Nicklinson v Ministry of Justice [QBD]

JurisdictionEngland & Wales
JudgeMR JUSTICE CHARLES,Charles J
Judgment Date12 March 2012
Neutral Citation[2012] EWHC 304 (QB)
Docket NumberCase No: HQ11X04443
CourtQueen's Bench Division
Date12 March 2012

[2012] EWHC 304 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr Justice Charles

Case No: HQ11X04443

Between:
Tony Nicklinson
Claimant
and
Ministry of Justice
Defendant
and
Director of Public Prosecutions
1st Interested Party
and
Jane Nicklinson
2nd Interested Party

Paul Bowen (instructed by Bindmans LLP) for the Claimant

David Perry QC and James Strachan (instructed by TSol) for the Defendant

Hearing dates: 23 January and 8 February 2012

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

MR JUSTICE CHARLES Charles J

General Introduction,

1

As Lord Bingham said in (R)Pretty v DPP [2002] 1 AC 800, the underlying issues in this 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.

2

The issues before me relate, and relate only, to whether the Claimant's arguments have any real prospect of success or whether there is some other compelling reason why these proceedings should be tried. There was an issue between the parties on whether these proceedings should have been brought by way of judicial review rather than by action for declarations. Sensibly, it was agreed that, at this stage, nothing turns on this because there is no effective difference between the tests to be applied on the Defendant's application to strike out the present proceedings and for permission to bring a judicial review.

General Factual Background

3

The Claimant is in his late 50s. Hhe had a stroke in 2005 whilst on a business trip in Athens which left him paralysed below the neck and unable to speak. He was a very active and outgoing man with a busy and active family, working and social life. He communicates by blinking or limited head movement. Initially, this was only by reference to a board with letters on it but he now also has an Eye Blink Computer. He and his wife have sworn statements in these proceedings which describe in vivid and moving terms the predicaments of the Claimant, his wife and two daughters. At the beginning of his first statement in these proceedings, after referring to his stroke the Claimant says:

" It left me paralysed below the neck and unable to speak. I need help in almost every aspect of my life. I cannot scratch if I itch, I cannot pick my nose if it is blocked and I can only eat if I am fed like a baby—only I won't grow out of it, unlike the baby. I have no privacy or dignity left. I am washed, dressed and put to bed by carers who are, after all, still strangers. You try defecating to order whilst suspended in a sling over a commode and see how you get on.

I am fed up with my life and don't want to spend the next 20 years or so like this. Am I grateful that the Athens doctors saved my life? No, I am not. If I had my time again, and knew then what I know now, I would not have called the ambulance but let nature take its course. I was given no choice as to whether or not I wanted to be saved. However, I do concede that it was a fair assumption given that I had asked for the ambulance and associated medical staff.

What I object to is having my right to choose taken away from me after I had been saved. It seems to me that if my right to choose life or death at the time of initial crisis is reasonably taken away it is only fair to have the right to choose back when one gets over the initial crisis and have time to reflect.

I'm not depressed so do not need counselling. I have had over six years to think about my future and it does not look good. I have locked in syndrome and I can expect no cure or improvement in my condition as my muscles and joints seize up through lack of use. Indeed, I can expect to dribble my way into old age. If I am lucky I will acquire a life-threatening illness such as cancer so that I can refuse treatment and say no to those who would keep me alive against my will.

By all means protect the vulnerable. By vulnerable I mean those who cannot make decisions for themselves just don't include me. I am not vulnerable, I don't need help or protection from death or those who would help me. If the legal consequences were not so huge i.e. life imprisonment, perhaps I could get someone to help me. As things stand, I can't get help.

I am asking for my right to choose when and how to die to be respected. I know that many people feel that they would have failed if someone like me takes his own life and that life is sacred at all costs. I do not agree with that view. Surely the right and decent thing to do would be to empower people so that they can make the choice for themselves. Also, why should I be denied a right, the right to die of my own choosing when able bodied people have that right and only my disability prevents me from exercising that right? "

4

I believe that this gives a picture, albeit a very incomplete one, of the circumstances in which the Claimant and his family find themselves. As the Defendant recognises and reiterates they are circumstances that evoke deepest sympathy.

The relief sought

5

The Claimant seeks three declarations, namely:

i) 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.

ii) Further or alternatively, a declaration 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, contrary to sections 1 and 6 Human Rights Act 1998, in so far as it criminalises voluntary active euthanasia and/or assisted suicide.

iii) Further or alternatively, a declaration that existing domestic law and practice fail adequately to regulate the practice of active euthanasia (both voluntary and involuntary), in breach of Article 2.

6

The first declaration is sought on the basis that the common law defence of necessity is available to a charge of murder in the case of voluntary active euthanasia and/or to a charge under section 2(1) Suicide Act 1961 in the case of assisted suicide provided that: (a) the Court has confirmed in advance that the defence of necessity will arise on the facts of the particular case; (b) the Court is satisfied that the person is suffering from a medical condition that causes unbearable suffering; there are no alternative means available by which his suffering may be relieved; and he has made a voluntary, clear, settled and informed decision to end his life; (c) the assistance is to be given by a medical doctor who is satisfied that his or her duty to respect autonomy and to ease the patient's suffering outweighs his or her duty to preserve life.

7

For present purposes the facts as asserted by the Claimant are not disputed and so, in assessing whether his claim is arguable, I have assumed that at trial the court would find that the Claimant has full capacity and that the matters set out in paragraph 6 (b) and (c) above exist.

8

The existence and the combined effect of all these factors is a central point in the Claimant's arguments.

The common law doctrine of necessity

9

This is set out in Archbold at 17/128 and in In re A (Children) (Conjoined Twins: Surgical Separation) [2001] Fam 147 as follows:

" An act which would otherwise be a crime may in some cases be excused if the person accused can show that it was done only in order to avoid consequences which could not otherwise be avoided, and which, if they had followed, would have inflicted upon him or upon others whom he was bound to protect inevitable and irreparable evil, that no more was done than was reasonably necessary for that purpose, and that the evil inflicted by it was not disproportionate to the evil avoidedThe extent of this principle is unascertained. It does not extend to the case of shipwrecked sailors who kill a boy, one of their number, in order to eat his body. "

10

I was also referred to an extract from Sanctity of Life and the Criminal Law written by Glanville Williams in 1957 where he said:

" Under the present law, voluntary euthanasia would, except in certain narrow circumstances, be regarded as suicide in the patient who consents and murder in the doctor who administers;

More specifically, the following principles may be stated:

(1) If the doctor gives the patient a fatal injection with the intention of killing him, and the patient dies in consequence, the doctor is a common law murderer because it is his hand that has caused the death. Neither the consent of the patient, nor the extremity of his suffering, nor the imminence of death by natural causes, nor all these factors taken together is a defence. This, at any rate is always assumed by lawyers, though there is no case in which the argument that the concurrence of all three factors may present a defence has been actually advanced and decided. It is by no means beyond the bounds of imagination that a bold and humane judge might direct the jury, if the question were presented, that voluntary euthanasia may in extreme circumstances be justified under the general doctrine of necessity. Just as in the case of Rex v Bourne, the jury were directed that the unborn child may be destroyed for the purpose of preserving the yet more precious life of the mother, so, in the case of voluntary euthanasia, it is possible to imagine the jury being directed that the sanctity of life may be submerged by the overwhelming necessity of relieving unbearable suffering in the last extremity, where the patient consents to what is done and where in any event no span of useful life is left to him. Although a persuasive argument can be advanced in support of such a direction, it must be emphasised that no hint of it appears in the...

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  • Health Alert - 19 March 2012
    • Australia
    • Mondaq Australia
    • 20 March 2012
    ...JUDGMENTS United Kingdom Tony Nicklinson v Ministry of Justice [2012] EWHC 304 (QB) Tony Nicklinson (claimant) became paralysed from the neck down after suffering a stroke. Due to his appalling lifestyle, the claimant sought declarations from the High Court of Justice in England It would no......

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