The Supreme Court handed down a landmark judgment today on the right to die cases of Jane Nicklinson & Paul Lamb.
 

1. Jane Nicklinson, acting in place of her deceased husband Tony Nicklinson, and Paul Lamb  did not obtain declarations under s 4 Human Rights Act 1998 that the current law on assisted suicide in s 2 Suicide Act 1961 is incompatible with their right to respect for private life under Article 8. However, a majority of the justices have sent a clear message to Parliament that the status quo may breach Article 8 and that Parliament should consider amending the Suicide Act 1961 in order to comply with the Human Rights Act 1988.

   Saimo Chahal – Solicitor for Jane Nicklinson and Paul Lamb said:
   “Whilst this is not exactly the result we were hoping for, and it does not provide an immediate remedy, it is nonetheless very welcome as we have succeeded in showing that the issue, despite the controversy surrounding it, is one that the courts can adjudicate on and indeed must, if Parliament does not take action soon to consider the plight of people like Paul. Jane and Paul can be very proud of the fact that they have made legal history in establishing what the courts should do when fundamental human rights are engaged, no matter how sensitive and difficult the moral and legal arguments are.  The stage is set for a Declaration to be made if Parliament does not take heed!
    

2. In a landmark ruling, the majority (5-4) found that the Supreme Court had jurisdiction to determine whether the ban on assisted suicide disproportionately interfered with the appellants’ Article 8 rights. 
3. The majority also found that, while great weight was to be given to Parliament’s views as expressed through the Suicide Act 1961, it was open to the Court to make a declaration of incompatibility under s 4 Human rights Act 1998 (HRA).  In this regard, the Appellants succeeded in their appeal as the Divisional Court and the Court of Appeal had dismissed their claims on the ground that it was for Parliament, not the Courts, to determine whether the ban on assisted suicide struck a proportionate balance between individual autonomy and the protection of the rights of others.
4. They warned Parliament that there is a real prospect that a further and successful application for a Declaration of Incompatibility may be made in the future if Parliament does not grapple with the issue.
5. The minority (Lords Sumption, Hughes, Clarke and Reed) would have dismissed the appeals on the same grounds as the Divisional Court and the Court of Appeal.
6. Two of the justices in the majority, including the Deputy President of the Supreme Court, Lady Hale and Lord Kerr, went on to hold that s 2 Suicide Act 1961 is incompatible with Article 8 and, left to themselves, would have made a declaration of incompatibility now.  They accepted that, whilst the protection of the weak and vulnerable may be enough to justify a general ban on assisting suicide, it was not sufficient to justify a ban which forces people like Mr Nicklinson and Mr Lamb to stay alive, for the sake of protecting other people, whilst they are subject to the cruellest suffering.
7. However, three of the five justices in the majority (Lords Neuberger, Mance and Wilson), held that this was one of those exceptional cases where it would be inappropriate to grant a Declaration of incompatibility at this stage.  The evidence before them was insufficient for them to be satisfied that the current prohibition on assisted suicide was disproportionate, although they considered the arguments in favour of the status quo to be ‘weak’.  Moreover, Parliament should be given the opportunity to debate the issues any declaration of incompatibility was made.
8. These three justices, together with Lords Clarke and Sumption, made it clear that they would expect to see the issue of whether there should be any change to the legislation covering those in the situation of Tony Nicklinson/Paul Lamb expressly debated in Parliament in the near future along with or in addition to the question of whether there should be legislation along the lines of Lord Faulkner’s Bill. 
9. Lords Neuberger, Wilson and Hale each give some support for a system of safeguards in which the ultimate decision-maker is the High Court, which already has experience of making extremely difficult life and death decisions involving those lacking capacity and those with capacity who choose to have life support systems terminated.   This was the very system proposed by the appellants in the case from the start.
10. The Supreme Court accepted that there is reliable statistical and anecdotal evidence which indicates that hundreds of people suffering from terminal or chronic conditions, whose lives are often painful and/or undignified, commit suicide annually and even that a significant number of them are assisted in doing so.   However, people like Tony Nicklinson and Mr Lamb cannot end their lives without assistance which they are unable to obtain because of the current state of law.
11. The Appellants have achieved much of what they set out to do.  The Supreme Court has established that even in an area where the Strasbourg Court will not intervene, the Human Rights Act confers jurisdiction on the courts to find a provision of primary legislation to be incompatible with Convention rights, allowing the domestic court to develop its own Human Rights Act jurisprudence which can, in turn, inform the development of human rights under the Convention.  The Supreme Court has held that there is nothing unconstitutional in the courts doing so even in an area of social and moral controversy where Parliament is the preferred forum in which to debate the issue.  The Court has indicated, in more or less strong terms, that the current ban on assisted suicide either is (Lords Kerr and Lady Hale) or may well be (Lords Neuberger and Wilson) incompatible with Article 8.  Although the “softly softly” approach of Lords Neuberger, Wilson and Mance has less legal force than the harder edged approach of Lady Hale and Lord Kerr, the eventual result is much the same as if a declaration of incompatibility had been made.  The stage is set for a further Human Rights Act challenge in the event that Parliament fails to grasp the nettle when it comes to debate Lord Falconer’s Assisted Dying Bill later this summer.

Please click here to view the full judgment

Notes

1. The appeal arises from the fact that Tony Nicklinson suffered a catastrophic stroke when he was aged 51 leaving him paralysed and with Locked in Syndrome. He needed 24 hour care, could not communicate save for blinking, and he could move his head and his eyes.   Despite loving and devoted attention from his wife, Jane and family he regarded his life as dull, miserable, demeaning, undignified and intolerable and had wished to end it in a dignified manner at a time of his choosing at home with his family. 
2. After nearly 2 years of battling with the Legal Aid Agency he won the right to public funding. Tony Nicklinson then applied to the High Court for a Declaration that it would be lawful for a doctor to kill him or to assist him in terminating his life or alternatively a Declaration that the current state of law was incompatible with his rights under Article 8 of the European Convention.  The High Court refused Tony Nicklinson’s claim on the ground that the Courts had no jurisdiction to entertain his claim because it was for Parliament, not the Courts, to decide whether the law should be changed.
3. Tony Nicklinson was devastated by the judgement and embarked on the painful course of self-starvation, refusing all nutrition, fluids and medical treatment.  He died of pneumonia on 22 August 2012.
4. Jane Nicklinson, his wife was then added as an applicant in the claim both in her own right and in her capacity as Administratrix of Mr Nicklinson’s estate.
5. Paul Lamb came forward and applied to be substituted in Tony’s place and took over the remainder of Tony Nicklinson’s claims.   Paul lamb was involved in a car crash in 1990, following which he was left completely immobile and wheelchair bound save that he is able to move his right hand slightly and can speak and communicate.   He requires 24 hour care for all of his daily needs.   He had stated that his life is monotonous, undignified and he is in constant pain which cannot be alleviated.  He wishes to be able to terminate his own life at the right time.   The applications were refused by the Court of Appeal.   Permission was given to appeal to the Supreme Court. 

Saimo Chahal QC (hon) of Bindmans LLP acted as Solicitor & Paul Bowen QC of Doughty Street Chambers, leading Guy Vassall-Adams of Matrix Chambers, acted as Counsel to Tony & Jane Nicklinson & Paul Lamb.