The defence of necessity and the Nicklinson case

The Court of Appeal has resoundingly rejected an argument to permit a defence of necessity to euthanasia and, by extension, to encouraging or assisting suicide (R (Nicklinson) v Ministry of Justice [2013] EWCA Civ 961). This is the less surprising outcome of the latest round of 'right to die' litigation which originally involved Tony Nicklinson (who died after his unsuccessful application to the Divisional Court in 2012). In order to keep the necessity argument running for the Court of Appeal, Paul Lamb was added as an appellant. Also appealing an adverse finding from the Divisional Court was 'Martin', who was seeking further clarification of the Director of Public Prosecutions' Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide.

The situations of Nicklinson, Lamb and 'Martin' are rehearsed in the case, and they make very sad reading. The critical points for present purposes are their acute physical disability, which affects or affected their ability to take their own lives; their wish not to go on living; and their undisputed competence.

This post is principally concerned with the necessity argument, but it is worth noting in passing that 'Martin' succeeded (by a 2-1 majority) in his argument that the DPP's Policy required further clarification in relation to the actions of assisters – perhaps professionals – who did not have a close connection with the person wishing to die. There is an interesting dissent on this issue from the Lord Chief Justice, whose scepticism towards the idea of offence-specific prosecutorial policies and charging guidance is clear, notwithstanding the gentle manner with which it is expressed. His concern is that these 'soft law' products are usurping 'proper' law-making in a constitutionally questionable manner (see [2013] EWCA Civ 961, at [169]):

In short, prosecutorial guidance is in danger of expanding into a method of law reform (if only by way of non-enforcement of the criminal law) which is outside the proper ambit of the DPP's responsibilities.

On this particular issue, one of the messages from Penney Lewis's post on the KCL Medical Ethics and Law blog on 'Martin's' success is 'be careful what you wish for', as the clarification of the policy may in fact lead to a hardening of the approach to the prosecution of professionals. This would inhibit the giving of the type of support which 'Martin' seeks.

 

Necessity: the issues

Back to the necessity argument. The questions here are essentially (i) whether a doctor who causes the consensual death of a competent adult in the position of Tony Nicklinson or Paul Lamb could benefit from a defence of necessity such as not to be liable for murder; and (ii) whether there is any scope for a defence of necessity to encouraging and assisting suicide, the logic being that if the defence could not be available to murder without also being available to this offence.

The Court of Appeal has answered unanimously and unequivocally no to both of these questions, although it remains to be seen whether any of the issues are given a more sympathetic hearing in the Supreme Court. What follows are some general observations about necessity followed by some more specific reflections on the arguments in Nicklinson.

 

Necessity: some general observations

Notwithstanding the opportunity that Nicklinson would give to the Supreme Court to consider some of the issues effectively de novo, there remains what sometimes appears to be a judicial fear of necessity. I would suggest that this is grounded in a number of related and respectable, if not always entirely convincing, concerns:

First, there is proper concern grounded in the rule of law. When I make a claim of necessity I am making a bold assertion that 'my situation is so bad that the normal rules don't apply to me'. What makes the claim doubly bold is that it is me making the claim on my own behalf. Two qualities of the rule of law which are relevant here are first, that legal rules presumptively apply to everybody, and secondly, that it is not for anybody – whether they are a 'normal' citizen or an agent of the State – to grant themselves dispensation from the application of the law or to take the law into their own hands. A necessity claim seeks to displace these normal conditions.

Secondly, there is another proper concern grounded in a sense of the appropriate constitutional role of courts. The argument goes that necessity claims may raise controversial issues of social policy, and those issues are best addressed by Parliament, with its democratic mandate. This is not to say that there is or should be universal and uncritical deference to Parliament. Courts may quite properly sound off about the state of the law, and they may take a view (with formal consequences) on, for example, its consistency with Convention rights. The difficulty is in isolating the issues about rights, which are, on these orthodox terms, proper territory for courts, from the policy issues, which are not. So, questions about the existence and scope of a right to die or to receive assistance in dying are inextricably bound up with a range of policy questions about, for example, the protection of the vulnerable, the role of medical professionals, and healthcare provision.

Thirdly, there is the concern about the slippery slope, the idea being that if necessity is permitted as a defence in context x, it will be difficult to prevent it being available in context y. The fear of the slippery slope is captured vividly by Lord Denning in Southwark London Borough Council v Williams and Another [1971] Ch. 734, at 744:

… if hunger were once allowed to be an excuse for stealing, it would open a way through which all kinds of disorder and lawlessness would pass. So here. If homelessness were once admitted as a defence to trespass, no one's house could be safe. Necessity would open a door which no man could shut. It would not only be those in extreme need who would enter. There would be others who would imagine that they were in need, or would invent a need, so as to gain entry. Each man would say his need was greater than the next man's. The plea would be an excuse for all sorts of wrongdoing. So the courts must, for the sake of law and order, take a firm stand. They must refuse to admit the plea of necessity to the hungry and the homeless: and trust that their distress will be relieved by the charitable and the good.

We must be able to do better than this. The slippery slope seems to me to be the least persuasive reason for rejecting the possibility of a necessity defence. It is based either on our apparent inability to identify relevant differences between behaviours in respect of which we think a defence should be available, and those where we think it should not, and / or on our inability to police the boundary between the two categories of behaviour.

 

Necessity in Nicklinson

Is there 'space' in the law for a defence of necessity?

The Court of Appeal suggests that any defence of necessity would have to be available in principle both to murder (where doctor causes death of consenting person) and to encouraging or assisting suicide (where consenting person causes their own death, encouraged or assisted by doctor). They point to the apparently unequivocal blanket ban on encouraging or assisting suicide in the Suicide Act 1961 (as amended by the Coroners and Justice Act 2009) which leaves no room for a necessity defence. By virtue of its unavailability to encouraging or assisting suicide, necessity cannot be a defence to murder. This assumes that the Act is an exhaustive statement of the law on encouraging or assisting suicide, other than insofar as its express terms call for interpretation. However, I wonder whether this is actually the case. Consider D, a pharmacist, held up at gunpoint by X who states that he wishes to obtain drugs with which to end his own life. D gives the drugs to X, thereby fulfilling the elements of the offence of encouraging or assisting suicide. There is surely at least an argument to be had about whether a defence of duress might be available to D in the unlikely event that she was charged with the offence. Now the possibility of a defence of duress (and let's place it no higher than that, given that duress is not available as a defence to some homicide offences: see Howe [1986] UKHL 4 and Gotts [1992] 2 AC 412) does not of itself make the case for a defence of necessity, but it does at least remind us that even a putatively exhaustive definition of an offence may still leave space, in principle, for general defences.

 

The role of Parliament: proportionality and the slippery slope

Proportionality

The court in Nicklinson views the blanket ban on euthanasia and encouraging or assisting suicide as a proportionate interference with rights under Article 8 ECHR and notes the wide margin of appreciation afforded to States in regulating such conduct (drawing, for example on the decisions of the House of Lords and the European Court of Human Rights in Pretty, and the later decisions of the Strasbourg court in Haas v Switzerland (2011) 53 EHRR 33 and Koch v Germany (2013) 56 EHRR 6).

A blanket ban is, by definition, as far as you can go by way of an interference with rights in this type of context. It follows that if a blanket ban is proportionate, lesser interferences, for example, by way of clearly scoped access to assisted dying, with a necessity defence for the assister, would also be proportionate. It is no surprise that the Court of Appeal declined to suggest that it should go further and say that only a lesser interference would be proportionate and that the blanket ban would be disproportionate. The court cites Lord Bingham in Ullah v Special Adjucator [2004] 2 AC 323, at [20]:

The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less.

The Supreme Court is better placed than the Court of Appeal to consider this proposition afresh in the context of assisted dying. Whether it will or should are further matters: when courts involve themselves in discussions of proportionality, they risk moving into policy territory which is perhaps best left to legislatures. It is understandable that they might wish to tread carefully, especially in an area of moral complexity. That said, proportionality is not and should not be a non-issue. There have been significant proportionality-based incursions into criminal justice policy where blanket or sweeping rules have either been viewed as insufficiently discriminating or insufficiently sensitive to the merits of individual cases: see for example S and Marper v UK [2008] ECHR 1581 on DNA retention; Hirst v UK [2005] ECHR 681 on prisoner voting; and R (F) and Thompson v Secretary of State for the Home Department [2010] UKSC 17 on sex offender registration requirements. For sure, these decisions are not uncontroversial, but they show that the proportionality question is a real one. Whether they could or would be harnessed in support of a less sweeping prohibition on assisted dying is probably questionable: they do not involve questions about the scope of the substantive criminal law; and they (arguably) do not involve the type of morally contentious issues in play in relation to assisted dying. As things stand, while I could envisage the Supreme Court rehearsing the substance of some of the proportionality arguments more fully than has been the case in the lower courts (and I would quite like to see what is made of them), I do not see a necessity-based defence emerging from that consideration. This is notwithstanding that there is little prospect of any significant change from Parliament itself.

 

The slippery slope

In relation to the slippery slope, there is no particular reason why a legal rule designed by a court should necessarily be less certain and robust than one enacted by Parliament (in fact, the (proper) role of courts in interpreting statutory rules suggests that the opposite may be true). Accordingly, fear of the slippery slope is not, without more, a reason for deference to Parliament. The question is whether there is really a slippery slope from the situations of Tony Nicklinson and Paul Lamb to the non-consensual euthanasia of vulnerable people. I wonder whether it is something of a failure of imagination to think that a sufficiently robust rule could not be crafted. This does not necessarily mean that such a rule should be created, merely that we should be cautious about justifying the absence of a rule by claiming that it cannot.

That said, attention does need to be paid to the slippery slope, and it is not avoided simply by stating that a decision is confined to its facts. The court refers to the conjoined twins separation case Re A (Children) [2001] Fam 147 (in which the court declared that a separation operation intended to save the life of the stronger twin would be lawful, notwithstanding that it would hasten the death of the weaker twin). It was argued for Nicklinson and Lamb that because that case involved the intentional and active taking of life, it counted in favour of a necessity-based defence to euthanasia. The Court of Appeal in Re A, in a set of very thorough judgments, was keen to stress the unique nature of the case, but that of itself does not indicate that there are no principles derivable from it which might properly be applied elsewhere. In Nicklinson, the court marginalises the potential impact of Re A by suggesting (at [63]):

In any event, there is a world of difference between taking a life to save one and taking a life because the deceased wishes it to end.

This may well be true. But some would in fact view the latter as more palatable, given that the former involves intentionally causing the non-consensual death of a third party against their best interests. The court in Nicklinson may well be right that Re A is “too slender a thread on which to hang such a far-reaching development of the common law” (at [63] again) but the reasoning may need fuller articulation.

Whether or not Re A speaks impliedly to a more permissive approach to euthanasia and assisted suicide, and specifically to a defence grounded in necessity, the question remains as to how to draw a line around permissible conduct and to distinguish it from that which is impermissible. Nicklinson and Lamb attempted to do this. The declaration sought from the Divisional Court was to the effect that necessity should be a defence to euthanasia and to a charge of assisted suicide provided (see [2013] EWCA Civ 961, at [38]):

(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; that there are no alternative means available by which his suffering may be relieved; and that 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.

 

There has also been an attempt to do so in the declaratory relief ordered in Carter v Canada (Attorney General), 2012 BCSC 886, which states that preventing access to assisted suicide would infringe relevant Charter rights if the following conditions were satisfied (see Carter at [1393]):

[assistance is provided] by a medical practitioner in the context of a physician-patient relationship, where the assistance is provided to a fully-informed, non-ambivalent competent adult patient who: (a) is free from coercion and undue influence, is not clinically depressed and who personally (not through a substituted decision-maker) requests physician-assisted death; and (b) is materially physically disabled or is soon to become so, has been diagnosed by a medical practitioner as having a serious illness, disease or disability (including disability arising from traumatic injury), is in a state of advanced weakening capacities with no chance of improvement, has an illness that is without remedy as determined by reference to treatment options acceptable to the person, and has an illness causing enduring physical or psychological suffering that is intolerable to that person and cannot be alleviated by any medical treatment acceptable to that person.

Now, neither of these formulations is watertight. The more detail you write into a declaration, the more express terms there are to argue about. One also needs to be cautious about reading across propositions from one jurisdiction to another, given the different constitutional arrangements. (Moreover, the decision in Carter could in due course be appealed as far as the Supreme Court of Canada, which has previously found the blanket prohibition on assisting suicide to be constitutional.) The point here is merely that we may well – if we thought it the right thing to do – be able to craft a set of terms which confine a necessity-based defence to where it is most merited.

None of this persuades me that any of this will actually happen in Nicklinson. The combination of the wide margin of appreciation and the convention of judicial deference on matters of moral controversy stand in the way. Coupled with the reticence of Parliament on the issue, this suggests fairly bleak prospects for advocates of the development of some kind of above board access to assisted dying (rather than the more 'covert' assistance which might be provided through drug treatment for pain relief which it is known will hasten death, and which can be legitimised using the doctrine of double effect). If competent adults in the situations of Nicklinson and Lamb can't succeed, who can?

 

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