AM, R (on the application of) v The General Medical Council

A person has a constitutional right of access to the courts to establish legal rights, including the right to engage a lawyer and obtain necessary evidence and advice. Criminal legislation must be construed consistently with that right. Acts undertaken solely to prepare and present a court application are too remote from any later suicide to constitute, of themselves, assistance or encouragement within section 2(1) of the Suicide Act 1961. An interim declaration may be granted where necessary to secure the proper presentation of exceptional litigation, although its terms should be confined to what is required for that purpose.

The claimant, known as Martin, was severely disabled following a stroke and wished to end his life. His wife did not wish to assist him, and his solicitors sought information and expert advice concerning possible lawful means of achieving his wish.

Judicial review proceedings challenged the Director of Public Prosecutions’ policy on assisted suicide. Before permission had been granted, the solicitors sought an interim declaration that they, doctors and other third parties could obtain, provide and communicate information for the purpose of preparing the application without committing an offence or incurring disciplinary sanctions. The Solicitors Regulation Authority and the General Medical Council were joined as defendants.

1. Declaration granted. The precise wording was to be settled by agreement or, failing agreement, by further written submissions.
2. A person’s right of access to the courts to establish legal rights is a fundamental constitutional principle. It includes the right to retain a lawyer willing to present the case and all material properly required for the court’s determination. The principle underpins legal professional privilege and requires criminal legislation to be interpreted compatibly with it.
3. Section 2(1) of the Suicide Act 1961 could not properly be construed so that solicitors or doctors became criminally liable merely by researching, obtaining, preparing or communicating information for the purpose of placing it before the court. Such conduct was sufficiently remote from any possible later act of suicide and could not, of itself, be treated as assistance or encouragement.
4. Declarations are discretionary and should be made only when necessary. This was an exceptional case. The uncertainty in the parties’ correspondence, and the understandable concern of doctors asked to provide reports, made a declaration positively conducive to the interests of justice and the proper disposal of the proceedings.
5. The declaration could cover obtaining information from third parties and appropriate experts, preparing reports and communicating with Dignitas for general information. It need not authorise Martin to join Dignitas at that stage, because that step and the consequential assessment process were unnecessary. Steps to identify possible helpers could be included because the Article 8 issue made it likely that the court would need to understand what assistance was proposed and who might provide it.