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Legal case to consider assisted death for people unable to end their lives without direct assistance launched today

· Mr Tony Nicklinson is paralysed from the neck down following a stroke, he has no chance of recovery

· Mr Nicklinson would like to end his life but needs direct help to do so

· His case highlights problems with the law of murder in cases of consensual ‘mercy killing’

· Mr Nicklinson would not qualify for assisted dying under proposed legislation supported by Dignity in Dying, but decision-makers must stop burying their heads in the sand as if this is a theoretical problem

As a result of a stroke that left him totally paralysed below the neck, Mr Nicklinson is unable to end his life without direct assistance, unless he starves and dehydrates himself to death. His legal team today launch a legal challenge to seek clarity in the law on cases where a person who is physically unable to end their own life, and who wants to die, asks another person to end their life through direct action.

Sarah Wootton, Chief Executive of Dignity in Dying said:

“Mr Nicklinson’s situation is rare and tragic. His request to die presents society with difficult questions, for which there are no easy answers. One thing is clear: the current law fails Tony Nicklinson and his family.

“The law of murder is primarily used to convict people who act out of malicious motivation and as such carries a mandatory life sentence. It should not be used to prosecute someone who compassionately helps a person who is suffering to die at their request. The Law Commission established this as an area of concern in its 2006 review of murder law, calling for a further review into whether there should be a specific offence or defence of ‘mercy killing’. In the absence of any review, we hope that this legal case will help to clarify the law as it applies to Mr Nicklinson and others, and put further pressure on the Government to address the problems with our existing and outdated murder law.

“Dignity in Dying campaigns for a change in the law so that terminally ill, mentally competent adults can have the option of assistance to die within strict legal safeguards. This change in the law would not give Tony Nicklinson the choice of an assisted death as he is not terminally ill, but severely disabled. This case raises many ethically difficult questions. It would be impossible not to feel sympathy for Mr Nicklinson and his family, yet we also understand that his right to control over his death must be balanced with concerns about the impact of legalising assisted suicide on potentially vulnerable groups. When working for social reform there will always be a need to balance individual rights with the impact on society.

“We will watch the progression of the case with interest to see how these issues are resolved. Decision-makers cannot bury their heads in the sand as if this if a theoretical problem. People are taking control at the end of their lives, often in desperate and dangerous ways. There is a difference between assisted dying for terminally ill people; assisted suicide for non-terminally ill people, ‘mercy killing’ and euthanasia, but the current law fails to reflect this.”

The first stage of his case is to go to court to seek permission for a Judicial Review.

Dignity in Dying will continue to demand that mentally competent, terminally ill adults have a safeguarded choice of assisted dying in the UK. We will also persist in calling for the legal injustice around the law of murder to be addressed, specifically for a separate offence or defence of mercy killing.



Notes to editor:

Background information on the current situation:

If Mr Nicklinson asks a loved one for help to die, and they help him, they would be directly ending his life, and would be prosecuted for murder rather than assisted suicide. This means that if Mr Nicklinson’s wife, for example, was to help her husband to die at his request, she would face a mandatory life sentence, despite the circumstances and despite her compassionate motivation

Following the Purdy case, the Director of Public Prosecutions (DPP) issued prosecuting guidelines for people assisting someone to die at their request – this guidance relates to the 1961 Suicide Act. Mr Nicklinson’s legal team will argue that murder law has no flexibility to consider motivation and circumstance, and this, combined with the absence of a prosecuting policy for murder in cases of consensual ‘mercy killing’ or voluntary euthanasia, interferes with Mr Nicklinson’s human rights. Without some forseeability around the likelihood of a loved one being prosecuted for directly helping him end his life, his only options are to continue with a life he finds unbearable, or to attempt to end his life by refusing food and fluids.

About Dignity in Dying:

· Dignity in Dying campaigns for greater choice, control and access to services at the end of life. It advocates providing terminally ill adults with the option of an assisted death, within strict legal safeguards, and for universal access to high quality end-of-life care.

· Dignity in Dying has over 25,000 supporters and receives its funding entirely from donations from the public.

· The British Social Attitudes Survey 2010 found that 92% of non-religious and 71% of religious people support assisted dying. This relates to overall support of 82%.

Mr Nicklinson:

Tony Nicklinson is 56 years old. In 2005, he had a stroke as a result of an undiagnosed heart condition. The stroke left Mr Nicklinson with locked in syndrome: he cannot move anything except his head and eyes, and is unable to speak. He communicates with the use of a Perspex board with letters on it. Tony Nicklinson can look, blink or nod to tell his wife, Jane, which letter he wants, and spells out words and sentences in this way.

Tony Nicklinson wants to die and has two options available to him:

1) Starving himself to death, which could take weeks and would be distressing for him and his family.

2) Ask someone to directly help him die (he is only able to move his head and would be unable to end his own life). It is quite clear that if someone directly helped him they would be liable for prosecution for murder (not assisted suicide) and life imprisonment.

Mr. Nicklinson does not want to expose his wife to a prosecution for murder.

Basic overview of legal arguments used in the case:

The legal team will argue that Mr. Nicklinson’s right to respect for his private life under Article 8 of the European convention on Human Rights (ECHR) is interfered with by the law of murder, and that this interference is not justified. They will say that Mr Nicklinson needs clarity on the how the law of murder applies in cases of genuine ‘mercy killing’, in order to make decisions about his death, and to understand the implications of these decisions for his wife.

At its crux, the case will attempt to clarify murder law, to recognise the differences between genuine ‘mercy killing’ and murder, and how these should be treated by the law and in the courts.

DPP policy context:

In July 2009 the Law Lords decided in Debbie Purdy’s favour in her bid to clarify the law on assisted suicide. The House of Lords ruling instructed the DPP to provide a policy outlining factors for and against prosecution when assisting a person to commit suicide, at their request.

The 1961 Suicide Act specifically gives the DPP the power of discretion over whether to bring a prosecution. If there is sufficient evidence, the DPP has to determine whether a prosecution is in the public interest. The DPP issued interim guidelines in September 2009 at the same time as launching a public consultation, and issued a final version of the prosecuting policy in February 2010.

Law Commission recommendation context:

The Law Commission’s report Murder, Manslaughter and Infanticide (2006) called on the Government to “undertake a public consultation on whether and, if so, to what extent the law should recognise either an offence of ‘mercy’ killing or a partial defence of ‘mercy killing’.? To date no such review has been commissioned.

News reports on 13th July 2010 suggest that the some of the Law Commission’s recommendations in the same report (around first and second degree murder) are now being considered by the coalition Government.

Murder sentencing guidelines at present:

An offender aged over 21 who is convicted of murder must be sentenced to imprisonment for life – s.1(1) Murder (Abolition of the Death Penalty) Act 1965.

The current sentencing framework is contained in the Criminal Justice Act 2003, and requires the sentencing judge to fix a minimum term that has to be served before the Parole Board may consider whether it is safe to release on licence. If an offender is released, recall to prison is possible at any time during the rest of the offender’s life.

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