R (Nicklinson) v Ministry of Justice (Attorney General and another intervening) R (AM) v DPP and Others (Same intervening) [DC]

JurisdictionEngland & Wales
JudgeLord Justice Toulson,Mr Justice Royce,Mrs Justice Macur
Judgment Date13 November 2012
Neutral Citation[2012] EWHC 2381 (Admin)
Docket NumberCase No: CO/7774/2010; CO/7850/2011
CourtQueen's Bench Division (Administrative Court)
Date13 November 2012

[2012] EWHC 2381 (Admin)




Royal Courts of Justice

Strand, London, WC2A 2LL


Lord Justice Toulson

Mr Justice Royce


Mrs Justice Macur

Case No: CO/7774/2010; CO/7850/2011

The Queen on the Application of Tony Nicklinson
Ministry of Justice
Director of Public Prosecutions Jane Nicklinson
Interested Parties
And Between:
The Queen on the Application of Am
(1) Director of Public Prosecutions
(2) The Solicitors Regulation Authority
(3) The General Medical Council
An Nhs Primary Care Trust
Interested Party
The Attorney General Cnk Alliance Ltd (Care Not Killing)

Paul Bowen QC (instructed by Bindmans LLP) for Tony Nicklinson

David Perry QC and James Strachan (instructed by Treasury Solicitor) for the Ministry of Justice

Philip Havers QC and Adam Sandell (Instructed by Leigh Day & Co) for AM

John McGuinness QC (Instructed by CPS Appeals Unit) for the Director of Public Prosecutions

Timothy Dutton QC and Miss M Butler (instructed by Bevan Brittan) for the Solicitors Regulation Authority

Robert Englehart QC and Andrew Scott (Instructed by GMC Legal) for the General Medical Council

Jonathan Swift QC and Joanne Clement (Instructed by Treasury Solicitor) for the Attorney General

Charles Foster and Benjamin Bradley (Instructed by Barlow Robbins LLP) for the CNK Alliance Ltd


Hearing dates: 19-22 June 2012

Lord Justice Toulson



1. These are tragic cases. They present society with legal and ethical questions of the most difficult kind. They also involve constitutional questions. At the invitation of the court the Attorney General has intervened.


2. Put simply, the claimants suffer from catastrophic physical disabilities but their mental processes are unimpaired in the sense that they are fully conscious of their predicament. They suffer from “locked in syndrome”. 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. Neither is terminally ill and they face the prospect of living for many years.


3. I will refer to the claimants as Martin and Tony. Martin (which is not his real name) understandably wishes to preserve his privacy and the court has made an anonymity order. Tony's case has attracted a lot of public interest because he has taken part in public debate with the help of his wife, Mrs Nicklinson, and their daughters. As Mrs Nicklinson has said to the media, whatever the outcome of his case, there will be no winners. Either way, there is no happy ending in sight.


4. Barring unforeseen medical advances, neither Martin's nor Tony's condition is capable of physical improvement. Although they have many similarities, there are some differences in their condition. There are also differences in the orders which they seek and the ways in which their cases have been presented.




5. Martin would be capable of physically assisted suicide, but this would involve someone else committing an offence under the Suicide Act 1961, section 2. It would be possible for him to end his life at a Dignitas clinic in Zurich without an offence being committed under Swiss law; and if Martin's wife were willing to help him to do so, it is unlikely that she would face prosecution in England under the policy published by the Director of Public Prosecution (DPP) about prosecution for assisted suicide after the decision of the House of Lords in R (Purdy) v DPP [2009] UKHL 45, [2010] 1 AC 345. But Martin's wife, who is herself a nurse and devoted to his care, is understandably not willing to support Martin for that purpose, with which she does not agree, although she would wish to be with him to provide comfort and make her final farewell, if he were to succeed in his purpose by the help of others.


6. Martin's main claim is against the DPP, but the Solicitors Regulation Authority (SRA) and the General Medical Council (GMC) have been included in the proceedings. Because of the importance of the issues, I would give Martin permission to apply for judicial review.


7. In his claim Martin's condition is described in this way:

“6. Martin is 47 years old. He lives with his wife and his wife's daughter. In August 2008 he suffered a brain stem stroke. This has left him virtually unable to move. He cannot speak. He can communicate only through small movements of his head and eyes and, very slowly, by using a special computer that can detect where on a screen he is looking.

7. He is totally dependant on others for every aspect of his life. He lives in an adapted room in his family home. He spends almost all of his time in bed, although he can be taken out of the house. His care is provided by his wife…and by full-time carers provided by his local NHS Primary Care Trust.

8. Martin is fed by people putting food into his mouth. He is able to swallow. His medication goes through a tube through his abdominal wall into his stomach. He wears a convene (a sheath over his penis, attached to a tube, into which he urinates). He defecates into special underwear. Adjoining the room in which he lives, he has a specially adapted bathroom in which he can be washed.

9. He is, it is understood, not likely to die of natural causes in the near future.

10. Martin has a strong, settled and reasoned wish to end his life. He loves his family, and enjoys spending time with them, and he likes to read. But he finds his life and his condition following his stroke to be undignified, distressing and intolerable. He does not wish to go on living like this. And, because he finds his current life unbearable, he wishes to end his life as soon as possible.”


8. There are, it seems, two ways by which he might achieve that aim. One would be by using the services of Dignitas in Zurich, if he is able to afford them. It is said in his claim that Dignitas is not cheap and that Martin's resources are limited. The other means would be by self-starvation. There is medical evidence that this would involve considerable pain and distress, although it would be possible for medical staff to provide some alleviation in order to reduce his suffering without crossing the line of intentionally assisting his suicide attempt.


9. The primary relief sought by Martin is an order that the DPP should clarify his published policy so that other people, who may on compassionate grounds be willing to assist Martin to commit suicide through the use of Dignitas, would know, one way or the other, whether they would be more likely than not to face prosecution in England. The potential helper or helpers might be a member of the public who had no previous knowledge of Martin, a health professional or a solicitor who might act as an intermediary in making the necessary arrangements. The clarification which Martin now asks for is limited to the Dignitas scenario, because by the end of the hearing Philip Havers QC, on his behalf, accepted that no clarification is required regarding the self-starvation scenario, in view of things said during the course of the hearing.


10. If he succeeds in his claim against the DPP, Martin also seeks declarations in relation to the GMC and SRA in order that a doctor or solicitor who played a part in helping Martin to commit suicide via Dignitas, without facing risk of prosecution under the DPP's clarified policy, should not be exposed to the risk of professional disciplinary proceedings. In the alternative (and Mr Havers made it clear that this was very much a fallback position), if Martin fails in his claim against the DPP, he seeks a declaration that section 2 of the Suicide Act is incompatible with article 8 of the European Convention.




11. Tony is now aged 58. He suffered a catastrophic stroke in June 2005. He is paralysed below the neck and unable to speak. He cannot move anything but his head and eyes. He communicates by blinking to indicate a letter held up by his wife on a Perspex board. He also now has an eye blink computer which makes word processing faster for him. He has described it as a “ray of sunshine on an otherwise bleak horizon”, but the process of communication is still desperately slow. He estimates that it takes him 3 hours to write what a person without disabilities could do in 20 minutes. He is virtually housebound. Although the family has a wheelchair adapted car, he rarely goes out as he has lost interest in doing so. His meals are soft food, mashed up and taken orally, and fluids inserted directly into the stomach through the abdominal wall by a percutaneous endoscopic gastrostomy or PEG tube. Swallowing is a difficult and laborious business. He often coughs and has to have the saliva wiped from his face.


12. Tony's day presently consists of writing his memoirs and watching TV. In the morning two carers come to get him out of bed. They shower him, get him dressed and put him for a short time on a cycling machine. He is then given breakfast and placed in a wheelchair. He spends the morning writing and the afternoon watching TV. At 4pm two carers come to transfer him from the wheelchair to an armchair. At 10.30pm a carer helps Mrs Nicklinson to undress him, wash him and make him ready for bed, where he remains until 8.30am the following day. He has a night time carer to move him, which happens usually 3 or 4 times per night. Recently he took part in the making of a TV documentary which was broadcast on the eve of the hearing. The members of the court watched it.


13. In a statement he has summarised his condition in this way:

“My life can be summed up as...

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