David Foster comments on the ruling of the Nicklinson and Martin case
The two sad situations of Tony Nicklinson and Martin, came before the High Court which, whilst sympathetic, gave a clear lead on the basis of precedent and practicality that any change in the law to the prohibition on assisted suicide would have to be instigated by Parliament.
Martin is 47 and virtually unable to move. He can communicate only through movements of his head and eyes by using a special computer but can detect on a screen where he is looking. He is completely dependant upon others and is fed by putting food into his mouth. He loves his family and enjoys spending time with them and he likes to read.
Tony Nicklinson is 58 years old and suffered a catastrophic stroke in June 2005. He uses an eye blink computer which enables him to communicate slowly. Food is inserted directly into his stomach through a PEG tube. Swallowing is difficult.
Lord Justice Toulson made the lead judgment. He went back over the previous statutory history over suicide. He considered the Director of Public Prosecution's policy listing 16 factors tending in favour of prosecutions and 6 factors tending against prosecution. The Court then considered the European Convention of Human Rights particularly Article 2, the right to rife and Article 8, the right to someone's private and family life and his home.
He also noted - and it is important - that there had been a number of Parliamentary proposals for changing the law which have failed particularly in 2003, 2004, 2005, 2009 and then in March this year.
The Court considered the Law Commission on Murder, Manslaughter and Infanticide in 2006 which highlighted that a defence of necessity to murder "can easily become simply a mask for anarchy" so the concept of "compassion" - vague in itself - could very easily become a cover for self or ignoble reasons for killing, not least because people often act out of mixed motives. It was pointed out that the respected Lord Judge had quoted part of the Law Commission's Report in the case of Inglis . Put simply, mercy killing is murder. The interest of the state and preserving life overrides the otherwise all powerful interests of patient autonomy. English law admits no defence of mercy killing or euthanasia.
Lord Justice Toulson pointed out that constitutionally major changes involving matters of controversial social policy should be decided by Parliament especially if Parliament had rejected opportunities previously of clearing up a known difficulty. Secondly, the learned Judge emphasised that there were practical considerations which pointed to Parliament making changes as Parliament could also procure a surrounding framework regarding end of life care with appropriate procedural safeguards.
The Court considered a long line of authorities relating to end of life issues including the recent case of Haas v Switzerland  in which the applicant living in Switzerland had a long history of mental illness and wished to commit suicide. No doctor was willing to help him to do so. He complained that the authorities thereby violated his right under Article 8 to decide when and how to end his life. The Court held there was no violation. The Court similarly held that the prohibition on assisted suicide could not breach Article 8 or the European Convention on Human Rights and it pointed out that there was no Strasbourg authority which supported the proposition that a blanket ban on voluntary euthanasia is incompatible with Article 8. Lord Justice Toulson concluded that it would be wrong for the Court to hold that Article 8 requires voluntary euthanasia to afford a possible defence to murder. He said to do so would be to go far beyond anything which the Strasbourg Court had said would be inconsistent with the judgment of the House of Lords in previous cases and the Strasbourg Court in Pretty and would be to usurp the proper role of Parliament.
One of the claims that the Claimants made was that the Director of Public Prosecutions had effectively taken a whole identifiable category of case out of the ambit of the criminal justice system by clearly indicating that some cases would not face the criminal process. Counsel for the Director of Public Prosecutions rejected that assertion and the Court agreed: it is quite legitimate for the Director of Public Prosecutions to have published factors tending towards prosecution but still treat each set of circumstances on a case by case basis.
In conclusion, the Court was not willing to make changes in the law, nor compel the Director of Public Prosecutions to go beyond his established legal role. It is clear that under our system of government these are matters for Parliament to decide representing society as a whole after Parliamentary scrutiny and not for the Courts on the facts of an individual case or cases, however sad these may be. Such approaches are surely legally correct, sensible and ultimate fairest to the greatest number.