The Court heard that 'Martin', a man with locked-in syndrome who is profoundly disabled and wishes to end his own life, wanted to obtain an up-to-date medical report covering his medical history, diagnosis, prognosis and actual and suggested treatment. Such a report would be necessary for Martin to access the services of Dignitas, which offers accompanied suicide. In addition, Martin would also like medical advice about methods of committing suicide at home, the practicalities involved and the respective merits and drawbacks of the various methods.
Martin accepted that any doctor providing such a medical report or advice may be found guilty of committing the crime of assisting a suicide, which is set out in section 2(1) of the Suicide Act 1961. Although the Director of Public Prosecutions (DPP) has recently clarified the prosecution policy regarding assisted suicide so that doctors will in certain circumstances be allowed to give such advice with a high degree of confidence they will not be prosecuted, doctors remain at a real risk of facing disciplinary action brought by the GMC. The GMC's guidance on assisted suicide has the effect that if a doctor were to give assistance of the kind Martin sought, he would be in breach of the guidance and at risk of facing Fitness to Practise proceedings.
The GMC's guidance on assisted suicide is in fact set out in two documents: 'Guidance for the Investigation Committee and case examiners when considering allegations about a doctor's involvement in encouraging or assisting suicide' and 'When a patient seeks advice or information about assistance to die'. Martin argued that the GMC's guidance constitutes a breach of articles 8 (right to family and personal life) of the European Convention on Human Rights in that he has a right to choose the time and manner of his own death, and the GMC guidance interferes with those rights.
Elias LJ accepted that article 8 was engaged and the question for the Court was whether the GMC had adopted unduly restrictive guidance which disproportionately interfered with Martin's article 8 right to end his own life at a time of his choosing, and if so whether such a restriction was justified under article 8(2). Elias LJ stated that "it cannot possibly be contrary to article 8 for the GMC to take as its starting point the principle that a doctor has a duty to obey the law, and to structure its guidance accordingly. The reason why the section 2 interference with article 8 is justified, which the Supreme Court held was the protection of vulnerable patient, equally justifies the GMC’s guidance which seeks to reflect and give effect to that principle.
Martin also argued that the decision to issue and maintain the guidance was so unreasonable or irrational, that no reasonable decision maker could reach it, arguing that it was irrational for the GMC not to amend its policy so as to bring it in line with the modified approach adopted by the DPP. In a nutshell, Martin advanced that the DPP is responsible for enforcing the law relating to assisted suicide; if she considers that the public interest is properly protected by giving a strong indication to doctors who act out of compassion on a one-off situation that they will not be prosecuted, it is Wednesbury irrational for the GMC to take a different view as to what public policy requires.
Elias LJ also rejected this argument, stating that the GMC, as a specialist regulatory body, was better placed than the Court to assess what was in the public interest with regard to medical professional discipline, and there was no constitutional reason why the GMC guidance must accord with DPP guidance, given the very different roles of the two bodies.
Comment: Although there is ostensibly no change in doctors' professional duties to patients in the eyes of the GMC, we note that the Assisted Dying (No. 2) Bill 2015-16 is due to have its second reading in the House of Commons on 11 September 2015. It will be interesting to watch its progress and whether or not there will ultimately be a change in the law on assisted suicide. If changes were to be made to section 2(1) of the Suicide Act 1961, it seems likely that the GMC might need to revisit its guidance on assisted suicide.