Steps in a right to die test case

In 2012, Death and dying, Testing project on February 9, 2012 at 11:40 am

In a recent article, ‘Guarding the gates of St Peter: life, death and law making’ (2011) Legal Studies 31, (4), 644-666, I argued that the decision of the House of Lords in R (Purdy) v DPP  [2009] UKHL 45 raised some serious constitutional problems about the role of judicial law making. Following that case the Director of Public Prosecution issued new guidelines on the decision to prosecute, but I have suggested that these have been essentially designed to distinguish suicide from homicide, not homicide from euthanasia. As Hazel Biggs has argued, they are therefore ‘largely ineffectual in the broader context of the debate about assisted dying’  (‘Legitimate compassion or compassionate legitimation? Reflections on the policy for prosecutors in respect of cases of encouraging or assisting suicide’. (2011) Feminist Legal Studies, 19, (1), 83-92.  We should not therefore be surprised that they have already given rise to challenge in the courts by people who feel that the law on assisted dying is unacceptable.

Tony Nicklinson’s case has already been before the courts twice on preliminary issues. First whether the DPP’s guidance exposed those giving advice to him on his options to the risk of prosecution because it identified professional involvement as an indication in favour of prosecution. In this first step, the court permitted doctors and lawyers to help him prepare his case and talk to individuals or organisations – including Dignitas in Switzerland – which might be able to assist him: “the solicitors may obtain information from third parties and from appropriate experts for the purpose of placing material before the court and that third parties may co-operate in so doing without the people involved acting in any way unlawfully”. In the second step, on which a ruling is awaited, the Ministry of Justice has sought to have his challenge to the law struck out as having no realistic prospect of success because the law is clearly established and only Parliament could change it.  We await the judgment of Charles J on this matter.

Jonathan Montgomery

  1. The House of Lords debated assisted suicide and the DPP’s policy (again) on Feb 13 2012. It is difficult to see what was added to the debate that was not already known. In my article in Legal Studies (see main post) I cited peers who suggested that it was a case of people plugging away because they did not like the first answer. In this debate, a significangt number of medical peers reiterated professional oppostion to legalisation of assisted dying. Again, nothing new there. According to Lord Bach, we can expect a further skirmish in this war of attrition in the House of Commons next month. http://www.publications.parliament.uk/pa/ld201212/ldhansrd/text/120213-0002.htm#12021316000099

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