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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Nicklinson v Ministry of Justice & Ors  EWHC 304 (QB) (12 March 2012)
Cite as:  Med LR 383, (2012) 124 BMLR 191,  WLR(D) 75,  EWHC 304 (QB),  HRLR 16, (2012) 15 CCL Rep 427, 124 BMLR 191
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| TONY NICKLINSON
|- and -
|MINISTRY OF JUSTICE
|- and -
|DIRECTOR OF PUBLIC PROSECUTIONS
- and -
|1st Interested Party
||2nd Interested Party
David Perry QC and James Strachan (instructed by TSol) for the Defendant
Hearing dates: 23 January and 8 February 2012
Crown Copyright ©
Charles J :
General Factual Background
" It left me paralysed below the neck and unable to speak. I need help in almost every aspect of my life. I cannot scratch if I itch, I cannot pick my nose if it is blocked and I can only eat if I am fed like a baby - only I won't grow out of it, unlike the baby. I have no privacy or dignity left. I am washed, dressed and put to bed by carers who are, after all, still strangers. You try defecating to order whilst suspended in a sling over a commode and see how you get on.
I am fed up with my life and don't want to spend the next 20 years or so like this. Am I grateful that the Athens doctors saved my life? No, I am not. If I had my time again, and knew then what I know now, I would not have called the ambulance but let nature take its course. I was given no choice as to whether or not I wanted to be saved. However, I do concede that it was a fair assumption given that I had asked for the ambulance and associated medical staff.
What I object to is having my right to choose taken away from me after I had been saved. It seems to me that if my right to choose life or death at the time of initial crisis is reasonably taken away it is only fair to have the right to choose back when one gets over the initial crisis and have time to reflect.
I'm not depressed so do not need counselling. I have had over six years to think about my future and it does not look good. I have locked in syndrome and I can expect no cure or improvement in my condition as my muscles and joints seize up through lack of use. Indeed, I can expect to dribble my way into old age. If I am lucky I will acquire a life-threatening illness such as cancer so that I can refuse treatment and say no to those who would keep me alive against my will. ----------
By all means protect the vulnerable. By vulnerable I mean those who cannot make decisions for themselves just don't include me. I am not vulnerable, I don't need help or protection from death or those who would help me. If the legal consequences were not so huge i.e. life imprisonment, perhaps I could get someone to help me. As things stand, I can't get help.
I am asking for my right to choose when and how to die to be respected. I know that many people feel that they would have failed if someone like me takes his own life and that life is sacred at all costs. I do not agree with that view. Surely the right and decent thing to do would be to empower people so that they can make the choice for themselves. Also, why should I be denied a right, the right to die of my own choosing when able bodied people have that right and only my disability prevents me from exercising that right? "
The relief sought
i) A declaration that it would not be unlawful, on the grounds of necessity, for Mr Nicklinson's GP, or another doctor, to terminate or assist the termination of Mr Nicklinson's life.
ii) Further or alternatively, a declaration that the current law of murder and/or of assisted suicide is incompatible with Mr Nicklinson's right to respect for private life under Article 8, contrary to sections 1 and 6 Human Rights Act 1998, in so far as it criminalises voluntary active euthanasia and/or assisted suicide.
iii) Further or alternatively, a declaration that existing domestic law and practice fail adequately to regulate the practice of active euthanasia (both voluntary and involuntary), in breach of Article 2.
The common law doctrine of necessity
" An act which would otherwise be a crime may in some cases be excused if the person accused can show that it was done only in order to avoid consequences which could not otherwise be avoided, and which, if they had followed, would have inflicted upon him or upon others whom he was bound to protect inevitable and irreparable evil, that no more was done than was reasonably necessary for that purpose, and that the evil inflicted by it was not disproportionate to the evil avoided ---- The extent of this principle is unascertained. It does not extend to the case of shipwrecked sailors who kill a boy, one of their number, in order to eat his body. "
" Under the present law, voluntary euthanasia would, except in certain narrow circumstances, be regarded as suicide in the patient who consents and murder in the doctor who administers; -------------
More specifically, the following principles may be stated:
(1) If the doctor gives the patient a fatal injection with the intention of killing him, and the patient dies in consequence, the doctor is a common law murderer because it is his hand that has caused the death. Neither the consent of the patient, nor the extremity of his suffering, nor the imminence of death by natural causes, nor all these factors taken together is a defence. This, at any rate is always assumed by lawyers, though there is no case in which the argument that the concurrence of all three factors may present a defence has been actually advanced and decided. It is by no means beyond the bounds of imagination that a bold and humane judge might direct the jury, if the question were presented, that voluntary euthanasia may in extreme circumstances be justified under the general doctrine of necessity. Just as in the case of Rex v Bourne, the jury were directed that the unborn child may be destroyed for the purpose of preserving the yet more precious life of the mother, so, in the case of voluntary euthanasia, it is possible to imagine the jury being directed that the sanctity of life may be submerged by the overwhelming necessity of relieving unbearable suffering in the last extremity, where the patient consents to what is done and where in any event no span of useful life is left to him. Although a persuasive argument can be advanced in support of such a direction, it must be emphasised that no hint of it appears in the existing legal authorities. On the contrary the authorities precisely exclude, on a charge of murder, a defence that the deceased consented to the extinction of his life, any defence of good motive, and any defence that the deceased would shortly have died in any event. "
An introduction to the position of the parties
i) the inevitable and irreparable evil that cannot be avoided or ended other than by his death, is the continuation of his unbearable suffering contrary to his common law rights of self determination and dignity and his Article 8 rights (the Claimant's rights of autonomy), and
ii) the duties of the doctor who does the act that kills him are that doctor's duties to respect the Claimant's rights of autonomy and to ease his suffering.
i) the deliberate killing of another person is murder, unless it can be justified by a well recognised excuse admitted by the law,
ii) the doctrine of necessity does not provide a defence to murder, or assisted suicide, because duress is only that species of the genus of necessity which is caused by wrongful threats, and duress is not a defence to murder (see R v Howe  1 AC 417, Lord Hailsham at 428D to 429D and 430D to 431D, and Lord Mackay at 453 B/F), and
iii) neither consent to the infliction of death, or kindly motives, are any defence to such a charge (see Airedale NHS Trust v Bland  AC 789. Lord Mustill at 892E – 893A and R v Brown  1AC 212, Lord Mustill at 261 F/G).
i) any change to that settled position is a matter for Parliament,
ii) the state of the criminal law of murder and assisted suicide does not infringe the right to respect for private life under Article 8 of the Convention, and
iii) the Claimant has no basis for alleging a breach of Article 2.
i) this is not a case in which the civil court should entertain an application for declaratory relief applying the guidance set out in R (Rusbridger) v A-G  1 AC 357 at paragraph 16, and
ii) the doctrine of necessity could only provide a defence to murder or assisted suicide if the choice facing the accused was between two deaths. As to this, it was asserted that insofar as the conjoined twins case Re A (Children)(Conjoined Twins: Surgical Separation)  Fam 147, supports the argument that necessity is an available defence: that support is so limited. The example of climbers on a rope and escape from a hold during the Zeebrugge disaster were referred to in the same way.
The first declaration sought – The defence of necessity - Development / change of the common law
" I must however stress, at this point, that the law draws a crucial distinction between cases in which a doctor decides not to provide, or to continue to provide, for his patient treatment or care which could or might prolong his life, and those in which he decides, for example by administering a lethal drug, actively to bring his patient's life to an end. As I have already indicated, the former may be lawful, either because the doctor is giving effect to his patient's wishes by withholding treatment or care, or even in certain circumstances in which (on principles which I shall describe) the patient is incapacitated from stating whether or not he gives his consent. But it is not lawful for a doctor to administer a drug to his patient to bring about his death, even though that course is prompted by a humanitarian desire to end his suffering, however great that suffering may be: see Reg v Cox (unreported), 18 September 1992. So to act is to cross the Rubicon which runs between on the one hand the care of the living patient and on the other hand euthanasia - actively causing his death to avoid or to end his suffering. Euthanasia is not lawful at common law. It is of course well known that there are many responsible members of our society who believe that euthanasia should be made lawful; but that result could, I believe only be achieved by legislation which expresses the democratic will that so fundamental a change should be made in our law, and can, if enacted, ensure that such legalised killing can only be carried out subject to appropriate supervision and control. It is true that the drawing of this distinction may lead to a charge of hypocrisy; because it can be asked why, if the doctor, by discontinuing treatment, is entitled in consequence to let his patient die, it should not be lawful to put him out of his misery straight away, in a more humane manner, by lethal injection, rather than let him linger on in pain until he dies. But the law does not feel able to authorise euthanasia, even in circumstances such as these; for once euthanasia is recognised as lawful in these circumstances, it is difficult to see any logical basis for excluding it in others. "
i) if he had the physical ability to do so, he could lawfully end his suffering by ending his life,
ii) he could lawfully refuse food and water and so end his suffering, by so ending his life, in a drawn out and painful way (subject to the palliative care that could lawfully be given to him and may lead to a quicker death), and
iii) if his condition was such that he would die if treatment was withdrawn, he could lawfully refuse such treatment, and so end his suffering by so ending his life, but
iv) anyone who assists him by action (rather than the discontinuance of care together with palliative care) to end his suffering by ending his life would be committing a crime.
i) the distinction between taking one's own life by one's own act and the taking of life through the intervention or with the help of a third party, and
ii) the distinction between the cessation of life-prolonging treatment and the taking of action lacking medical, therapeutic or palliative justification but intended solely to terminate the life of another.
See, for example, Lord Bingham at paragraph 9 where he points out that Mrs Pretty's case was inconsistent with those distinctions, which he describes as principles deeply embedded in English law. (See also Lord Bingham at paragraphs 26 to 29 and Lord Steyn at paragraphs 55 and 62).
i) the statements of the law relied on by the Defendant do not provide binding authority, have not been directed to the combination of all the factors relied on by the Claimant and have concerned involuntary active euthanasia and not voluntary active euthanasia,
ii) there is a duty owed by doctors to the Claimant based on his common law rights of self determination and dignity, and his Article 8 rights (and possibly Article 14) that is engaged in determining the defences available to a doctor to the charges of murder or assisted suicide,
iii) the court has demonstrated in other areas that it can determine in advance whether circumstances exist (or will exist) in which it is lawful to end a person's life, and an extension of this role to cover the Claimant would promote rather than weaken the protection provided by the law to vulnerable or uncertain people who have capacity to make the relevant choices, and
iv) the relief the Claimant seeks does not necessarily lead to, or support a conclusion that, the law should provide a defence to murder or assisted suicide in cases of involuntary active euthanasia.
Can or should the court refuse to entertain these proceedings on the basis that it is only Parliament that can bring about the development and change the Claimant seeks
i) in Pretty Lord Bingham at paragraphs 27 to 29 refers to reviews since the passing of the Suicide Act and there have been more since. There was common ground on what they were, and the last has been the work of the Commission on Assisted Dying chaired by Lord Falconer and his introduction of an amendment during the passage of the Coroners and Justice Bill, that was defeated,
ii) by the CJA 2003, Parliament has introduced mitigating provisions relating to sentencing in cases where there has been a mercy killing, and by taking that approach rejected or did not take an alternative approach of providing a defence in such circumstances, and
iii) Parliament has made amendments to the Suicide Act, most recently by the Coroners and Justice Act 2009.
i) the constitutional approach may be displaced (see Lord Browne-Wilkinson in Bland at 880D and Walker LJ in Re A at 255F),
ii) where fundamental rights are in issue the constitutional approach will, or can be, displaced by the principle of legality when interpreting statutes and applying the common law (see R v Home Secretary ex p Simms  2 AC 115 at 131, and HM Treasury v Ahmed  AC 534 at paragraphs 45 to 47, 61, 75 to 76, 111 to 117, 138, 193, 240 and 249),
iii) there are examples of the courts introducing legal criteria and safeguards into the common law in respect of issues that do or can be said to trigger the constitutional approach (e.g. Re F (Mental Patient: Sterilisation)  AC 1 in particular at paragraphs 56E to 57A, 70F to 71B, 75H and 79 G/H),
iv) whilst it is correct that Parliament has foregone opportunities to legislate on several occasions, this is not determinative, not only because of the principle of legality, but also having regard to the points that (a) there is no explicit exclusion of the operation of a defence of necessity in all circumstances to a charge under s. 2(1) Suicide Act, and there is no such exclusion by necessary implication, (b) with one exception in 1997, the relevant debates have all been only in the House of Lords and there have been considerable developments since 1997 (and Pretty) including a growing majority of the public who support the relaxation of laws of assisted dying, and the Select Committee did not reject Lord Joffe's Assisted Dying for the Terminally Ill Bill,
v) it would not be undemocratic or unconstitutional for the courts to step in and fill a gap in the common law, even if Parliament had deliberately left it empty (see Re F (Adult: Court's Jurisdiction)  1 Fam 38 at 56). Also, in the analogous context of the court's powers under the Human Rights Act to determine compliance with fundamental human rights in A v Home Secretary  2 AC 68 at paragraph 42, Lord Bingham said:" ------- It follows that I do not accept the full breadth of the Attorney General's submissions. I do not in particular accept the distinction which he drew between democratic institutions and the courts. It is of course true that the judges in this country are not elected and are not answerable to Parliament. It is also of course true, as pointed out in para 29 above, that Parliament, the executive and the courts have different functions. But the function of independent judges charged to interpret and apply the law is universally recognised as a cardinal feature of the modern democratic state, a cornerstone of the rule of law itself. The Attorney General is fully entitled to insist on the proper limits of judicial authority, but he is wrong to stigmatise judicial decision-making as in some way undemocratic. It is particularly inappropriate in a case such as the present in which Parliament has expressly legislated in section 6 of the 1998 Act to render unlawful any act of a public authority, including a court, incompatible with Convention right, has a required courts (in section 2) to take account of relevant Strasberg jurisprudence, has (in section 3) required courts, so far as possible, to give effect to Convention rights and has conferred a right of appeal on derogation issues. The effect is not, of course, to override the sovereign legislative authority of the Queen in Parliament, since if primary legislation is declared to be incompatible the validity of the legislation is unaffected (section 4(6)) and the remedy lies with the appropriate minister (section 10), who is answerable in Parliament. The 1998 Act gives the courts a very specific, wholly democratic, mandate. As Professor Jowell has put it "The courts are charged by Parliament with delineating the boundaries of a rights-based democracy" ------------ "
vi) again, by analogy with the approach of the courts under the Human Rights Act (and of direct application in respect of the relief based on Article 8 and Article 2),a) the courts must evaluate the effect of, and interpret, legislation by reference to Convention Rights (see Wilson v First Country Trust (No 2)  1 AC 816 at paragraph 61,b) it is for domestic courts to form a judgment on whether a convention right has been breached (see, for example, R (Daly) v Home Secretary  2 AC 532 at paragraphs 23 and 27 and R (Quila) v Home Secretary  3 WLR 836 at paragraphs 45/46 and 61, and dissenting at 91)c) the Ullah principle does not apply to issues in respect of which Strasbourg accords a margin of appreciation (see for example Re G (Adoption: Unmarried Couple)  1 AC 173 in particular at paragraphs 29 to 32, 36 to 38, 50, 56, 84, 113, 115, 117, 119, 120, 122 and 126 to 130 (and 79 and 82 dissenting)),d) the domestic authorities to whom Strasbourg affords a margin of appreciation include the courts, and whether the final word on proportionality is for Parliament or the courts is a matter to be determined by reference to the constitutional arrangements of the contracting state and so, in the UK, by the provisions of the Human Rights Act (see Re G at paragraphs 37 and 140), and
vii) whilst in general it may be preferable for issues of broad social and moral policy to be determined by Parliament, the fact that they are hotly contested can be a factor in favour of the court intervening particularly if, as here, the suggested solution involves the participation of the courts on a case by case basis, as has been done in cases relating to patients who lack capacity and in the Conjoined Twins case.
Should a civil court entertain the claim for a declaration
The second declaration sought - Article 8
i) the relevant ruling of the House of Lords in Pretty is arguably obiter dicta,
ii) a relevant factor in the view of the House of Lords and the decision of the Strasbourg court on Article 8(2) was the existence of the DPP's discretion,
iii) in Purdy the House of Lords concluded that, absent a published policy by the DPP, the relevant provisions of the Suicide Act did not comply with Article 8(2), which arguably is a departure from, or a qualification of, the view and conclusion on Article 8(2) in Pretty,
iv) here, unlike in Pretty and Purdy the compliance with Article 8(2) falls to be considered against the background of the law of murder as it applies to voluntary active euthanasia and so to an effective blanket ban on assistance being given by doctors to persons who as a result of their disablement cannot commit suicide, other than by refusing food and water,
v) the points I have mentioned earlier by analogy in paragraph 32(v) and (vi) apply because Strasbourg based its decision on Article 8(2) in Pretty on the margin of appreciation, which makes it arguable that the court is not bound by that decision and can review and reach a different conclusion on the proportionality of a measure within the margin of appreciation (I have not mentioned all of the citations from authority to which I was referred on these arguments), and
vi) there have been a number of developments since Pretty which include the report of the Commission on Assisted Dying, released in January 2012, which included a conclusion that the current legal status of assisted suicide is inadequate and incoherent (see also the points made in paragraph 32(iv)(b) hereof).
The third declaration sought - Article 2