The Supreme Court handed down its judgment this week in the long-running ‘Right to Die’ proceedings initiated by Tony Nicklinson.
In broad terms, Nicklinson and others had asked the court to clarify the law relating to assisted suicide. They each wished to be able to choose the manner and time of their death, but were unable due to disability to take the necessary steps themselves.
Currently anyone encouraging or assisting in a suicide may be committing a crime, though there can be no prosecution without the permission of the Director of Public Prosecutions (DPP) (s2 Suicide Act 1961). Recent cases have resulted in the DPP issuing Guidelines which tend to the conclusion that family members motivated by compassion are unlikely to be prosecuted.
However it was not clear to Nicklinson’s wife and others whether the actions of a professional (eg doctor) or paid carer would be treated similarly, if a family member was unable or unwilling to take the necessary steps, such as administering a fatal dose or making arrangements to visit Dignitas.
The Supreme Court did not grant the applicants the actual orders they sought, but their clear judgments have gone a long way towards clarifying this difficult area of law. In particular:
- They confirmed that Article 8 of the European Convention on Human Rights, guaranteeing the right to a private life, confers on an individual the right to decide by what means and at what point his life will end, provided that he is capable of freely reaching a decision.
- They agreed that Section 2 of the Suicide Act engages directly with Article 8, because it prevents a person physically unable to commit suicide from determining how and when they should die. This interference can only be justified if it satisfies the provisions on Article 8(2) as “necessary in a democratic society…for the protection of…the rights and freedoms of others”. The Court decided that it would be inappropriate for them to decide whether the two are incompatible before giving Parliament the opportunity to consider the issue.
- Lady Hale in particular noted that the Court has power to direct that a person’s wishes be carried out, for example if they should elect not to have life-saving surgery, and that in such cases a doctor can apply to the Court for confirmation that this is the right course. She suggested that a similar system for advance application to the Court might work better than the current system where the assisted suicide takes place without any certainty as to whether a prosecution may follow.
- It was agreed that the DPP should give guidelines that were as clear as possible, but that the Court should not dictate the terms. In Court the DPP had suggested that a third party assisting a suicide in particular circumstances was unlikely to face prosecution, though this was not clear from the Guidelines. The Court suggested that the DPP revise her Guidelines to give more clarity on this issue.
The Lords on several occasions in their judgments took the opportunity to encourage Parliament to look again at the issues involved and make the legal position clear, noting that recent judgments and Lord Falconer’s Bill will contribute to the process.
One suspects that if Parliament does not now address the issue of Assisted Suicide, the Courts will take the next opportunity to formulate an appropriate system, giving suffering people a clear policy with foreseeable consequences.
The DPP 2010 Guidelines are available from the Crown Prosecution service here