Lords Mance ([193]) and Sumption ([251]) were sceptical that the policy could be so amended without rendering it internally inconsistent or incoherent. Lady Hale, though, was in favour of a more far-reaching review of the policy (at [323]), returning to an argument she made in Purdy about the role such a policy could play in ensuring that the interference with the claimants’ rights under Article 8(1) could be justified under Article 8(2) (which neatly takes us back to the other argument in this case): […]

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