England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		3rd December 2004

Mr Justice Hedley :

1. The critical issue in this case is the extent of the duty owed by a local authority when the welfare of a vulnerable person in their area is threatened by the criminal (or other wrongful) act of another. The facts of this case highlight this issue as vividly as any that could be imagined.
2. Mr and Mrs Z reside in the area of the local authority. In 1998 Mrs Z was diagnosed as having cerebella ataxia, a condition which attacks that part of the brain that controls the body's motor functions. She has become increasingly disabled by this condition which is incurable and irreversible. She would in due course die as a result of it.
3. Although Mrs Z has continued to live at home, she has required extensive support from the local authority and these needs have grown as her condition has deteriorated. In late 2003 (around the time of her 65^th birthday) Mrs Z developed signs of Parkinsonism and it was thought that this pointed to a diagnosis of multi-system atrophy. Quite apart from serious restrictions of motor control, Mrs Z also has speech and hearing difficulties.
4. In April 2000 Mrs Z was admitted to hospital having taken an overdose of paracetemol tablets; she had left a suicide note. There is no doubt that this was precipitated by her deteriorating physical condition. However it was not until late 2003 that she began to express strong views about seeking assisted suicide. She knew that that could be arranged in Switzerland. Initially her husband and adult children were all strongly opposed to the idea. However, she persisted in that view and the family, although deeply unhappy at the prospect, gradually came to the view that her wishes should be supported. This was of practical as well as emotional significance since such an assisted suicide could not be effected without another making all the arrangements to get her to the clinic in Switzerland.
5. Although the evidence discloses that Mr Z could at times appear to be a difficult man, it has to be said that throughout this affair he has acted entirely honourably. He has kept the local authority informed and, most particularly informed them in early November that he had entirely changed his mind and now proposed to make all the necessary arrangements and accompany his wife to Switzerland for the assisted suicide.
6. The local authority convened a planning meeting (at which a specialist police officer attended) having concluded that Mrs Z was a vulnerable person living in their area. The impression of the social worker was that Mrs Z was legally competent to make the decision that she had made. However, it appeared that that decision could only be carried out if Mr Z provided all necessary assistance and, should he do so, it would appear that he would be committing a criminal offence.
7. The local authority therefore sought to invoke the inherent jurisdiction of the High Court. On 29^th November2004 Black J. sitting in Manchester granted an injunction restraining Mr Z from removing Mrs Z from England and Wales. The matter was listed for hearing before me, the Official Solicitor was invited to act on behalf of Mrs Z and arrangements were made for Professor Tom Sensky, a distinguished consultant psychiatrist, to examine Mrs Z and make an assessment of her legal capacity to elect for suicide.
8. The court is greatly indebted to Professor Sensky for having a full report available to the court at the adjourned hearing on the 29^th November which he also attended. His report, which was accepted on all sides, clearly established two matters. First, that Mrs Z had all the requisite attributes necessary to establish legal capacity to make her own decisions; it should be added that she had also made an 'advance directive' to the like effect. Secondly, that the decision was hers alone entirely uninfluenced by outside considerations; indeed she had long persisted in the view contrary to the expressed wishes of her family. Once it was apparent that Mrs Z had legal competence, the Official Solicitor could no longer act on her behalf. The court is therefore very grateful that he was willing to accept appointment as an Advocate to the Court and his submissions as advanced through counsel have been of the greatest assistance.
9. When the matter came before me, it was urged that I should deal with it at once and not further adjourn it. Indeed I was told that all the necessary arrangements had been made for Mrs Z to travel to Switzerland on Wednesday 1^st December 2004. I made it clear that in my view the matter should be heard in public and (subject to the necessary reporting restrictions in terms of identifying Mr and Mrs Z) no one opposed that. Accordingly the hearing took place in open court on Tuesday 30^th November.
10. I start then with the position of the local authority. I am satisfied that they owed to Mrs Z duties under both Section 29 of the National Assistance Act 1948, The National Health Service Act 1977 and the National Health & Community Care Act 1990. Moreover the Department of Health had issued a Circular "No Secrets: Guidance on developing and implementing multi-agency policies and procedures to protect vulnerable adults from abuse" under Section 7 of the Local Authority Social Services Act 1970 (thus making the guidance obligatory). It follows from that that the local authority were obliged to treat Mrs Z as a vulnerable adult. However, care must be exercised in the use of the term 'vulnerable'. In some context or other every human being is vulnerable. The term only has meaningful content in a specific context. In this case that context is physical and mental deficit. What has caused difficulty here is not the fact of a duty but the extent of it. It was common ground that the common law duties owed by the local authority to Mrs Z did not extend the scope of the statutory duties. At the very least the local authority could not ignore the position once Mr Z had informed them of it.
11. It would be of little assistance in this case, nor indeed would the scope of the argument warrant it, to try to produce an exhaustive analysis of the actual duties owed in this case. It is however, to be observed that none of the duties are all-embracing in, for example, the ways provided in Section 33 and part III of the Children Act 1989. They are all limited in scope to addressing the particular needs of a person as assessed by the authority. I propose simply to focus on the actual obligations that in my judgment were placed on the local authority in these circumstances.
12. I then turn to the position of Mrs Z. The finding of competence in this case is fundamental to the court's approach in respect of her. I start with the broad legal perspective within which her position is to be seen. It is powerfully stated in the judgment of Hoffman LJ (as he then was) in the case of Airedale NHS Trust –v- Bland [1993] AC 789 where at page 826, he says this:

"I start with the concept of the sanctity of life … [W]e have a strong feeling that there is an intrinsic value in human life, irrespective of whether it is valuable to the person concerned or indeed to anyone else. Those who adhere to religious faiths which believe in the sanctity of all God's creation and in particular that human life was created in the image of God himself will have no difficulty with the concept of the intrinsic value of human life. But even those without any religious belief think in the same way. In a case like this we should not try to analyse the rationality of such feelings. What matters is that, in one form or another, they form part of almost everyone's intuitive values. No law which ignores them can possibly hope to be acceptable.

Our belief in the sanctity of life explains why we think it is almost always wrong to cause the death of another human being, even one who is terminally ill or so disabled that we think that if we were in his position we would rather be dead. Still less do we tolerate laws such as existed in Nazi Germany, by which handicapped people or inferior races could be put to death because someone else thought that their lives were useless.

But the sanctity of life is only one of a cluster of ethical principles which we apply to decisions about how we should live. Another is respect for the individual human being and in particular for his right to choose how he should live his own life. We call this individual autonomy or the right of self-determination. And another principle, closely connected, is respect for the dignity of the individual human being: our belief that quite irrespective of what the person concerned may think about it, it is wrong for someone to be humiliated or treated without respect for his value as a person. The fact that the dignity of an individual is an intrinsic value is shown by the fact that we feel embarrassed and think it wrong when someone behaves in a way which we think demeaning to himself, which does not show sufficient respect for himself as a person"

Lord Hoffman then goes on to point out, however:

"…..what is not always realised, and what is critical in this case, is that they are not always compatible with each other."

Section 1 of the Suicide Act 1961 abrogated the rule that made suicide criminal. It did not make suicide lawful, much less did it encourage it; it simply removed suicide from being punishable as a criminal act. It follows inevitably that our law does not penalise the decision of a competent person to take their own life. Moreover nor does the law prohibit them from so doing. Human freedom, if it is to have real meaning, must involve the right to take what others may see as unwise or even bad decisions in respect of themselves; were that not so, freedom would be largely illusory. It follows that the court has no basis in law for exercising the jurisdiction so as to prohibit Mrs Z from taking her own life. The right and responsibility for such a decision belongs to Mrs Z alone.

13. If, of course, the court had come to a different conclusion on capacity, then the result might have been very different. There is a legal presumption in favour of capacity but that could have been rebutted by evidence of inability to assimilate the issues, or fully appreciate the consequences, or being unduly influenced by the views of others or by undue concern for the burden that her condition imposed on others. There is no such evidence in this case; indeed, as I have already indicated, the evidence is all the other way. Had, however, Mrs Z lacked capacity, the court could have decided what should happen in accordance with her best interests. In the circumstances here, Mrs Z's best interests are no business of mine. I am in much the same position here as the President found herself in the case of B –v- An NHS Hospital Trust [2002] 1FLR 1090 where a patient who was legally competent refused treatment even though death was the inevitable consequence of that refusal. The court is simply not entitled to interfere whatever views it may have about the decision in question.
14. The position in relation of Mr Z, however, is much less clear. Section 2 of the Suicide Act 1961 provides:

"(1) a person who aids, abets, counsels or procures the suicide of another, or an attempt by another to commit suicide, shall be liable on conviction on indictment to imprisonment for a term not exceeding fourteen years….

(4) …..no proceedings shall be instituted for an offence under this section except by or with the consent of the Director of Public Prosecutions."

Although it is the case that all that Mr and Mrs Z propose to do is not criminal under the law of Switzerland, it seems to me inevitable that by making arrangements and escorting Mrs Z on the flight, Mr Z will have contravened Section 2(1) above. It follows that in order for Mrs Z actually to be able to carry out her decision, it will require the criminal conduct of another. That said I remind myself of sub-section (4). Although not unique, the provision is rare and is usually found where Parliament recognises that although an act may be criminal, it is not always in the public interest to prosecute in respect of it.

15. Two questions thus arise: first, whether the local authority are under a duty to apply for the continuation of the injunction granted by Black J. now that the competence of Mrs Z has been established; and secondly, whether the court should grant any such injunction in any event. In order to determine these issues in this case, it is useful to consider briefly the law generally in the use of injunctions to restrain criminal behaviour.
16. It is clear that a jurisdiction to restrain criminal acts is available to the High Court – see Gouriet –v- Union of Post Office Workers [1978] AC 435. There it was suggested that the power should be used sparingly and should be reserved for those cases where there were continued breaches of the law or serious injury was threatened. An example of the former is where the power was used in relation to Sunday trading where the profitability of non-compliance greatly exceeded the financial penalties to which traders were liable – see Stoke-on-Trent Council –v- B & Q [1984] AC 754.
17. Whilst in such cases injunctive relief is usually sought at the suit of the Attorney-General (who although served has elected not to intervene in this case), it is clear that the local authority may also apply pursuant to powers conferred by Section 222 of the Local Government Act 1972. In City of London Corporation –v- Bovis Construction Ltd [1992] 3 All ER 697 it is suggested that the jurisdiction should be invoked and exercised exceptionally and with great caution, that there must be something more than mere infringement of the criminal law and that there must be a necessary inference that the unlawful activity will continue unless and until restrained and that nothing less than an injunction will be necessary to do that. It will be readily observed that this is an area of enforcement in which the judge should tread warily.
18. So I return to the question of whether the local authority have any duty to seek the continuance of this injunction. It is the case, as appears above, that they owe duties to Mrs Z as a vulnerable person. In Pretty –v- DPP [2002] 1 AC 800 the House of Lords recognised that whilst the State has a special responsibility to those in its custody or (by parity of reasoning) those who lack competence, the position in relation to a competent person, albeit vulnerable, is different and the positive obligation to protect life "…. is weaker than in such cases". Clearly Article 2, the right to life, is engaged but so are Articles 3 and 8. Counsel for Mr Z contended that Articles 2, 3 and 8 should not be seen as competing but interlocking rights. That is no doubt a good description but, however one describes it, the question as to the relationship between them on the facts of any particular case remains for the court to resolve. I again acknowledge with gratitude the survey of this area of the law provided by Munby J. in R –v- GMC and others [2004] EWHC 1879 (Admin) and in this context, particularly at paragraphs 51-79 and 117-162. It seems to me that in the context of a person of full capacity, whilst the right to life is engaged, it does not assume primacy (at the hands of another especially) over rights of autonomy and self-determination. The position is lucidly stated by Hoffman LJ in the judgment already referred to where he goes on to say this:

"No one, I think, would quarrel with these deeply rooted ethical principles. But what is not always realised, and what is critical in this case, is that they are not always compatible with each other. Take, for example, the sanctity of life and the right of self-determination. We all believe in them and yet we cannot always have them both. The patient who refuses medical treatment which is necessary to save his life is exercising his right to self-determination. But allowing him, in effect, to choose to die, is something which many people will believe offends the principle of the sanctity of life. Suicide is no longer a crime, but its decriminalisation was a recognition that the principle of self-determination should in that case prevail over the sanctity of life.

A conflict between the principles of the sanctity of life and the individual's right of self-determination may therefore require a painful compromise to be made. In the case of the person who refuses an operation without which he will certainly die, one or other principle must be sacrificed. We may adopt a paternalist view, deny that his autonomy can be allowed to prevail in so extreme a case, and uphold the sanctity of life. Sometimes this looks an attractive solution, but it can have disturbing implications. Do we insist upon patients accepting life-saving treatment which is contrary to their strongly held religious beliefs? Should one force-feed prisoners on hunger strike? English law is, as one would expect, paternalist towards minors. But it upholds the autonomy of adults. A person of full age may refuse treatment for any reason or no reason at all, even if it appears certain that the result will be his death."

That is the law that I have to apply in this case and that is the perspective that the local authority is required to adopt.

19. In my judgment in a case such as this the local authority incurred the following duties:

i) To investigate the position of a vulnerable adult to consider what was her true position and intention;

ii) To consider whether she was legally competent to make and carry out her decision and intention;

iii) To consider whether any other (and if so, what) influence may be operating on her position and intention and to ensure that she has all relevant information and knows all available options;

iv) To consider whether she was legally competent to make and carry out her decision and intention;

v) To consider whether to invoke the inherent jurisdiction of the High Court so that the question of competence could be judicially investigated and determined;

vi) In the event of the adult not being competent, to provide all such assistance as may be reasonably required both to determine and give effect to her best interests;

vii) In the event of the adult being competent to allow her in any lawful way to give effect to her decision although that should not preclude the giving of advice or assistance in accordance with what are perceived to be her best interests;

viii) Where there are reasonable grounds to suspect that the commission of a criminal offence may be involved, to draw that to the attention of the police;

ix) In very exceptional circumstances, to invoke the jurisdiction of the court under Section 222 of the 1972 Act

My view is that their duties do not extend beyond that. In this case, although they have the power to do so under Section 222 of the 1972 Act, in my judgment they have no obligation to seek the continuation of the injunction made by Black J. It is clear that the criminal justice agencies have all the necessary powers. Moreover Parliament has committed to the DPP the discretion as to whether to permit a prosecution. Both those points militate strongly against the intervention of the civil remedy of an injunction. The local authority have made it clear that if they are under no duty to seek the continuation of the injunction, they do not wish to do so.

20. Should the court nevertheless of its own motion continue this injunction? In my judgment it should not in circumstances where no-one with the necessary standing seeks any such order, where the criminal justice agencies have the requisite knowledge and power and where the effect of the injunction is to deny a right to a seriously disabled but competent person that cannot be exercised herself by reason only of her physical disability. Moreover, all that has to be set in the context of the caution urged by the decided cases referred to above in the use of the injunctive jurisdiction. It was for all these reasons that at the conclusion of the hearing on 30^th November I discharged the injunction made herein on 24^th November.
21. This case affords no basis for trying to ascertain the court's views about the rights or wrongs of suicide, assisted or otherwise. This case simply illustrates that a competent person is entitled to take their own decisions on these matters and that that person alone bears responsibility for any decision so taken. That is the essence of what some will regard as God-given freewill and what others will describe as the innate right of self-autonomy. It illustrates too that the civil court, and in this context, especially the family court, will be slow to restrain behaviour consistent with the rights of others simply because it is unlawful where adequate powers are vested in the criminal justice agencies. If this case decides anything positive, it is the duties which the court holds to lie on a local authority when it learns that the welfare of a vulnerable person in their area is seriously threatened by a decision taken by that person.