Dignity in Dying intervenes in ‘right to die’ court case to argue current lack of clarity in DPP’s Policy leaves dying people isolated and without access to professional advice on their options for a dignified death
‘People in my position, who are terminally ill, should have choice and control over their death; we should not be forced to suffer against our wishes at the end of life.’
Dignity in Dying is intervening in the Martin ‘right to die’ case in order to present the Court with the experiences of healthcare professionals and our members who are terminally ill, for whom the current law on assistance to die is failing.
Whilst the Director of Public Prosecution’s (“DPP”) Policy on Assisted Suicide suggests that a person who in compassionate circumstances assists a loved one to die is unlikely to be prosecuted, it explicitly puts healthcare professionals at heightened risk of prosecution. The Policy is woefully unclear and uncertain on the circumstances which could lead to a doctor or other healthcare professional being prosecuted, and there is also a lack of guidance from professional and regulatory bodies on how a doctor or other healthcare professional should react when asked by a patient for information on assisted dying. This leaves patients and healthcare professionals isolated as healthcare professionals are unsure whether they can answer patients’ questions about Dignitas, for example, or about what other options the patient may have to control the timing and manner of their own death.
Both Dignity in Dying members and healthcare professionals have found that the lack of clarity in the Policy in relation to healthcare professionals has serious, negative consequences, as it acts as a barrier to open communication between patients and professionals at a time when patients really need professional support. It risks making sources such as the internet the only means for dying patients of obtaining information key to giving them greater choice and control over their death.
Margaret John is 73 years old and was diagnosed in 2009 with incurable ovarian cancer.
‘‘I do not want to die yet, but when I do I want to know I have choices. I have discussed managing my end-of-life care with my GP and he was very clear that he could not discuss assisted dying with me, but we were able to talk about other aspects of end-of-life care, like pain relief. I would not attempt to discuss assisted dying again with a healthcare professional as I would not want to put them in a difficult position or at risk of prosecution in order to fulfil my desire for what I consider to be a good and dignified death.
‘Without being able to discuss this with my healthcare team I do not really know what options are available to me in order to have the sort of death I hope for, and this uncertainty has left me feeling helpless and out of control. I fear my only real option is to attempt to end my life alone, and I don’t think I should have to resort to that. People in my position, who are terminally ill, should have choice and control over their death, we should not be forced to suffer against our wishes at the end of life.’
Roch Maher is 52 years of age and is married with two grown-up children. He was diagnosed with Motor Neurone Disease (MND) in 2009.
‘The current situation leaves terminally ill people like me, who want choice, feeling they have nowhere to turn: I would like to have an open conversation with my doctors about assisted dying but I have decided against it as I don’t want them to be accused of encouraging suicide.
‘This case could improve the current situation but we really need an assisted dying law which would safeguard people in my position and doctors, and protect family members.’
London-based Baker & McKenzie Partner Harry Small said:
‘We’re delighted to act for Dignity in Dying on a pro bono basis in relation to its intervention in the ‘Martin’ case. This appeal raises important public interest issues concerning the law of assisted suicide in England and Wales and, in particular, the DPP’s Policy for prosecutors in respect of cases of encouraging or assisting suicide. The present lack of clarity in the DPP’s Policy leaves both healthcare professionals and patients in an impossible situation and the requirement for legal certainty is of paramount importance, especially in the context of personal autonomy and human dignity.’
Sarah Wootton, Chief Executive of Dignity in Dying said:
‘The lack of clarity for healthcare professionals in this area is a big problem. The DPP’s Policy on assisted suicide explicitly puts healthcare professionals at heightened risk of prosecution, and the lack of adequate guidance leaves them isolated and unsure of how and whether they can support their patients to have the kind of death they would choose.
‘If the Policy was clearer in relation to healthcare professionals, which is what Dignity in Dying is arguing for, the various professional medical organisations could produce clearer guidance on how to respond to patient requests for assistance to die. Patients would benefit from the peace of mind of knowing they could discuss these issues openly with their healthcare team, and this would reduce the risk of patients taking a decision to end their life without having discussed their reasons, concerns and any other treatment options with their doctors.
‘While winning this case could improve the situation for patients and healthcare professionals under the current law, it cannot change the law. Parliament must act to provide a safeguarded and compassionate approach to suffering at the end of life, and we hope it will do just that when Lord Falconer’s Assisted Dying Bill is before Parliament in the New Year.’
The Martin case will be heard on two (possibly three) consecutive days between Monday 16th and Thursday 19th December at the Supreme Court. The case is separate to, but being heard at the same time as, the Nicklinson/Lamb case. Dignity in Dying’s intervention will be heard during the Martin case, and is likely to be on 19th December.
New case studies
Dignity in Dying’s intervention in the case is supported by witnesses including a healthcare practitioner, the Chair of Healthcare Professionals for Assisted Dying (HPAD), and two terminally ill patients who are also members of Dignity in Dying. One of those is Roch Maher, a 52-year-old man with Motor Neurone Disease (MND), and the second is Margaret John, a 73-year-old woman with terminal cancer.
Both are willing to do interviews around the case, but these would need to be arranged in advance and with plenty of time. Please bear this in mind when planning.
If you would like to request an interview please contact Jo Cartwright on firstname.lastname@example.org or 02074797737.
Details of the case
Martin (also referred to as ‘AM’) is severely disabled due to a stroke. He wants to be able to end his life at Dignitas, but cannot do so without the help of healthcare professionals. There are two elements to Martin’s case:
• Firstly, that the Director of Public Prosecutions’ prosecuting policy on assisted suicide (‘the Policy’) is an unjustified interference with Martin’s Article 8 rights under the European Convention of Human Rights (ECHR), because it is so unclear in relation to healthcare professionals: there is a lack of clarity about whether a healthcare professional would be likely to be prosecuted for helping Martin to obtain information about his options for the end of his life.
• Secondly, that the DPP’s policy discourages the sort of compassionate assistance that Martin seeks, and that this discouragement disproportionately interferes with Martin’s Article 8 rights.
Dignity in Dying is intervening in support of the first of Martin’s arguments: that the Policy is unclear in relation to healthcare professionals. This argument was successful at the Court of Appeal stage but is now being appealed by the DPP. Dignity in Dying’s submissions are supported by witnesses including healthcare professionals and two terminally ill patients who are also members of Dignity in Dying. These witnesses explain how the lack of clarity and uncertainty in the Policy in relation to healthcare professionals has serious, negative consequences, and acts as a barrier to open communication between patients and professionals at a time when patients are in great need of professional support.
If the Supreme Court agrees with Martin that the Policy is in breach of Article 8 (2) of the ECHR, the DPP will be required to clarify how the Policy applies to healthcare professionals.
If, however, the DPP’s appeal against the Court of Appeal’s decision on this point is successful, Martin would then need to decide whether to seek to apply to the European Court of Human Rights in Strasbourg.
Legal arguments and background
Baker & McKenzie is acting on a pro bono basis for Dignity in Dying, alongside Lord Pannick QC and Ravi S. Mehta of Blackstone Chambers. The Baker & McKenzie team consists of Partner Harry Small, Senior Associate Nicola Mead-Batten, Associate Fiona Lockhart and Trainee Amber Schild.
Article 8 of the ECHR – Article 8.1 of the ECHR says that individuals have a right to private and family life, and article 8.2 says that governments and other public authorities cannot interfere with citizens’ right to private and family life unless such interference is “in accordance with the law” and necessary to protect the rights and freedoms of other citizens. Martin’s legal team will argue that at present the Policy interferes with Martin’s right to make decisions about the end of his life (which is part of the right to private life under Article 8.1) and that this interference is not “in accordance with the law” because the Policy is so unclear and lacking in legal certainty.
Purdy case – In 2009 as a result of Debbie Purdy’s case the House of Lords (now Supreme Court) ordered the DPP to publish a policy setting out the factors taken into account when deciding whether to prosecute in assisted suicide cases, so that the application of the law would be ‘foreseeable and accessible’. Following a consultation the DPP published the Policy in February 2010. Whilst the Policy is clearer on the consequences for a person who in compassionate circumstances helps a loved one to die, Martin and Dignity in Dying believe the Policy does not provide sufficient clarity (foreseeability and accessibility) for other persons, in particular healthcare professionals, to know the circumstances which might lead to prosecution.
Martin case background – The first element of Martin’s case is, that the DPP’s Policy is in breach of Article 8(2) of the European Convention on Human Rights (ECHR) which provides that the Article 8(1) right to respect for private life can only be interfered with “in accordance with the law”. The law in this context is required to be accessible and foreseeable. Martin argues that the DPP’s Policy lacks foreseeability because the consequences of the Policy in relation to healthcare professionals are so unclear and uncertain. In particular, there is a lack of clarity about whether a healthcare professional would be likely to be prosecuted for helping Martin to obtain information about his options for the end of his life. Two of the three judges who heard Martin’s case in the Court of Appeal agreed that the Policy fails to provide sufficient clarity with respect to healthcare professionals. The DPP is appealing that decision to the Supreme Court.
Nicklinson/Lamb case background – Tony Nicklinson and Paul Lamb suffered catastrophic life-changing events that left them both profoundly disabled. They wished to end their lives, but were unable to do so without medical assistance that would amount to murder or assisted suicide. The Nicklinson/Lamb case addressed the offences of murder and assisted suicide in the lower courts, but is now focussed solely on assisted suicide. This appeal, brought by Tony Nicklinson’s widow Jane and by Paul Lamb, is about whether the Suicide Act 1961 is compatible with their Article 8 rights under the European Convention on Human Rights (ECHR) – as they are so disabled that they could not end their life without the assistance of others. Nicklinson/Lamb’s legal team will argue that the Supreme Court should either allow a defence of necessity to be applied to assisted suicide; or declare that the Suicide Act is incompatible with Nicklinson and Lamb’s Article 8 rights; or, alternatively, send the case back to the Divisional Court with guidance for that Court on how to weigh Nicklinson and Lamb’s claims under Article 8(2).
Parliament must act – Whilst Dignity in Dying would like to see clarity for healthcare professionals on the DPP’s policy, ultimately Parliament must act to create a new, safeguarded assisted dying law which provides terminally ill mentally competent adults with the choice of an assisted death within upfront safeguards.