Melksham right-to-die man loses High Court battle (From Wiltshire Times)

Melksham right-to-die man loses High Court battle

2:31pm Thursday 16th August 2012 in News

Tony Nicklinson with wife Jane

Melksham locked-in syndrome sufferer Tony Nicklinson has lost his High Court battle for the legal right to end his life when he chooses with a doctor's help.

A second victim of the syndrome referred to as "Martin", 47, who cannot be identified, also lost his challenge to the legal ban on assisted dying.

Three judges sitting in London referred to their "terrible predicament"
and described their cases as "deeply moving and tragic".

Mr Nicklinson, 58, was left paralysed by a catastrophic stroke while on a business trip to Athens in 2005.

The court heard that he had been told his existence of "pure torture"
could continue - if a doctor could not help end it - for another 20 years or more.

But the judges unanimously agreed that it would be wrong for the court to depart from the long-established legal position that "voluntary euthanasia is murder, however understandable the motives may be".

Doctors and solicitors who encouraged or assisted another person to commit suicide were "at real risk of prosecution".

Refusing the stricken men judicial review, the judges ruled that the current law did not breach human rights and it was for Parliament, not the courts, to decide whether it should be changed.

Any changes would need "the most carefully structured safeguards which only Parliament can deliver".

Lord Justice Toulson, sitting with Mr Justice Royce and Mrs Justice Macur, said both are tragic cases which raise constitutional issues and "present society with legal and ethical questions of the most difficult kind".

Both Mr Nicklinson and Martin are victims of locked-in syndrome. They suffer from catastrophic physical disabilities, but their mental processes are unimpaired and they are fully conscious of their predicament.

Barring unforeseen medical advances, neither man's condition is capable of physical improvement.

Their circumstances are deeply moving, and their desire to have control over the ending of their lives "demands the most careful and sympathetic consideration".

But to allow their claims would have consequences far beyond the present cases.

The judge said: "Both have determined that they wish to die with dignity and without further suffering but their condition makes them incapable of ending their own lives," said the judge.

"Neither is terminally ill and they face the prospect of living for many years."

Mr Nicklinson wanted a declaration that it would not be unlawful "on the grounds of necessity" for his GP, or another doctor, to assist him to die.

Alternatively, he wanted a declaration that the current law on murder or assisted suicide was incompatible with his right to respect for his private life under Article 8 of the European Convention on Human Rights.

Martin was primarily seeking a court order forcing the Director of Public Prosecutions (DPP) to clarify his published policy so that professional people who might be willing to assist him to commit suicide through the use of Dignitas, the Swiss group that specialises in assisted dying, would know whether they would be "more likely than not" to face prosecution in England.

He also wanted a declaration that a doctor or solicitor who might help him would not risk professional disciplinary proceedings if it emerged through further clarification that they were not at risk of criminal prosecution.

Rejecting all the applications made by both men, Lord Justice Toulson said it would be wrong "for the court to depart from the long established position that voluntary euthanasia is murder, however understandable the motives may be..."

It would also be wrong to hold that Article 8 afforded a possible defence to murder, said the judge.

That would go beyond what the European Court of Human Rights in Strasbourg had decided and be inconsistent with the judgments of Britain's highest court, the House of Lords - now the Supreme Court.

The judge also ruled that the DPP's policy statement already made it clear to doctors and solicitors that encouraging or assisting another person to commit suicide "would carry with it a real risk of prosecution".

Whether the "risk" amounted to a "probability" would depend on the circumstances, but it would not be right to expect the DPP to reformulate his policy to meet a "foreseeability test" suggested by Martin's counsel.