DPP is expected to clarify her policy with regard to healthcare professionals
A decision handed down from the Supreme Court today in the cases of Nicklinson, Lamb and ‘Martin’ puts significant pressure on both Parliament and the Director of Public Prosecutions (DPP) to reconsider the law and prosecuting policy on assistance to die. Whilst the appeals of Nicklinson, Lamb and Martin were unsuccessful, today’s judgment makes clear that both Parliament and the DPP should look again at the issues.
With Lord Falconer’s Assisted Dying Bill to be debated in the House of Lords on Friday 18th July, the Supreme Court has issued a clear warning to Parliament that if it does not address the issue of assisted dying, the Courts may. Though divided on the issue of whether the Suicide Act’s universal prohibition on assisted suicide is incompatible with the human right to private and family life – protected under Article 8 of the European Convention on Human Rights (ECHR), a majority of the justices ruled that the Court could in theory declare the universal ban on assisted suicide incompatible unless Parliament acts to reform it.
Lord Neuberger, President of the Supreme Court, said in his judgement:
“Parliament now has the opportunity to address the issue of whether section 2 [of the Suicide Act] should be relaxed or modified, and if so how, in the knowledge that, if it is not satisfactorily addressed, there is a real prospect that a further, and successful, application for a declaration of incompatibility may be made.”
Similarly, whilst the Court refrained from ordering the Director of Public Prosecutions (DPP) to clarify the prosecuting policy on assisted suicide in relation to healthcare professionals, it is clear that she is expected to look again her policy in the light of comments made in the judgment.
In relation to this issue, Lord Neuberger stated:
“If the DPP’s policy does not mean what she intends it to mean, and this has been made clear in open court, then it is her duty…to ensure that the confusion is resolved.”
Commenting on the decision Sarah Wootton, Chief Executive of Dignity in Dying said:
“The Suicide Act is now over 50 years old and is out of touch with the problems facing dying Britons in the 21st Century. Public opinion is resolutely in favour of change and now the Supreme Court has clearly indicated that it is only a matter of time before the law is reformed. If Parliament is unwilling to address the issue, then ultimately the Courts will.
“The House of Lords has the opportunity to begin the process of reform when Lord Falconer’s Assisted Dying Bill is debated by Peers on 18th July. Ultimately a law passed by Parliament, with clear criteria and upfront safeguards is preferable to decriminalisation by stages. Parliament can provide both greater choice and greater protection; we need a compassionate law that can safeguard choice for those at the end of life.”
Dignity in Dying’s intervention in the ‘Martin’ case was supported by Margaret John who has terminal ovarian cancer. Margaret commented:
“A change in the law will not come in time to help me have the choice of an assisted death, but I am happy to have lived to see the Supreme Court giving Parliament the kick it needed to ensure this issue gets the time and attention it deserves.”
Roch Maher who is terminally ill with Motor Neurone Disease commented:
“The Supreme Court’s decision says that Parliament and the DPP need to face up to the reality of the impact the current law has on people in my position, our families and doctors. I think the Courts have given Parliament its first yellow card, if they don’t act then this issue will be back in the Courts so that they can decide a fair way forward for dying people who want choice at the end of life. I hope Parliament will take this very seriously and act now.”
Lord Falconer’s Bill, supported by Dignity in Dying, would allow terminally ill mentally competent adults the choice of an assisted death. This Bill would not cover people with locked in syndrome, or any other chronic illness or disability, who are not also terminally ill. Subject to passing its Second Reading on 18 July, the Bill will go on to be scrutinised by a Committee of the Whole House where the safeguards and criteria will be reviewed and debated clause by clause.
Dignity in Dying’s intervention in the case was 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 if they are able. If you would like to request an interview please contact Jo Cartwright on firstname.lastname@example.org or 02074797737.
The full judgement and a summary will be available from: http://supremecourt.uk/ from 9.45am on Wednesday 25th June.
The prosecuting policy
The Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide is available here: http://www.cps.gov.uk/publications/prosecution/assisted_suicide.html.
Summary of the case outcomes
None of the nine justices ordered the Director of Public Prosecutions (DPP) to clarify the prosecuting policy on assisted suicide in relation to healthcare professionals. However, Lord Neuberger, Lady Hale, in particular, made it clear that the justices expect the DPP to look again at her policy in the light of their concerns and comments, and to amend it as she sees fit.
This is, in particular, to address a clear contrast between what the prosecuting policy actually says about healthcare professionals and assisted suicide, and the interpretation given to it by the DPP’s legal counsel during the court hearing on her express instruction (this was essentially agreeing with Lord Judge’s interpretation in his decision on the case at the Court of Appeal).
Whilst there was no declaration of incompatibility, several of the justices indicated that they think the court could (depending on the application before it) declare section 2 of the Suicide Act incompatible with Article 8 ECHR rights in the future if Parliament does not amend it.
Lord Neuberger, Lord Wilson and Lord Mance accept that, in the right case and at the right time, it would be open to the Supreme Court to make a declaration that section 2 of the Suicide Act 1961 is incompatible with the right to respect for private life protected by article 8 of the European Convention on Human Rights. However, they would prefer that Parliament have an opportunity of investigating, debating and deciding upon the issue before a court decides whether or not to make such a declaration.
Lady Hale and Lord Kerr would make a declaration of incompatibility now.