Right-to-die judgment of Appeal Court: Summary

This morning the Appeal Court handed down its judgment in the “right-to-die” case R (on the application of) Nicklinson and Lamb v Ministry of Justice [2013] EWCA Civ 961.  It summarized the appeals as concerning

“individuals who suffer from permanent and catastrophic physical disabilities. They are of sound mind and acutely conscious of their predicament. They do not want to suffer a painful and undignified process of dying. They wish to die at a time of their choosing. However, they are not physically capable of ending their own lives unaided.”

The Court considered three issues:

– Should the common law be developed to recognise a defence to murder where a doctor or other person gives effect to the settled wish of a competent person to end his or her own life?

– Whether the current legal prohibitions which placed an absolute legal prohibition on assisted dying were compatible with Article 8 ECHR, and the margin of appreciation afforded to Member States;  and

– Whether the policy of the Director of Public Prosecutions, (DPP), satisfies the Convention principles of proportionality.

With regard to the first, Lord Judge reiterated the position that the law relating to assisting suicide cannot be changed by judicial decision, and emphasized that the requirement for Parliamentary involvement “does not demonstrate judicial abnegation of our responsibilities, but rather highlights fundamental constitutional principles”

On the second issue, the Court was unanimous in upholding the blanket prohibitions on euthanasia and assisted suicide, and held that these do not constitute a disproportionate interference with the Article 8 rights of the appellants.

By a majority decision, the Court upheld the appellant Martin’s complaint that the Policy of the DPP fails to provide sufficient clarity as to the DPP’s prosecution Policy with respect to those persons who fall into what it termed the class 2 category, i.e. helpers with no close or emotional connection with the person seeking to end his or her life [1]. The court ordered the DPP to provide clarification.

Both the Director of Public Prosecutions and the Nicklinson and Lamb families immediately indicated their intentions to appeal the judgment to the Supreme Court

We will post a fuller report later.  Rosalind English has  analysed the case on the UKHR blog on which there is a link to the judgment.

[1] Persons in the Class 1 category include: (i) a friend or family member who is willing to arrange for the use of the services of Dignitas; (ii) a helper, who has emotional ties to the victim, acts in good faith out of compassion; and (iii) there are no particular grounds for concern about the motives of the helper or about the vulnerability of the person being helped.  Under the DPP Policy, these are unlikely to be prosecuted.