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Akron Univ. School of Law

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Wednesday, August 29, 2012

The "Right to Die" in the UK

Within the past two weeks, major "right to die" events have occurred in the UK.  On August 16, the High Court in London issued a decision rejecting assisted suicide, Nicklinson and Ministry of Justice, [2012] EWHC 2381 (Admin), http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Admin/2012/2381.html&query=suicide&method=boolean (16/08/2012).  Two patients, both almost completely paralyzed as a result of strokes, had sued to have assistance in suicide without risks of prosecution for those helping them. 

AM's (pseudonymized initials)  stroke occurred in 2008; since that time, he has been almost entirely unable to move.  Now age 47, AM can communicate through small eye and head movements and can be fed orally.  AM wishes to go to Dignitas in Switzerland for suicide assistance.  His wife is unwilling to support AM for this purpose, as she opposes it.  However, she is willing to go with him to provide comfort, if others are available to provide the service.  In the litigation, AM sought clarification that anyone assisting him would not be prosecuted in England under the policy of the Director of Public Prosecutions (DPP).

Tony Nicklinson's circumstances are somewhat different. His stroke occurred in 2005; he communicates by blinking in response to letters held on a Perspex board and by using an eye blink computer. Although Nicklinson estimates that with help he could travel to Dignitas, he is unable to swallow and so would require euthanasia services rather than assisted suicide--services which Dignitas does not provide.  Nicklinson, now age 58, has been a vocal advocate for euthanasia for several years. Nicklinson sought a declaration that a physician providing him with assistance in dying would not be liable for prosecution.

In the UK, it is an offense to encourage or assist the suicide of another; the punishment may be imprisonment for up to 14 years.  Prosecutions for the offense of assisted suicide require the consent of the DPP.  DPP current policy identifies factors tending in favor of prosecution, including that the suspect was acting in the capacity of physician, other health care provider, or professional carer.  Factors tending against prosecution include the victim's voluntary, clear, settled and informed decision; compassionate motivation; and report to the police.  Although an interim policy had included that the victim had a "terminal illness; or a severe and incurable physical disability; or a severe degenerative physical condition; from which there was no possibility of recovery," this factor was excluded from the final policy as a result of concerns from the disability community.  The claimants sought clarification of the DPP policy so that those assisting them with dying would not face prosecution.  They also sought determination of whether an adverse determination would be compatible with article 8 of the European Convention on Human Rights, respect for private and family life.

In ruling against Nicklinson and AM, the High Court determined that each sought major changes in the law.  These changes, the judges wrote, were for the legislature and not for the courts to make.  With respect to Article 8, the Court observed that there had been no rulings that a ban on voluntary euthanasia violated the Convention and that member states were permitted to decide whether it was for courts or the legislature to determine prosecutorial policy.

On August 22, 2012, Tony Nicklinson died.  His death was attributed to pneumonia.  Reportedly, he had refused all nutrition since the High Court decision as well as any treatment for the pneumonia,http://www.guardian.co.uk/uk/2012/aug/22/tony-nicklinson-right-to-die-case .

[LPF]

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