I'm here to discuss the Supreme Court's recent
decision in Nicklinson. Technically the title
of the judgment is: R (on the application
of and another) (Appellants) v Ministry of
Justice (Respondent); R (on the application
of AM) (AP) (Respondent) v The Director of
Public Prosecutions (Appellant); and R (on
the application of AM) (AP) (Respondent) v
The Director of Public Prosecutions (Appellant)
again. Judgment given on 25th June 2014, it's
a very long judgment, 132 pages, nine judges
and, for the purposes of this presentation,
I'm not going to attempt to discuss all the
implications of the case. I'm going to argue
why I think that Lady Hale, who was one of
two dissenting judges in the Supreme Court,
was right.
What's the case about? Well, in part it's
about the right to die, in part the application
of the European Human Rights Law in the domestic
context. So let's start with that. Article
8 of the European Convention on Human Rights
provides for the right to respect for private
and family life. At the first paragraph we
learn, everyone has the right to respect for
his private and family life, his home and
his correspondents. But as with many articles
the second paragraph has the reservations,
if you like. There shall be no interference
by a public authority with the exercise of
this right except such as is in accordance
with the law and is necessary in a democratic
society in the interests of national security,
public safety or the economic wellbeing of
the country 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.
So, clearly this is not an absolute right
it's hedged around with restrictions and limitations.
Does it mean that you have a right to die?
There have been many difficult cases argued
both at home and across Europe. The European
Court of Human Rights has been edging towards
recognising a right to die, so I'll just give
one quote from one recent case, Harson Switzerland
decided in 2013. The court said at paragraph
51, an individual's right to decide by what
means and at what point his or her life will
end, provided he or she is capable of freely
reaching a decision on this question and acting
in consequence, is one of the aspects of the
right to respect for private life within the
meaning of Article 8 of the Convention.
So, this seems to me to be right. You should
in principle be able to choose for yourself
how you spend the last stage or stages of
your life. The state should not put unreasonable
or unjustified, or disproportionate obstacles
in your way. Lady Hale says at paragraph 312
of the decision of the Supreme Court in this
case, Nicklinson, that protecting the vulnerable
is a reason to justify a general ban on assisting
suicide. But it's not sufficient to justify
a universal ban that's the rub, the difference
between a general ban and a universal ban.
The problem starts with Section 2 of the Suicide
Act 1961 which makes it a criminal offence
to encourage or assist the suicide of another
person. The Suicide Act 1961 decriminalised
suicide but it remains an offence to encourage
or assist someone else's suicide. Should it
be an offence for anyone in any circumstances
to help someone commit suicide? That's the
question or one of the questions that the
nine judges were considering in this case.
They considered a series of questions which
included the constitutional and some might
say somewhat technical questions of whether
it was for the judiciary to do this or whether
they should leave the question to parliament.
By a majority of seven to two they voted not
to issue a Declaration that Section 2 is incompatible
with Article 8. This is all about the Human
Rights Act 1998 which incorporated the European
Convention on Human Rights into domestic law
in a rather clever way. Parliament recognised
that judges aren't elected and so it didn't
give them the power to strike down laws which
they believe are in breach of our fundamental
rights. All the judges can do is issue something
called a Declaration of Incompatibility. The
judges in this case were divided over various
questions in relation to the possibility of
a Declaration of Incompatibility; in particular
the majority thought that now was not the
time to issue one, not in this case.
I'm with the minority, Lady Hale and Lord
Kerr, they aren't so very radical. All they
would have done is issue a Declaration of
Incompatibility which would have forced parliament
to decide what to do next. It's important
to stress I think that they were not telling
parliament what to do. If they'd had their
way, if they had been the majority, parliament
would now have had three options. The very
unlikely option is that it could have amended
Section 2 of the Suicide Act by way of what's
called the Remedial Order under Section 10
of the Human Rights Act 1998. That's a very
unlikely option I think because it would have
been unthinkable for parliament to make this
very controversial issue to change primary
legislation by secondary or delegated legislation.
The second option for parliament would have
been to amend the law by a new act of parliament
and that would I think be my, well it would
certainly be my preferred option and I think
Lady Hale's. Parliament though could of course,
even with a Declaration of Incompatibility,
do nothing. That might be because it didn't
agree that the present law was incompatible
or much more likely because as a sovereign
parliament it considered that an incompatible
law is preferable to the alternative.
So, if our current law is not compatible with
Article 8 of the European Convention of course
I would argue the courts have a duty to say
so. Why do the two judges in the minority
say that the law is incompatible? Well, because
it's too rigid. Section 2 of the Suicide Act
doesn't allow for any exceptions, which means
that no-one can legally help Mr Nicklinson
and people like him to die. According to Lady
Hale, making people like him, or Mr Lamb,
or Martin, the third appellant in this case,
live on is itself a form of cruelty.
Let me hesitate for a moment and remind you
about some of the facts of the case. Mr Nicklinson
had suffered a catastrophic stroke some nine
years ago since when he was completely paralysed
save that he could move his head and his eyes,
and for many years he had wanted to end his
life but couldn't do so without assistance
other than by self starvation, which he said
was a protracted, painful and distressing
exercise. Mr Lamb, another of the appellants,
since a car crash in 1991 has been unable
to move anything except his right hand. His
condition is irreversible and he wishes to
end his life.
For Lady Hale forcing these people to live
on is itself a form of cruelty. She says the
current universal prohibition is a disproportionate
interference with their right to choose the
time and manner of their deaths. It goes much
further than is necessary to fulfil its stated
aim of protecting the vulnerable. It fails
to strike a fair balance between the rights
of those who have freely chosen to commit
suicide, but are unable to do so without some
assistance and the interest of the community
as a whole. Lady Hale said that paragraph
317.
Today it's actually difficult to know whether
someone who actually helps someone else in
this situation to die would actually be prosecuted.
The courts have already created a certain
leeway, a certain flexibility which might
be seen by some people as a slippery slope.
I'll paraphrase what Lord Sumption says when
he summarises the current position at paragraph
255 of his judgement. A person who is legally
and mentally competent is entitled to refuse
food and water and to reject any invasive
manipulation of his body or other form of
treatment, including artificial feeding even
though without it he will die. If he refuses
medical practitioners must comply with his
wishes and a patient may express his wishes
on these points by an advance decision or
living will. A doctor may also give objective
advice about the clinical options available
such as sedation or other palliative care
which would be available if a patient were
to reach a settled decision to kill himself.
A doctor is not criminally liable merely because
he or she agrees in advance to relieve the
pain that a patient is suffering. Medical
treatment intended to relieve pain and discomfort
is not unlawful only because it has the incidental
consequence, however foreseeable, of shortening
the patient's life. Those are Lord Sumption's
words. This is the controversial doctrine
of double effect.
It's also important to point out that prosecutions
for encouraging or assisting suicide are very
rare. According to the Supreme Court, Lord
Sumption again, between 1998 and 2011 a total
of 215 British citizens appear to have committed
suicide with medical assistance at the Dignitas
Clinic in Switzerland. Not one case has given
rise to prosecution. Cases of assisted suicide,
euthanasia, are periodically reported to the
police but there's only been one recent prosecution
for assisting suicide.
So, this question, this problem is not going
to go away. I've been interested in the issue
ever since the case of Tony Bland in 1993.
Tony Bland was a 17 year old who was very
seriously injured in the Hillsborough Stadium
disaster in 1989. Since April 1989 he'd been
in a persistent vegetative state and the hospital
supported by his parents sought the court's
permission to stop the treatment which was
keeping him going, the life sustaining treatment,
including feeding him. The House of Lords
held in that case that withdrawing the artificial
feeding through the nasogastric tube and declining
antibiotic treatment if and when infection
appeared was lawful. In effect he was allowed
to starve to death, which I suspect must have
been an unpleasant situation for his family
to watch. I think the House of Lords was right
to let him die. That is, the House of Lords
was right to say that the doctors and nurses
involved in his care would not be guilty of
murder in allowing him to die.
I was and I remain critical of the reasoning.
Can you really distinguish, morally and legally,
letting someone die from killing them? The
House of Lords drew then what I think is an
artificial divide between killing and letting
die, which as Lady Hale points out in this
much more recent case, she points out it means
that those people who can breathe without
artificial help are denied a choice which
is available to those who cannot breathe alone.
Turning off life support seems to be deemed
to be letting die and so okay.
So, why not change the law and make it clear
that just sometimes people should be allowed
to help other people die? Lady Hale points
out that it would not be beyond the wit of
a legal system to devise a process for identifying
those very few people who should be allowed
assistance to end their own lives. Of course
there would have to be essential safeguards.
Her words echo much of what has been written
by many people. I wrote an article 20 years
ago in the Liverpool Law Review, Tim Helm,
Nicola Padfield's "Setting Euthanasia on the
Level", easily available on the internet,
which proposed a system very similar to that
which is proposed by Lady Hale. Let's hope,
I hope, that parliament will be persuaded
to revisit this very important area.
Perhaps I can also finish this clip with a
PS to any potential law students who are listening.
If you're wondering about studying law, I
really recommend a visit to the Supreme Court,
it has really interesting, excellent displays
and a great cafe just next door to Westminster
Abbey and over the square from Parliament,
but check first on its website to see what's
going on. Thank you.
