The House of Lords in Purdy forced the DPP to issue offence-specific guidance on assisted suicide, but Jacqueline A Laing argues that the resulting interim policy adopted last September is unconstitutional, discriminatory and illegal. In July 2009, the law lords in R (on the application of Purdy) v Director of Public Prosecutions [2009] All ER (D) 335 required that the DPP publish guidelines for those contemplating assisting another to commit suicide. The DPP produced a consultation paper (23 September 2009) seeking to achieve a public consensus, albeit outside Parliament, on the factors to be taken into account in determining when not to prosecute assisted suicide. Although the consultation exercise is hailed by proponents of legislative change as a democratic, consensus-building and autonomy-enhancing initiative, there is much to suggest that, on the contrary, the guidance is unconstitutional, arbitrary and at odds with human rights law, properly understood.
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.
The claim that the legislation infringes Ms. Taylor’s equality rights begins with the fact that the law does not prohibit suicide. However, persons who are physically disabled such that they cannot commit suicide without help are denied that option, because s. 241(b) prohibits assisted suicide. The provisions regarding assisted suicide have a more burdensome effect on persons with physical disabilities than on able-bodied persons, and thereby create, in effect, a distinction based on physical disability. The impact of the distinction is felt particularly acutely by persons such as Ms. Taylor, who are grievously and irremediably ill, physically disabled or soon to become so, mentally competent, and who wish to have some control over their circumstances at the end of their lives. The distinction is discriminatory, under the test explained by the Supreme Court of Canada in Withler, because it perpetuates disadvantage.
European Court judges in Strasbourg have ruled against Germany in an assisted suicide case, saying a widower's rights were infringed. Ulrich Koch challenged the German ban on actively helping someone commit suicide. His paralysed wife died after taking poison in Switzerland in 2005. The judges did not rule on the ban, but said the German courts should have examined Mr Koch's complaint. On assisted suicide, the judges said it was up to individual nations to decide. The European Court of Human Rights (ECHR) ordered Germany to pay Mr Koch 2,500 euros (£1,600; $2,460) in damages and 26,736 euros for legal costs. There was a violation of Article Eight of the European Convention on Human Rights (right to respect for private and family life) because of the German courts' refusal to examine the merits of Mr Koch's complaint, the ruling said.
[2013] IEHC 2 In the 75 years since the Constitution was enacted both this Court and the Supreme Court have been required to examine a vast proliferation of issues in a huge corpus of case-law. Over that period few cases have emerged which are more tragic or which present more difficult or profound questions than the issues presented for adjudication here. At the heart of this application lie novel and difficult questions as to whether constitutional provisions which guarantee personal liberty and autonomy in Article 40 of the Constitution are interfered with by a statutory prohibition which prohibits even a citizen in deep personal distress and afflicted by a terminal and degenerative illness to avail of an assisted suicide and, if they do, whether such an absolute statutory prohibition passes a proportionality test.