Three judges in the Administrative Court (Toulson LJ, Royce and Macur JJ) have rejected the applications of Mr Tony Nicklinson and an anonymous claimant, “AM” to allow doctors to end their lives without fear of prosecution.

In R (Nicklinson) v Ministry of Justice & Ors: R (AM) v DPP and Ors [2012] EWHC 2381 (Admin) the claimants both suffer “locked in syndrome”: both are totally dependent on their carers, both can communicate only by eye-movements detected by their computers and  both wish to die with dignity and without further suffering – but their condition makes them incapable of ending their own lives. Neither is terminally ill and they both face the prospect of living for many years.

AM would be capable of physically-assisted suicide but only if someone else was prepared to commit an offence under s 2 Suicide Act 1961. He could travel to the Dignitas clinic in Zurich without an offence being committed under Swiss law if his wife was willing to help him to do so, but she is not. He sought an order that the DPP should clarify his published policy so that other people, who may on compassionate grounds be willing to assist AM to commit suicide at Dignitas, would know “whether they would be more likely than not to face prosecution in England.” (para 9). He also sought declarations in relation to the General Medical Council and Solicitors Regulation Authority that, if the order in respect of the DPP were granted, a doctor or solicitor who played a part in helping him to commit suicide via Dignitas without facing risk of prosecution under the DPP’s clarified policy should not then incur professional disciplinary proceedings. Should his claim against the DPP fail, he sought a declaration that s 2 of the Suicide Act violated Article 8 ECHR (respect for private and family life) (para 10).

Mr Nicklinson sought a declaration that, on grounds of necessity, it would not be unlawful for his GP or another doctor to terminate or to assist the termination of his life: and further or alternatively that the current law of murder and/or of assisted suicide violated Article 8 ECHR and was contrary to ss 1 and 6 Human Rights Act 1998 insofar as it criminalised voluntary active euthanasia and/or assisted suicide (para 18).

Toulson LJ (with whom Royce and Macur JJ concurred) set out the issues – and the answers – as follows:

1. Is voluntary euthanasia a possible defence to murder? No: nor does Article 8 require there to be a defence of voluntary euthanasia to a charge of murder. “To do so would be to go far beyond anything which the Strasbourg court has said, would be inconsistent with the judgments of the House of Lords and the Strasbourg court in Pretty, and would be to usurp the proper role of Parliament” (para 87).
2. Is the DPP under a legal duty to provide further clarification of his policy? No: it would not be right to require the DPP to formulate his policy in such a way as to meet the foreseeability test advocated by counsel for AM (paras 139 – 140).
3. Alternatively, is s 2 of the Suicide Act incompatible with Article 8 ECHR in obstructing the claimants from receiving assistance to commit suicide? It is not; but, in any event, if it is to be changed that is a matter for Parliament not for the courts (para 148).
4. Are the GMC and the SRA under a legal duty to clarify their positions? No, given that the claim for an order in respect of the DPP had failed (para 145).
5. Is the mandatory life sentence for murder incompatible with the Convention in a case of genuine voluntary euthanasia? (para 26).

 On that last point Toulson LJ declined to rule:

“There is strong evidence (considered by the Law Commission in its review of the law of murder) that the public does not regard the mandatory sentence of life imprisonment as appropriate in cases of genuine voluntary euthanasia, and there have been calls for it to be changed, but whether it is incompatible with the Convention is a matter which the court should decide only in a case in which it is necessary to do so. The question might arise if a person were convicted of murder and sentenced to life imprisonment in a case of genuine voluntary euthanasia carried out from a compassionate motive, but it is not necessary to decide the question in this case because it cannot realistically affect [Mr Nicklinson’s] position whether a doctor, or other person, who carried out an act of voluntary euthanasia would be exposed to such a grave penalty or lesser punishment. On any view, the risk of conviction for homicide is likely to be a strong deterrent for any person, especially a professional person” (para 149).

 He concluded that, however distressing the situation of the two claimants, to accede to their requests would mean changing the law:

“These are not things which the court should do. It is not for the court to decide whether the law about assisted dying should be changed and, if so, what safeguards should be put in place. Under our system of government these are matters for Parliament to decide, representing society as a whole, after Parliamentary scrutiny, and not for the court on the facts of an individual case or cases. For those reasons I would refuse these applications for judicial review” (para 150).

To which Macur J added that the issues raised by the two applications “…are conspicuously matters which must be adjudicated upon by Parliament and not Judges or the DPP as unelected officers of state” (para 152).

Comment: Given the tragic circumstances, this judgment will no doubt be subjected to a considerable degree of analysis: Rosalind English has already made a start on UKHRB. The first question in one’s mind, however, is, “will it be appealed?”.