R (on the application of Nicklinson and another) v Ministry of Justice and others [2014] UKSC 38
Outline
Introduction:
R (on the application of Nicklinson and another) v Ministry of Justice and others [2014] UKSC 38 is a case about three severely disabled males, Tony Nicklinson, Paul Lamb and Martin, that sought assistance in their own suicide as a result of their ever deteriorating condition. The case centered around a declaration under section 4 of the Human Rights Act 1998 that the present law on assisted suicide was largely incompatible with their right to respect for their private lives. Both cases happened to fail in the High Court, although by a majority, Martin had succeeded in the Court of Appeal on a clarification of the DPP’s policy.
The Facts:
N, L and M suffered from catastrophic physical disabilities but their mental processes were unimpaired. Given that their mental processes were unimpaired, N, L and M frequently communicated their desire to die, but they could not end their lives without third party assistance. N, L and M could not ask for third party assistance to assist in their suicide, under the Suicide Act 1961 s.2, which imposed criminal liability on those who assisted suicide. Court of Appeal: Rejected the claim made by N and L that the assisted suicide would be or lawful and or that the current state of the law was incompatible with art.8 of the ECHR. Separately, Martin sought clarification of the DPP’ policy regarding when she will prosecute people for the offence of assisted suicide in the Court of Appeal, as the written policy does not make clear of the position regarding people who are not friends and family; for example a doctor or carer.
The Decision and The Ratio:
The Supreme Court had formally rejected all three claims, but showed significant process towards liberalization of the law for people who want to end their lives. Unfortunately for the claimants, it was held that Section 2 did not impose what could be regarded as a “blanket ban” on assisted suicide according to the ECHR; which would take it outside the margin of appreciation. It was held that it was for the Convention states to decide whether their own laws on assisted suicide actually infringed art. 8, and thus the domestic courts had constitutional competence to formally decide whether or not s.2 actually infringed art.8; P (A Child) (Adoption: Unmarried Couples), Re [2008] UKHL 38 applied.
Regarding criminalizing assistance with suicide the Court held that it was empowered to declare the statute as incompatible with Article 8 of the ECHR. Supreme court had also given Parliament opportunity to consider legislating the original statute, and those involved in the case to end their lives. The Supreme Court stated that they expected Parliament to debate legislation ‘in the near future’, and threatened to issue a declaration of incompatibility if not. Following this, some of the Justices provided comments on how a new legislation scheme may function, referencing that it would unsatisfactory to limit those who were terminally ill and perhaps that the High Court should be empowered to consider individuals’ applications to be permitted assistance to die. Lord Neuberger supported these statements, claiming that there is significant “justification in assisting people to die if they have the prospect of living for many years a life that they regard valueless, miserable and often painful, than if they have only a few months left to live.”
With reference to the DPP’s policy regarding when she will and will not prosecute for assistance in suicide, the DPP made a statement that clarified her previously unclear policy. The statement provided that an individual member of a profession or a professional carer who has no previous authority/association over the person wishing to die, who is brought in for the simple purpose of assisting suicide after the individual in question ahs reached their own conclusion to end his or her like, would be unlikely to be prosecuted. It was concluded that the DPP’s policy does not mean what is intended to and that it is her duty to review her policy in the light of this aspect. It was further stated by the court that the court’s powers could be invoked if the DPP does not do this.
Evaluation
Effectively, Lord Neuberger gave what was effectively a leading-minority, in the sense that his comments lead the basis for the minority view, highlighting the issues with the current state of the law on assisted suicide and the right to respect private life. Whilst Lord Mance and Wilson agreed with Lord Neuberger, Lady Hale and Lord Kerr would have gone even further and proposed a declaration of incompatibility. Lord Hughes, Reed Sumption, and to a lesser extent, Lord Clarke held an approach that was less favourable to the claimants.
Conclusion and Subsequent Developments:
The case at hand is regarded as one of the most constitutionally significant and interesting judgments under the HRA 1998 in recent years, given its social importance and the potential changes to the law on assisted suicide that the case may foreshadow, essentially debating whether or not the current law is incompatible with Article 8 of the HRA, and on the face of it preventing N, L or M from lawfully obtaining assistance to end their life may indeed seem like a major incursion into the “autonomy value lying at the heart of right to to respect for private life.” But it was further acknowledged throughout the case that the legalization of assisted suicide would be risky and that it’s criminalization is a necessary defence in the interests of vulnerable people who may be pressured into assisted suicide.
Assisted suicide has been legalized by statute in other jurisdictions including the Netherlands, Belgium and the US state of Oregon. This leads many to believe that the UK is behind on the liberalization of assisted suicide for those who suffering a terminal illness with extremely poor quality of life. Developments from the case R (on the application of Nicklinson and another) v Ministry of Justice and others [2014] UKSC 38 aim to combat the predicament of terminally ill patients who cannot end their lives by refusing treatment, such as N L and M who have progressive paralysis but retain sensation and mentation. A change in legislation is required to ensure that such patients are given the respect for autonomy that they deserve, to put them on an equal level to those who have the ability to influence the manner of their death by withholding life-sustaining treatment.
It is clear that although assisted suicide carries a maximum of 14 years imprisonment in England, courts and juries have “demonstrated a reluctance to convict, most specifically in relation to those travelling abroad to accompany a terminally ill person seeking assisted dying.” Through this statement alone it is clear that the current state of the law needs to observed and potentially amended. Fear is the largest factor in postponing the amendment of the suicide act, with many scared of the consequences of easy access to assisted suicide, some claim the idea to be “radical”.
Research has shown that those who are in favours of assisted suicide often cite reasons that reflect the fear and anticipated pain of the terminally ill; and their loss of control and cognitive impairment. Those who opposed the change to UK law often focus on fear of involuntary euthanasia, and or cite religious reasons and the potential for the new legislation to be open to abuse. There is evidence to support the claim that specific “safeguards” to stop the exploitation of legal assisted suicide do not work. Prevention methods such as explicit consent from the person requesting euthanasia and administration only by physicians are reportedly repeatedly ignored. For example, “900 people annually are administered lethal substances without given explicit consent” and almost “50% of cases of euthanasia are not reported.”
It should be acknowledged however that as a result of the case, those who are seeking help with ending their lives now have a development regarding the comments made on the policy from the DPP. It was explained in the hearing that compassionate help from strangers including professionals is no more likely to be prosecuted. This is of major significance for those who have no family or friends who are available to help and thus hints at a more liberalized approach to the law regarding assisted suicide in the future.
Bibliography:
Case Law/Statutes:
European Convention of Human Rights 1950 art. 8
R (on the application of Nicklinson and another) v Ministry of Justice and others [2014] UKSC 38
Suicide Act 1961 s.2
Online Articles/Journals
Butler-Cole V and others, ‘Short note: Assisted suicide cases fail in the supreme court’ (2006) <http://www.lexology.com/library/detail.aspx?g=0f75dec9-0389-42bc-946c-1f58d34c1cdb> accessed 16 December 2016
Chapple A and others, ‘What people close to death say about euthanasia and assisted suicide: A qualitative study’ (2006) 32(12) Journal of Medical Ethics <http://jme.bmj.com/content/32/12/706.short> accessed 16 December 2016 706–710
JJ S and PMC E, ‘Fifty years on: Against the stigmatising myths, taboos and traditions embedded within the suicide act 1961 (UK)’ (2011) 18(4) Journal of law and Medicine <http://europepmc.org/abstract/med/21774275> accessed 16 December 2016 798–810
PJ, ‘Legalizing euthanasia or assisted suicide: The illusion of safeguards and controls’ (2011) 18(2) Current Oncology <http://current-oncology.com/index.php/oncology/article/view/883> accessed 16 December 2016 38–45
“The right to die: deference, dialogue and the division of constitutional authority”, https://publiclawforeveryone.com/2014/06/26/the-right-to-die-deference-dialogue-and-constitutional-authority/, Professor Mark Elliot; June 26, 2014