The “right to die” considered again: R (AM) v General Medical Council

The background

‘Martin’ is fifty years old and suffers from ‘locked in’ syndrome. He is unable to speak and virtually unable to move and wishes to end his life. In an earlier action against the DPP it was submitted on his behalf that the DPP’s prosecution policy infringed Articles 8 (private and family life) and 10 (expression) ECHR and in any event had not provided the clarification required by Convention law to enable doctors who might be willing to assist him to know whether they were likely to face prosecution or not.

Martin’s case was linked with the action brought by the late Tony Nicklinson (and continued by his widow, Jane), who claimed that section 2 of the Suicide Act 1961 violated Article 8. Both actions failed before the Divisional Court. Martin succeeded before the Court of Appeal in his submission that the DPP’s policy lacked sufficient clarity but that was overturned by the Supreme Court: R (Nicklinson) v Ministry of Justice [2014] UKSC 38. The Supreme Court also held by a majority that section 2 was not incompatible with Article 8.

In R (AM) v The General Medical Council [2015] EWHC 2096 (Admin) (which had been stayed pending the outcome of those related proceedings [7]) the issue was the GMC’s guidance to the effect that a doctor who assisted Martin in the way he wanted would risk disciplinary proceedings and, possibly, being struck off the register altogether. Martin argued that the result of the guidance was that he and others similarly placed would not receive the assistance they sought [5]. It therefore violated Articles 8 and 10 ECHR by interfering disproportionately with his right to choose the time and manner of his death. He also contended that it was Wednesbury unreasonable [6].

The Suicide Act 1961 and the DPP’s guidance

Elias LJ (with whom Collins J concurred) was of opinion that the law was clear. Section 2(10 of the Suicide Act 1961 made it a criminal offence intentionally to encourage or assist the suicide or attempted suicide of another person and subsequent attempts to change the law had failed [8]. In R (Pretty) v Director of Public Prosecutions [2002] 1 AC 800 the House of Lords had held that the right to choose when to die did not engage Article 8 and so the argument that section 2 was incompatible with Article 8 failed at the first stage; and at Strasbourg, though the ECtHR had disagreed with the House of Lords and held that Article 8 was engaged, it went on to hold that given the wide margin of appreciation with respect to controversial ethical issues of that kind, “it was not a disproportionate interference with that right to impose a blanket ban on all forms of assistance: Pretty v United Kingdom (2002) 35 EHRR 1“. Subsequent cases had confirmed that approach: Haas v Switzerland (2011) 53 EHRR 33Koch v Germany (2013) 56 EHRR 6Gross v Switzerland (2014) 58 EHRR 7 [9].

The compatibility of section 2 with Article 8 was considered the Supreme Court again in Nicklinson; and a majority (Lady Hale and Lord Kerr dissenting) “was not prepared (at least at this stage) to say that there was any incompatibility” [10].

In R (Purdy) v DPP [2009] UKHL 45, the House of Lords had made a declaration requiring the DPP to promulgate an offence-specific policy “identifying the facts and circumstances which he will take into account in deciding, in a case such as that which Ms Purdy’s exemplifies, whether or not to consent to a prosecution”. Subsequently, the then DPP consulted widely and published a policy in February 2010 and, in October 2014, following the Supreme Court’s judgment in Martin’s case against the DPP, the current DPP had further amended her predecessor’s policy [11 & 12].

The GMC guidance

Section 35 of the Medical Act 1983 empowered the GMC to provide advice to doctors on standards of professional conduct and performance and on medical ethics. Since 1995 it had published Good Medical Practice, its core guidance which sets out the standards of competence, care and conduct expected of all registered doctors. The GMC’s regulatory objectives included the protection of the public interest, a concept which encompassed protecting patients, maintaining public confidence in the profession and declaring and upholding proper standards of behaviour. Failure to comply with relevant guidance could put in issue the fitness of a doctor to practise; and though “Guidance is not strictly binding … it will carry significant weight and any serious or persistent departure from the standards laid down in the guidance is likely to put a doctor’s registration at risk’ [28]. The Court received evidence from the GMC that

“a decision by the DPP not to prosecute a doctor [for assisting suicide] would be a relevant factor to consider but would not determine the question whether there is a realistic prospect of proving that a doctor’s fitness to practise is impaired” [30].

The judgment

The principal ground of challenge was that the GMC had adopted unduly restrictive guidance that interfered disproportionately with Martin’s Article 8 right to end his life at the time and in the manner of his choosing [37]. The Court accepted that Article 8 was engaged [38] but the critical question was whether or not the interference was justified under Article 8.2.

Counsel for Martin submitted that it was not, because it failed to give a doctor the same sense of security when giving advice or writing a report as the DPP’s policy did. However, Elias LJ judged that, even assuming that to be true, it did not begin to raise any Convention argument.

“42. In my judgment it cannot possibly be contrary to article 8 for the GMC to take as its starting point the principle that a doctor has a duty to obey the law, and to structure its guidance accordingly. The reason why the section 2 interference with article 8 is justified, which the Supreme Court held was the protection of vulnerable patients, equally justifies the GMC’s guidance which seeks to reflect and give effect to that principle. The argument Martin advanced in the earlier proceedings with respect to the DPP’s policy was similar, namely that it should be modified to ensure compliance with article 8. Lord Hughes gave it short shrift (para. 288):

‘If section 2(1) is not disproportionate unless and until Parliament says that it is, then for the same reason the Director cannot be required to “modify” her policy…’

43. In my judgment, that succinctly summarises the position here. There is no conceivable basis on which it can be said that the GMC, as a public body, must ameliorate its guidance in order to ensure that the state is in compliance with Article 8.”

The Court also rejected the Wednesbury challenge [46-53].

Appeal dismissed.

Cite this article as: Frank Cranmer, "The “right to die” considered again: R (AM) v General Medical Council" in Law & Religion UK, 23 July 2015, https://lawandreligionuk.com/2015/07/23/the-right-to-die-considered-again-r-am-v-general-medical-council/

 There is a longer analysis on UKHRB by Isabel McArdle: see More bad news in the fight for a right to die

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