Ed Madden, BL on a recent case in which the Court considered whether a man who was severely paralysed should be allowed to bring judicial review proceedings to allow him to end his own life.
In 2005, Tony Nicklinson, who is now in his late 50s, had a stroke while on a business trip to Greece. The stroke left him paralysed below the neck and unable to speak.
Prior to that, he was an outgoing man with a busy family, working and social life.
He now communicates by blinking or by limited head movement. Wishing to have his life ended, Mr Nicklinson brought proceedings in the High Court against the Ministry of Justice in which he sought a number of declarations, including the following:
• That it would not be unlawful, on the grounds of necessity, for his general practitioner, or another doctor, to terminate or assist the termination of his life;
• That the current law of murder and/or assisted suicide was incompatible with his right to respect for private life under Article 8 of the European Convention on Human Rights, insofar as it criminalises voluntary active euthanasia and/or assisted suicide.
During January and February 2012, the Court dealt with the preliminary issue as to whether Mr Nicklinson’s arguments had any real prospect of success, or whether there was some other compelling reason why the proceedings brought in his name should be tried.
In a sworn statement, Mr Nicklinson stated: “… 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 …”
He continued: “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… 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 … [W]hy 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 common law doctrine of necessity was defined in the 19th century by Archbold as follows: “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 …”
In reliance on the doctrine, Mr Nicklinson argued that:
• The inevitable and irreparable evil that could not be avoided or ended, other than by his death, was the continuation of his unbearable suffering contrary to his common law rights of self determination and dignity and his Article 8 rights to autonomy; and
• The duties of the doctor who does the act that kills him were that doctor’s duties to respect his rights of autonomy and to ease his suffering.
Counsel on behalf of the Ministry of Defence submitted that the deliberate killing of another person amounted to murder, unless it could be justified “by a well-recognised excuse admitted by the law”. It was also submitted that the doctrine of necessity does not provide a defence to murder or assisted suicide. Any change to that settled position was a matter for Parliament and not the courts.
Giving his decision in the case on March 12, 2012, Mr Justice Charles (quoting from a statement made by Lord Bingham in the 2002 case of Pretty v DPP) said that the underlying issues in the present case raised questions “that have great social, ethical and religious significance on which widely differing beliefs and views are held, often strongly”.
What Mr Nicklinson sought to achieve was a change in the existing understanding of the common law. The plaintiff claimed that it was at least arguable that the common law should develop or change to provide a lawful route to ending his suffering by terminating his life at a time of his choosing; this would be achieved with the assistance “by positive action” of a doctor in controlled circumstances sanctioned by the court.
The judge accepted that in this respect, he had an arguable case. The judge was also satisfied that Mr Nicklinson had established an arguable case in support of the declaration which he sought in respect of Article 8 of the Convention.
Accordingly, he was granted the right to seek the declarations by way of judicial review in the High Court.
Reference:  EWHC 304 (QB).