Sunday 26 January 2020

Legal go-ahead for hearing of case of ‘locked in’ man who wants to die

Cathy Gordon and John Aston

LEGAL action brought by locked-in syndrome sufferer Tony Nicklinson, who wants a doctor to be able to end his "intolerable" life lawfully, can go ahead following a judge's ruling today.

The decision was announced at the High Court in London by Mr Justice Charles, who had been asked to decide on a preliminary "strike out" application in the case made by the Ministry of Justice.

He had heard argument that it was not for the courts to act, but Parliament.

Announcing his decision today the judge allowed most of Mr Nicklinson's case to proceed - striking out one part of his claim.

Mr Nicklinson, 57, who is married with two grown-up daughters and lives in Melksham, Wiltshire, wants a doctor to be "lawfully" able to end his life, which he sums up as "dull, miserable, demeaning, undignified and intolerable".

He launched a legal action seeking court declarations that a doctor could intervene to end his "indignity" and have a "common law defence of necessity" against any murder charge.

At a recent hearing, Paul Bowen, for Mr Nicklinson - who suffered a stroke in 2005 - said the Ministry of Justice had not advanced any arguments which were a sufficient "knock-out blow" to justify striking out the action.

The judge gave Mr Nicklinson the go-ahead to take his case further in judicial review proceedings in relation to two of three declarations sought.

He ruled that Mr Nicklinson "has established an arguable case in support of the declaration he seeks relating to the availability of a defence of necessity".

He added: "Accordingly, I shall not strike out that part of his claim, and so far as it is necessary for me to do so, I give permission for him to seek such relief by way of judicial review".

When the case goes to a full hearing Mr Nicklinson will be seeking a declaration that "it would not be unlawful, on the grounds of necessity, for Mr Nicklinson's GP, or another doctor, to terminate or assist the termination of Mr Nicklinson's life".

Mr Justice Charles also gave the green light in relation to a second declaration sought by Mr Nicklinson over his right to respect for private life under Article 8 of the Human Rights Convention.

He said he had concluded that Mr Nicklinson "has established an arguable case in support of the declaration he seeks in respect of Article 8" and would therefore not be striking out that part of his action.

The declaration sought is that the "current law of murder and/or of assisted suicide is incompatible with Mr Nicklinson's right to respect for private life under Article 8...in so far as it criminalises voluntary active euthanasia and/or assisted suicide".

But the judge struck out his case in relation to a third declaration.

That declaration was that "existing domestic law and practice fail adequately to regulate the practice of active euthanasia, both voluntary and involuntary", in breach of Article 2 - the right to life.

Mr Justice Charles said in his judgment Mr Nicklinson did not have any realistic chance of persuading a court to grant that declaration "even if it is assumed that his underlying arguments based on the position of others are arguable".

He explained:" The reason for this is that the court should not engage in that debate because it is a matter for Parliament."

The judge said: "The crucial distinction between this conclusion in respect of the third declaration and my conclusions in respect of the first two declarations sought is the point that, in support of the first two, the claimant is advancing an argument based on his asserted rights."

Before today's ruling Mr Nicklinson's wife, former nurse Jane Nicklinson, said there was a "huge amount" of public support for his bid for a doctor to be able to "lawfully" end his life.

"The only way to relieve Tony's suffering will be to kill him. There is absolutely nothing else that can be done for him," she told BBC Radio 4's Today programme.

"We know there are doctors out there who would do it if it is made legal."

She added: "It is what he wants and we are all - the girls and I and his sister and all my family - are totally behind him.

"If you knew the kind of person that he was before, a life like this is unbearable for him.

"People think he wants to die straight away. He doesn't - he just wants to know that when the time comes he has a way out."

Mr Justice Charles said the underlying issues in the case "raise questions that have great social, ethical and religious significance and they are questions on which widely differing beliefs and views are held, often strongly".

He pointed out that the issues before him only related to whether Mr Nicklinson's arguments "have any real prospect of success or whether there is some other compelling reason why these proceedings should be tried".

The circumstances in which Mr Nicklinson and his family find themselves were ones which "evoke deepest sympathy".

Mr Justice Charles said Mr Nicklinson "does accept that he is now inviting the court to cross the Rubicon".

Mr Nicklinson "asserts that it is at least arguable that the common law should develop or change to provide a lawful route to ending his suffering by ending his life at a time of his choosing with the assistance by positive action of a doctor in controlled circumstances that have been sanctioned by the court".

The judge added: "He asserts that, at least arguably, the last conditions based on the involvement of the court, provide a powerful counter to the argument that, to protect the vulnerable, the common law should not develop in the way argued for by the claimant."

Mr Nicklinson's position was that he and others in a similar predicament are not vulnerable.

He says that if the courts can grant declarations and set the circumstances in which the life of someone who lacks capacity can be ended then "it could and should do so in his case".

And by "so doing it would set in place a process that would protect rather than harm the vulnerable".

The judge said he agreed "that that is arguable".

Mr Nicklinson accepted that "what he is seeking to do is to change the existing understanding of the common law".

"The starting points for his argument are the nature of the common law, and so its ability to develop, adapt or change to meet new or changing circumstances, the moral arguability of the result he seeks and the point that his arguments have not been expressly raised and addressed before.

"In my view, all of these points support an arguable base for the result sought by the claimant."

Mr Nicklinson argues that the defence of necessity is available to a charge of murder or assisted suicide "and that it can and should be developed on a case-by-case basis".

He also says that the law on the availability of necessity as a defence, or potential defence, to murder or assisted suicide "is not as fixed or as clear" as the Ministry of Defence (MoJ) asserts.

The judge said he had been of the provisional view that only Parliament could bring about the development and change sought by Mr Nicklinson.

But he said "counsel for the claimant has persuaded me that it is arguable that this is not the case".

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