Health Care

R (on the application of Tony Nicklinson & another); R (on the application of AM) v (1) Ministry of Justice (2) DPP [2014] UKSC 38 (Lord Neuberger (President), Lady Hale JSC, Lord Mance JSC, Lord Kerr JSC, Lord Clarke JSC, Lord Wilson JSC, Lord Sumption JSC, Lord Reed JSC, Lord Hughes JSC): On dismissing the appeals and cross appeals the court held that section 2 of the Suicide Act 1961 did not impose what would be regarded under the European Convention on Human Rights 1950 as a "blanket ban" on assisted suicide, which would take it outside the margin of appreciation afforded to Convention states on that issue. The Supreme Court declined to order the Director of Public Prosecutions to amend her policy on prosecuting cases of alleged assisted suicide. Both appellant’s suffered with catastrophic illnesses and conditions, were competent to make decisions but were physically unable to end their own life without assistance from others. The appellants in the first action appealed against a decision that English law relating to assisted suicide did not infringe the European Convention on Human Rights 1950. In the second action, the appellant Director of Public Prosecutions appealed against an order requiring her to amend her policy on prosecutions in alleged assisted suicide cases; the respondent cross-appealed on the extent of the required amendments. In a detailed and complex judgment with Lady Hale and Lord Kerr dissenting regarding Convention compliance, and with Lords Sumption, Clarke, Reed and Hughes dissenting regarding Parliamentary determination of law; the court held that a "blanket ban" on assisting suicide was not outside the margin of appreciation afforded to Convention states on that issue as section 2 of the Suicide Act 1961 did not impose what the European Court of Human Rights would regard as an impermissible "blanket ban" on assisted suicide, which would take it outside the margin of appreciation. As the European Court had decided that it was for the contracting states to decide whether their own law on assisted suicide infringed Article 8 then the domestic courts had constitutional competence to decide whether section 2 of the Suicide Act 1961 infringed Article 8 of the Convention. The court further held that it would not be institutionally inappropriate, or only appropriate if Parliament refused to address the issue, for a domestic court to consider whether section 2 of the Suicide Act 1961 infringed the Convention. Further the court held that the interference with Article 8 was grave and that the arguments presented in favour of the current law were not overwhelming and the official attitude close to tolerating assisted suicide in certain situations. This appeal raised issues similar to those previously determined under common law and that the rational connection between the aim and effect of section 2 of the Suicide Act 1961 was weak. Further there was no compelling reason for the court simply ceding jurisdiction to Parliament. Provided the evidence and the arguments justified such a conclusion, the court could properly hold that section 2 of the Suicide Act 1961 infringed article 8 and to consider a declaration of incompatibility. But the court went on that it would not be institutionally appropriate for the court to grant a declaration at the instant time and Parliament should be given the opportunity to consider amending section 2 of the Suicide Act 1961 in the light of this judgment. Further, on the evidence and arguments in the appeal the court felt it was not in a position to make a declaration. Further the court held it should not involve itself with the terms of the DPP's policy, albeit it expected the DPP to clarify her policy. It was one thing for the court to decide that the DPP must publish a policy, and quite another for it to dictate what should be in that policy. It would not be appropriate to order the DPP to amend the policy. Instead, she would be left to review the policy's terms. Further Lord Sumption expressed the view as that the issue of whether relaxing the absolute prohibition would involve unacceptable risks to vulnerable people should be decided by Parliament. The issue involved a choice between mutually inconsistent moral values, about which there was no consensus. Parliament had made the relevant choice in enacting the Suicide Act 1961 and the Parliamentary process was a better way of resolving issues involving controversial questions of fact arising from moral and social dilemmas. For Lady Hale she expressed the view that the law was incompatible with Convention rights. The complexity of the moral argument around the protection of vulnerable people told against relying on that as the legitimate aim of the legislation. It did not justify a universal ban on assisted suicide. A legal system should be able to devise a process for identifying those people who should be allowed help to end their lives. A declaration of incompatibility should be made. (click here for the judgment).