Pleas to change law in locked-in syndrome cases rejected: ‘dispassionate court’ gets it right- compassionately

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The two cases of men with conditions resembling locked-in syndrome have been concluded. Heard before three judges in the High Court from 19-22 June, judgment was handed down at 2pm on Thursday 16 August.

Tony Nicklinson, 59 and paralysed from the neck down after a stroke in 2005, was actually arguing for permission that a doctor who performed voluntary euthanasia on him would have an effective defence when prosecuted for murder. He argued this on two grounds:

  1. A common law defence of necessity – his physical condition meant he could not kill himself even with assistance, and there was no other way he could achieve adequate relief from his overwhelming distress. (See Peter Saunders’ blog on necessity for fascinating historical background.)
  2. That the current legal position was interfering with his right to a private life under Article 8 of the European Convention on Human Rights, now incorporated in British law.

His legal team had described these applications as ‘a full frontal assault on the law on murder’ and agreed in court it was a ‘bold’ approach.

Tony Nicklinson had sought and achieved massive media publicity for months beforehand, and it will doubtless continue, but the other patient linked in the hearing (Martin) had avoided publicity, and indeed had a court ruling to protect his anonymity. He was seeking more modest ends to do with assisted suicide: greater clarification from the court about the likelihood of the Director of Public Prosecutions bringing criminal charges against a health professional or solicitor who might give assistance with his suicide at Dignitas, and similar clarification about disciplinary action from professional regulatory bodies.

CMF is a founder member of the Care Not Killing Alliance, who intervened formally in these cases via pro bono help from solicitors and counsel. The CNK submission confined itself to a succinct review of UK and European law and argument, and refused to enter the many ‘controversial and easily rebuttable’ arguments put forward in very lengthy submissions from both men’s legal teams.

The hearing itself stayed clearly focused on principle and legal precedent. So does the judgment which rejected all the arguments to change the law. The court examined in great detail the merits of these arguments, drawing on statute law, UK and European court rulings, debates in Parliament, the European Convention on Human Rights, evidence from advocates on both sides of the debate, and expert advice from the General Medical Council and Solicitors Regulation Authority.

The three judges, Lord Justice Toulson, Mr Justice Royce and Mrs Justice Macur, acknowledged cogently that while these are two tragic cases, it would be wrong for the court to change the current law. That issue is for Parliament, which has debated and voted against law change several times in recent years.

Months before the hearing, Tony had said ‘I am delighted that we can now move on to discuss the pertinent issues properly in a dispassionate court of law’. That dispassionate discussion has now happened, and disabled people are all the safer for this welcome result.

But – and it may be small comfort to Tony – I have been impressed by the compassionate approach of the court: recognising the desperate situations of the two men, in the fairness and tone of debate, and in that the three judges watched the Channel Four documentary about Tony transmitted the night before the hearing began.

A compassionate court got it right – dispassionately.

Posted by Dr Andrew Fergusson

(Dr Andrew Fergusson is a guest blogger. He chairs the Advisory Group of Care Not Killing.)



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