The ‘right’ to die: Back in Court

The Court of Appeal has rejected an appeal by a paralysed man, Paul Lamb, which sought to alter the law on assisted suicide. Paul Lamb had taken on the case originally brought by Tony Nicklinson. Mr Nicklinson died last year.

Jane Nicklinson, Tony Nicklinson’s widow, supported the appeal against the earlier judgment which she said condemned her husband to live a life that he no longer wished to lead. Both wanted to overturn the prohibition on doctors helping patients to end their lives within the UK.

Mr Lamb attempted to invoke his rights under the ECHR (European Convention on Human Rights.) Specifically, he argued that the blanket legal prohibition violated his right to private and family life under Article 8 of the Convention. It was his submission that English law should afford a doctor who helps end his patient’s life, a defence of necessity, when the doctor helps the patient end his life within England and Wales.

Dismissing the appeal, the three judge panel, argued that the current prohibition was not a disproportionate interference with the appellant’s Article 8 rights. The judges reiterated that any change to the law on assisted suicide had to be a matter for Parliament.

However, by a 2-1 majority, the Court of Appeal did accept the appeal of a man, only referred to in the judgment as “Martin”, which sought clearer guidance on whether a doctor or nurse who accompanied Martin to the Dignitas Clinic is Switzerland would be prosecuted upon returning home. This builds upon earlier guidance issued by the DPP that indicated that family members who accompanied relatives to commit suicide abroad would not be prosecuted upon returning home.

Lords Justice Dyson and Elias said: “In our judgment, the [DPP’s] policy is in certain respects not sufficiently clear … in relation to healthcare professionals. It is not surprising that they are reluctant to assist victims to commit suicide.”… It is not impossible or impractical to amend the policy so as to make its application in relation to cases [involving those who are not members of a patient’s immediate family] more foreseeable than it currently is.”

Much now depends upon the DPPs response. It is not explicitly clear from Lord Justice Dyson’s and Lord Justice Elias’s judgment that they are calling for the DPP to issue the same advice to doctors and nurses, as they do in relation to family members. However, I would suggest that is the tenor of the judgment. While assisted suicide remains a criminal offence in England and Wales, it is possible that the Court of Appeal, by prompting the DPP to issue guidance with regards to when and when they not prosecute, are in effect carving out exceptions to the prohibition (at least when the applicant seeks help to end  his or her life outside of England and Wales.)

It is likely that the case will proceed to the Supreme Court.

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