Nicklinson, R (on the application of) v A Primary Care Trust  EWCA Civ 961 (31 July 2013)
The England and Wales Court of Appeal (Court) declined to develop a defence of necessity where someone is accused of assisting suicide or murder in euthanasia cases. The Court also found that euthanasia related offences are not inconsistent with the right to private life under the European Convention on Human Rights (Convention). However, the Court built on an earlier decision requiring the Director of Public Prosecutions (DPP) to issue a policy setting out how the DPP will decide whether to prosecute a person for these offences, by finding that the consequences of these acts should be reasonably foreseeable to a person considering whether to assist suicide or euthanise.
The proceedings concerned three individuals suffering from permanent and significant disability, who were able to make a competent and rational decision to end their life but due to their physical disabilities were unable to do so except by refusing all food and liquids and dying of dehydration. Two of the appellants, Martin and Paul, sought a ruling for a doctor or third party to assist them to end their lives. The third appellant, Tony, took the view that he was condemned to a life of increasing misery and refused all food, drink and medical treatment, dying of pneumonia less than a week later.
The appellants argued that under common law and the Convention, anyone who assists them to die should not be subject to criminal consequences. The Suicide Act 1961 (UK) (Suicide Act) provides that a person who assists another to end their own life commits the offence of assisted suicide, and anyone who terminates another’s life commits murder.
The legal prohibition and Article 8
Section 2(1) of the Suicide Act imposes a blanket prohibition on assisted suicide, which (as well as the prohibition on euthanasia) the appellants submitted constituted a disproportionate interference with Article 8 of the Convention.
Article 8 of the Convention states that everyone has the right for their private and family life, home and correspondence respected, and public authorities will not interfere with this right except where necessary and in accordance with the law.
The Court decided that none of the authorities referred to by the appellants should remove the prohibition on euthanasia and assisted suicide, as a proportionate interference with Article 8.
Defence of necessity
Another issue raised was whether the common law should provide a defence to murder in euthanasia cases. The Court unanimously decided that the common law should not recognise a defence of necessity where a doctor or other person carries out a competent and rational decision by a person with a significant disability to end their life.
Section 4(2) of the Suicide Act provides that the consent of the DPP is required to prosecute someone for assisted suicide under s 2(1). Article 8 requires the DPP to set out in a policy statement the factors which will be taken into account when considering whether or not to consent to prosecution: R (Purdy) v DPP  UKHL 45. One of the applicants contended that the existing policy did not satisfy the requirements of Article 8.
Any interference with the Article 8 right must be in accordance with the law; it must be clear, accessible and foreseeable. The Court applied the European Court of Human Rights decision of Gulmez v Turkey (Application No 16330/02) which stated that the law must be:
sufficiently clear in its terms to give individuals an adequate indication as to the circumstances in which and the conditions on which public authorities are entitled to resort to the impugned measures.
The existing policy of the DPP listed factors that the DPP would take into account in deciding whether to consent to prosecution under s 2(1) of the Suicide Act. One of the appellants submitted that it is clear from a careful reading of the policy that those who provide assistance to someone they have a close or emotional connection with and who is capable of making a considered and autonomous decision would not be prosecuted. However, he submitted that the policy did not provide sufficient foreseeability in the absence of a close or emotional connection (eg. assistance provided by a healthcare professional).
Royce and Macur JJ considered that the DPP is required “to identify the facts and circumstances which he would take into account in such a way 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”: . Their Honours held that the existing DPP policy was not sufficiently clear to satisfy the requirements of Article 8 in relation to healthcare professionals.
In Victoria, suicide is no longer a criminal offence but it remains an offence for a person to assist another person to end (or attempt to end) their life under s 6B(2) of the Crimes Act 1958 (Vic) (Crimes Act). It is no defence that the ‘victim’ consented, or that the offence was committed out of compassion for the victim. No defence of necessity has developed at common law and although there is a significant degree of public engagement on issues around euthanasia and assisted suicide, Parliament has not established such a defence either.
The arguments raised in Nicklinson would be relevant in a similar situation before a Victorian Court. Section 13 of the Victorian Charter of Human Rights (Charter) states that a person has the right to freedom from unlawful or arbitrary interference with their privacy. Section 7 states that limits on rights under the Charter must be reasonable and demonstrably justifiable. There is no Victorian authority considering whether the criminalisation of assisted suicide in s 6B(2) of the Crimes Act interferes with the section 13 right and, if so, whether such interference is reasonable and demonstrably justifiable in light of section 7.
The DPP in Victoria has issued a general policy setting out how the DPP will decide whether to prosecute someone. Under the general policy, the DPP will consider whether it is in the public interest to prosecute. However, there is no publicly available policy specific to the issue of euthanasia. Nevertheless, people who have participated in euthanasia cases have been prosecuted in Victoria. In R v Klinkermann  VSC 65 an elderly man was convicted of attempting to kill his wife, who had a significant disability and was dying, although no longer able to communicate that she wanted to end her life. King J referred to the issue of euthanasia and commented that “the law protects human life and places it into a special category. It is protected at all costs.”
The decision is available at: http://www.bailii.org/ew/cases/EWCA/Civ/2013/961.html
Elle Linfoot is a Law Graduate in the King & Wood Mallesons Human Rights Law Group.