An analysis of the Nicklinson euthanasia decision by the British Court of Appeal.

Alex Schadenberg

By Alex Schadenberg

International Chair - Euthanasia Prevention Coalition

On July 31, 2013, the Court of Appeal (Civil Division) in Britain decided in the Nicklinson case that no exception would be created to the homicide (euthanasia) or assisted suicide Acts, that no defense of “necessity” exists within the homicide or assisted suicide Acts, and that only parliament can decide to change the law in relation to euthanasia and/or assisted suicide. The court did decide in a limited manner in favour of 'Martin' by deciding that the Director of Public Prosecutions is to provide further clarification concerning the assisted suicide prosecution guidelines.

The first two plaintiffs in the case involve Tony Nicklinson (deceased) represented by his wife Jane Nicklinson and Paul Lamb. Both plaintiffs asked the court to create an exception to the Homicide Act to allow someone to cause their death (euthanasia). They argued that there is a defense of “necessity” that allows the court to create an exception to murder and thus legalize euthanasia in the UK.

The third plaintiff, ‘Martin,’ was seeking death by assisted suicide. 'Martin' may be planning to go to Switzerland to die by assisted suicide at the Dignitas suicide clinic. He sought a further clarification to the assisted suicide prosecution guidelines to assure a person who accompanies him to Switzerland for assisted suicide would not be prosecuted.

The interveners in the case were: the Ministry of Justice, the Director of Public Prosecutions, the Attorney General, the Care Not Killing Alliance, the British Humanist Association, and A Primary Care Trust.

The Appeals Court decided:

In our view, this submission that the common law should recognise a defence of necessity to apply to certain cases of euthanasia is wholly unsustainable for a variety of reasons. (section 54)

1. It cannot be held that the values of autonomy and dignity supercede the sanctity of human life (section 54). 

2. There is no right to suicide. The law provides immunity for those who kill themselves but does not confer a right to suicide. If there is no right to kill yourself, then there is no right to have someone assist you to die or to kill you (section 55). 

3. It is not appropriate for the court to fashion a defense of necessity in such a complex and controversial field; this is a matter for parliament (section 56).

Parliament

The court agreed, (in section 60), that only the parliament has the power to change the law:

Parliament as the conscience of the nation is the appropriate constitutional forum, not judges who might be influenced by their own particular moral perspectives; the judicial process which has to focus on the particular facts and circumstances before the court is not one which is suited to enabling the judges to deal competently with the range of conflicting considerations and procedural requirements which a proper regulation of the field may require; and there is a danger that any particular judicial decision, influenced perhaps by particular sympathy for an individual claimant, may have unforeseen consequences, creating an unfortunate precedent binding in other contexts.

The plaintiffs argued that there is no distinction between withholding or withdrawing treatment that is certain to cause death and actively causing death. They argued that since it is lawful to withhold or withdraw medical treatment, when death is certain, then it should also be lawful to intentionally cause the death of the same person. The court disagreed with the plaintiffs and responded in section 61:

“However, these judges recognised that this is a distinction deeply rooted in English law…  Moreover, as we have seen, not everyone considers that the distinction is irrational and unjustified.”

The court expressed their decision, (in section 66) with the following quote:

First, as we have noted, there is no right - let alone a fundamental right - to commit suicide, and the right to assist someone to do so cannot place the party providing assistance in a stronger position than the party committing suicide. Second, section 2(2) of the Suicide Act is not ambiguous, nor is it cast in general terms. There is no scope for giving it a limited interpretation. There is no conceivable risk that Parliament may not have understood the full implications of a blanket ban, or that the problems of those unable to commit suicide have passed unnoticed in the democratic process. On the contrary, Parliament fully understood what a blanket ban meant and why they were imposing it. They have on numerous occasions considered specific proposals for change but have so far chosen not to accede to them. The principle of legality can gain no hold here. This difficulty alone is in our view decisive of this submission. If a defence of necessity cannot be fashioned for assisted suicide, it certainly cannot for euthanasia.

The court examined the question of the current prohibition on euthanasia and assisted suicide in the UK. The court states in section 74:

"a terminally ill or dying person's wish to die never constitutes any legal claim to die at the hand of another person... 

and it added that it could not constitute legal justification for someone else to bring about that person's death.”

Considering the purpose of a blanket ban to euthanasia and assisted suicide the court recognized in section 74 the potential threat to vulnerable people by stating:

"We are also concerned that vulnerable people - the elderly, lonely, sick or distressed - would feel pressure, whether real or imagined, to request early death. We accept that, for the most part, requests resulting from such pressure or from remediable depressive illness would be identified as such by doctors and managed appropriately. Nevertheless we believe that the message which society sends to vulnerable and disadvantaged people should not, however obliquely, encourage them to seek death, but should assure them of our care and support in life." 

 It is not hard to imagine that an elderly person, in the absence of any pressure, might opt for a premature end to life if that were available, not from a desire to die or a willingness to stop living, but from a desire to stop being a burden to others.

The court therefore agreed with the previous decision, by the House of Lords in Purdy, that a blanket ban was “amply justified” and proportionate.

In section 78 the court outlines its concern related to the possible threat to vulnerable people if euthanasia and/or assisted suicide were legalized. The court stated:

“The more serious the harm involved the more heavily will weigh in the balance considerations of public health and safety against the countervailing principle of personal autonomy. The law in issue in this case, section 2 of the 1961 Act, was designed to safeguard life by protecting the weak and vulnerable and especially those who are not in a condition to take informed decisions against acts intended to end life or to assist in ending life. Doubtless the condition of terminally ill individuals will vary. But many will be vulnerable and it is the vulnerability of the class which provides the rationale for the law in question. It is primarily for States to assess the risk and the likely incidence of abuse if the general prohibition on assisted suicides were relaxed or if exceptions were to be created. 

Clear risks of abuse do exist, notwithstanding arguments as to the possibility of safeguards and protective procedures."

After deciding that the blanket ban on assisted suicide is justified the court considered the question that “Martin” placed before the court, that being the level of clarity that the assisted suicide prosecution guidelines provide.

The court considered the House of Lords decision in Purdy, a case that sought to clarify if a person who travels with someone to Switzerland for assisted suicide would be prosecuted. In response to the Purdy decision, the Director of Public Prosecutions published prosecution guidelines with respect to assisted suicide.

In assessing the prosecution guidelines, the court examined what they referred to as: 

Class 1 cases: A person with emotional connections with nothing to gain travels with the person to Switzerland for assisted suicide.Class 2 cases:  A Person with no emotional connections who assist a person to commit suicide or go to Switzerland for assisted suicide with some financial or other gain.

The court assessed the prosecution guidelines and determines in section (138) that:

“a person who is considering providing assistance to a victim to commit suicide is able to foresee, to a degree that is reasonable and adequate in the circumstances, the consequences of providing such assistance.”

The court then, in section 140 determines that Class 1 cases are sufficiently defined and limits the requirement to clarify the prosecution guidelines to Class 2 cases.

The Lord Chief Justice dissented on the decision to require the Director of Public Prosecutions to provide further clarity on the assisted suicide prosecution guidelines. Chief Justice Toulson argued that further clarity in the prosecution guidelines might cross the constitutional boundary, whereby the prosecution guidelines become similar to legislation.

The Director of Public Prosecutions has informed the court that he would be appealing this part of the decision to the Supreme Court.

The court concluded there full decision by stating in section 149:

We would therefore dismiss the appeals of Mrs Nicklinson and Paul Lamb. We would uphold 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 we have termed the class 2 category.

Dr Andrew Fergusson

The Dr. Andrew Fergusson of the Care Not Killing Alliance responded to the decision of the Court of Appeal with the following statement:

 The judgment comprehensively and completely dismissed these appeals, which sought to alter legislation covering murder. 

"All three judges strongly rejected the notion that 'necessity' should be a defence in euthanasia cases, saying this was not compatible with English Law. Further, the blanket prohibition on assisted suicide in the UK is not contrary to Article 8 of the European Convention on Human Rights." 

"The judges, the Lord Chief Justice, Lord Judge, the Master of the Rolls, Lord Dyson and Lord Justice Elias, recognised that changing the laws on murder and suicide are matters for Parliament alone. They acknowledged that these issues had been debated by Parliament frequently in recent years." 

"And they confirmed the simple truth that the current law exists to protect the vulnerable and those without a voice: disabled people, terminally ill people and elderly people, who might otherwise feel pressured into ending their lives."  

"Two of the three judges concluded that the DPP should issue some very minor clarification to the prosecution guidelines covering assisted suicide for 'class two cases' requiring the involvement of a health professional. We were persuaded by the dissenting opinion from the UK's most senior judge that change was unnecessary and unhelpful, but, importantly, this clarification does not change the current law."

The Nicklinson decision establishes strong precedents, in Common Law, for the Supreme Court of Canada to overturn the Carter decision by Justice Smith in British Columbia Canada.

Smith decided that the court could decide public policy on euthanasia and assisted suicide even though the Canadian parliament had recently considered the issue of euthanasia and assisted suicide when it defeated Bill 384 by a vote of 228 to 59 in April 2010.

This court decision found that parliament has the sole right to make laws related to important public issues such as euthanasia and assisted suicide.

Smith decided that there is no ethical difference between withdrawing treatment with the likelihood that death will occur and intentionally causing death by deliberate means.

This court decision found that the difference between killing and letting die is a well established common law principle.

Smith decided that since suicide was not illegal therefore assisted suicide should also not be illegal.

This court found that there is no right to suicide and therefore no right to euthanasia or assisted suicide.

Smith decided that since some people are incapable of committing suicide or dying by assisted suicide, therefore a limited form of euthanasia should be legal.

 This court found that since there is not right to kill yourself therefore there cannot be a right to have someone else kill you.

It is interesting that Robert Latimer argued that he had a 'defense of necessity' when he killed his daughter Tracy in 1993. The Supreme Court of Canada also rejected this argument.

This decision by the Court of Appeal in Britain is the second recent common law decision in the past few months to come to a similar conclusion. Recently the Irish Supreme Court made a similar decision in the Fleming decision.

I expect that the Nicklinson decision by the Court of Appeal in Britain will be appealed to the Supreme Court. We already know that the Director of Public Prosecutions is appealing the 'Martin' part of the decision.

I also expect that the Nicklinson decision will be considered when the Supreme Court of Canada hears the appeal of the Carter case.

Link to the legal decision.

Links to other recent similar articles:
- British Court of Appeal upholds lower court ruling protecting people from euthanasia.
- Irish Supreme Court upholds protections in law from assisted suicide.
- UK lower court rejects euthanasia cases, Nicklinson case.
- Responding to the disturbing decision by Justice Smith in the Carter case.