AM, R (on the application of) v The General Medical Council [2015] EWHC 2096 (Admin)

Case No CO/5076/2013[2015] EWHC 2096 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 20/07/2015
Before
LORD JUSTICE ELIASMR JUSTICE COLLINS
Between
The General Medical CouncilDefendant/ Respondent
Philip Havers QC & Adam Sandell (instructed by Leigh Day) for Claimant/ApplicantJenni Richards QC (instructed by General Medical Council) for Defendant/RespondentHearing Hearing date: 25 June 2015
Judgment
[1]Martin (whose name has been anonymised in these proceedings) is fifty years old. He suffers from what is known as ‘locked in’ syndrome. Following a stroke seven years ago he has been unable to speak and virtually unable to move. He lives in a nursing home and is dependent upon others for every aspect of his life, including feeding, washing, dressing, communication, defecation and urination. He can move his eyes, and can communicate, painfully slowly, by spelling out words on the screen of a special computer which is able to detect where on the screen he is looking.[2]He finds his circumstances intolerable: in his view his life is undignified, and distressing. He has formed a longstanding, considered and settled wish to end his life. He has capacity to reach that decision. It is of overwhelming importance to him that he is able to terminate his life when he wishes, even if he would not choose to do so immediately.[3]Martin previously tried to end his life by ceasing to eat or drink but the attempt failed in distressing circumstances. He does not feel able to try that method of suicide again. The option he is now inclined to adopt is to use the services of Dignitas in Zurich. This organisation offers accompanied suicide to people who wish to end their own lives and are suffering from unendurable pain or terminal illness. It provides a fast acting and painless medication. Dignitas requires its prospective clients to provide, amongst other things, an up-to-date medical report covering the medical history, diagnosis, prognosis, and actual and suggested treatment. He would like to be able to obtain this from a doctor if necessary.[4]Martin would also like to have medical advice about methods of committing suicide at home. There is literature which provides information about this, but Martin would like information about how practical it is to pursue the suggested methods and advice as to their respective merits and drawbacks. Again he would like to be able to obtain this information from a reputable doctor.[5]Martin accepts that in all probability the doctor providing the medical report or giving the relevant advice will be committing the crime of assisting a suicide. However, he says that in practice, as a result of the recent clarification of the prosecution policy adopted by the Director of Public Prosecutions (“DPP”), doctors will in certain circumstances be allowed to give this advice with a high degree of confidence that they will not be prosecuted. However, this compassionate prosecution policy has in practice changed little because even if doctors are unlikely to be subject to criminal sanctions for their actions, they are at real risk of facing disciplinary action being taken against them by their professional body, the General Medical Council (“GMC”) and that could lead to their removal from the medical register. The GMC has issued guidance whose effect is that if a doctor were to give assistance of the kind Martin seeks, he would be in breach of the guidance and at risk of having disciplinary proceedings taken against him. Doctors will quite understandably be unwilling to take that risk, submits Martin, with the result that he and others similarly placed, will not receive the much needed assistance they seek.[6]Martin contends that this guidance constitutes a breach of articles 8 and 10 of the European Convention on Human Rights. He has a right to choose the time and manner of death, and the effect of the guidance is disproportionately to interfere with those rights. In the course of the hearing he also submitted that as a matter of domestic law the guidance was Wednesbury unreasonable.[7]These proceedings were initially started while similar proceedings were taken against the DPP. In those proceedings it was submitted that the DPP had adopted a prosecution policy which infringed article 8, and in any event had not provided the clarification required by Convention law so as to enable doctors who might be willing to assist Martin to have any sensible appreciation of whether they were likely to face prosecution or not. This case was linked with an action brought by Tony Nicklinson, who claimed that section 2 was in breach of article 8. Both actions failed before the Divisional Court. Martin succeeded before the Court of Appeal in his submission that the DPP’s policy lacked sufficient clarity but that was overturned by the Supreme Court. The Court also held, by a majority (Lords Neuberger, Wilson, Mance, Reed, Clarke, Sumption, Hughes, Lady Hale and Lord Kerr dissenting) that section 2 was not incompatible with article 8. The GMC proceedings were stayed pending the outcome of those related proceedings. The argument now advanced, however, is different from that originally framed. The law[8]The relevant law is clear. Section 1 of the Suicide Act 1961 removed criminal liability from the act of suicide itself, but section 2(1) makes it a criminal offence intentionally to encourage or assist the suicide or attempted suicide of another person. Subsequent attempts to change the law have failed. As Lord Hughes pointed out in R(Nicklinson) v Ministry of

Justice [2014] UKSC 38; [2014] 3 WLR 200 para. 260:

“ … even if the law knew a concept of statutory obsolescence, as it does not, this statute was deliberately re-enacted in 2009, after lively public and Parliamentary debate, and after a private member’s Bill designed to relax the law had been considered in Parliament and rejected… There is no escape from the fact that unless section 2(1) of the Suicide Act 1961 is for some reason or to some extent ineffective, anyone who assists the present claimants or people in their position to commit suicide is guilty of an offence.”
[9]Article 8 confers the qualified right to family and personal life. In R (Pretty) v Director of Public Prosecutions [2002] 1 AC 800 the House of Lords held that the right to choose when to die did not engage article 8 and so the argument that section 2 was incompatible with article 8 failed at the first stage. The case was taken to Strasbourg and the European Court on Human Rights held, contrary to the House of Lords, that article 8 was engaged since it encompassed the right when and how to die. However, the court went on to hold that having regard to the wide margin of appreciation given to states with respect to controversial ethical issues of this kind, it was not a disproportionate interference with that right to impose a blanket ban on all forms of assistance: Pretty v United Kingdom (2002) 35 EHRR 1. Subsequent cases in Strasbourg have confirmed that approach: Haas v Switzerland (2011) 53 EHRR 33, para. 51; Koch v Germany (2013) 56 EHRR 6, paras. 46 and 51, and Gross v Switzerland (2014) 58 EHRR 7 para. 60.[10]The compatibility of section 2 with article 8 was taken before the Supreme Court again in Nicklinson. The Court, by a majority, was not prepared (at least at this stage) to say that there was any incompatibility, although Lady Hale and Lord Kerr dissented and would have been willing to make a declaration of incompatibility on the grounds that it was disproportionate not to cater for exceptional cases when assistance, with certain safeguards, was required in order properly to give effect to article 8 rights. The discretion to prosecute[11]Although the substantive law is clear, its enforcement is in the hands of the DPP. Section 2(4) provides that no prosecutions can be brought without his or her consent or approval. Until the decision of the House Lords in R (Purdy) v DPP [2009] UKHL 45, [2010] 1 AC 345, the DPP gave no specific guidance as to how he would exercise that discretion with respect to assisted suicide. He merely provided a policy, applicable to crimes generally, indicating what factors might be relevant when deciding whether or not to prosecute. Ms Purdy wanted to know whether her husband would be prosecuted for helping her to travel to Dignitas once her condition had deteriorated to such a degree that this would be her wish. She successfully contended that the absence of an offence-specific policy identifying the factors which the DPP would take into account when deciding whether to consent to such a prosecution violated her article 8 rights. It contravened the principle of Convention law that the law (which for Convention purposes is very broad and includes the prosecution policy) should be accessible and foreseeable and should indicate with sufficient clarity the scope of the discretion and its manner of exercise. The House of Lords made a declaration requiring the DPP to promulgate an offence-specific policy “identifying the facts and circumstances which he will take into account in deciding, in a case such as that which Ms Purdy’s exemplifies, whether or not to consent to a prosecution.”[12]The then DPP consulted widely and published a policy in February 2010. In October 2014, following the Supreme Court’s judgment in Martin’s case against the DPP, the current DPP made further potentially important amendments to her predecessor’s policy. I discuss the circumstances in which this was done below. DPP’s policy and its implementation[13]The policy emphasises at various points three fundamental and interrelated constitutional principles. First, the policy does not and could not change the law or decriminalise the offence of assisted suicide. Second, each case must be determined on its own merits and in the light of the particular facts. Third, the DPP cannot give an assurance that a person will be immune from prosecution in any circumstances. As both Lords Sumption (para. 241) and Lord Hughes (para. 272) confirmed in Nicklinson, it would be unconstitutional for the DPP to seek to give what Lord Bingham in Pretty described as a “proleptic grant of immunity from prosecution”; it would constitute an attempt to suspend the law without Parliamentary consent, contrary to the Bill of Rights 1689.[14]The policy is quite detailed. It deals with the need for there to be a proper evidential basis for any prosecution, and then identifies the factors bearing upon the question whether it is in the public interest to mount a prosecution. It sets out sixteen public interest factors tending in favour of prosecution and six tending against. Paragraph 39 says that there is a presumption in favour of a prosecution unless the factors tending against outweigh those tending in favour.[15]I set out the factors tending for and against a prosecution in the Appendix. The principal factors bearing upon the position of a doctor are paragraphs 6 and 11-14 of those which tend in favour of a prosecution, which relate in particular to payment and the nature of the relationship between the suspect and the victim.[17]In practice the effect of the public interest factors is that prosecutions are rare. We were informed that of the 110 cases referred to the Crown Prosecution Service, only two resulted in prosecution. Most of these are cases where it is alleged that family members have provided assistance to a relative. But there are also two cases where doctors have been involved and the decision not to prosecute has been taken.[18]Mr Kier Starmer, the DPP who formulated the original policy, summarised its effect as follows:
“The thrust of the final guidelines is reasonably clear. Although all factors are relevant and will carry different weight in different cases, broadly speaking if the ‘victim’ had a clear and settled intent to commit suicide and if the suspect was wholly motivated by compassion and had not persuaded the ‘victim’ to commit suicide, the likelihood of prosecution was low.”
[19]In my judgment that is an accurate generalisation which reflects the practice with respect to family members and close friends. However, the position of doctors was not so clear. Indeed, paragraph 14 could on one interpretation at least, suggest that any assistance provided by a doctor would put him at risk. However, the DPP has now clarified that the paragraph should not be read in that way. The circumstances of that clarification were as follows. As I have said, in Martin’s case against the DPP he had argued that the lack of clarification infringed Convention law. That submission was accepted by the majority in the Court of Appeal (Lord Dyson and Lord Justice Elias). Lord Judge disagreed because he thought that the guidance was clear and that there would be no problem for any doctor acting out of compassion in a one off situation in the way in which Martin sought. He said this:
“There was much debate about the circumstances in which a professional carer assisting in the death might come to be prosecuted. Our attention was focused on paragraph 14 of factors in favour of a prosecution. Given that paragraph 14 refers to a "person in authority, such as a prison officer", I do not read it as extending to a professional carer who, with no earlier responsibility for the care of the victim, comes in from outside to help. True it is, that for a very short time the victim would be in his or her care, for the very purposes of assisting in the suicide, but it seems clear to me that paragraph 14 addresses the risks which can arise when someone in a position of authority or trust, and on whom the victim would therefore depend to a greater or lesser extent, assisting in the suicide in circumstances in which, just because of the position of authority and trust, the person in authority might be able to exercise undue influence over the victim. As I read this paragraph it does not extend to an individual who happens to be a member of a profession, or indeed a professional carer, brought in from outside, without previous influence or authority over the victim, or his family, for the simple purposes of assisting the suicide after the victim has reached his or her own settled decision to end life, when, although emotionally supportive of him, his wife cannot provide the necessary physical assistance. Save for the purposes of the forensic argument, I do not believe that the distinction between "class 1" and "class 2" helpers is helpful. Naturally, it would come as no surprise at all for the DPP to decide that a prosecution would be inappropriate in a situation where a loving spouse or partner, as a final act of devotion and compassion assisted the suicide of an individual who had made a clear, final and settled termination to end his or her own life. The Policy does not limit, and we know from the responses to the consultation process, deliberately does not restrict the decision to withhold consent to family members or close friends acting out of love and devotion. The Policy certainly does not lead to what would otherwise be an extraordinary anomaly, that those who are brought in to help from outside the family circle, but without the natural love and devotion which obtains within the family circle, are more likely to be prosecuted than a family member when they do no more than replace a loving member of the family, acting out of compassion, who supports the "victim" to achieve his desired suicide. The stranger brought into this situation, who is not profiteering, but rather assisting to provide services which, if provided by the wife, would not attract a prosecution, seems to me most unlikely to be prosecuted. In my respectful judgment this Policy is sufficiently clear to enable Martin, or anyone who assists him, to make an informed decision about the likelihood of prosecution.”
[20]When the case went to the Supreme Court, the Justices disagreed with the view of the majority that the policy was not sufficiently clear to satisfy Convention law. But neither did they accept that the policy, properly interpreted, could sustain Lord Judge’s analysis. However, counsel for the DPP confirmed, on instructions, that the intention was to reflect Lord Judge’s understanding of the position. In the light of the potential confusion, the Court invited the DPP to reconsider and if necessary reformulate the policy, without any obligation to implement Lord Judge’s understanding of the position if, after reflection, it was thought to be inappropriate. This was done and led to a minor modification of paragraph 14. The words “and the victim were in his or her care” were underlined, and a note of explanation was provided as follows:
“For the avoidance of doubt the words “and the victim was in his or her care” qualify all of the preceding parts of this paragraph. This factor does not apply merely because someone was acting in a capacity described within it: it applies only where there was, in addition, a relationship of care between the suspect and the victim such that it will be necessary to consider whether the suspect may have exerted some influence on the victim.”
[21]The intention, as was made plain in a letter to the Supreme Court, was to give effect to Lord Judge’s understanding of the policy.[22]In view of this clarification, Mr Havers QC, counsel for Martin, submits that a doctor can now act with a considerable amount of confidence that in a typical case, and provided he is not the doctor normally caring for the patient, he can give the kind of information which Martin seeks with only a very small risk of prosecution. Matters will be different if there are aggravating features, such as a doctor who has acted in the same way for a number of patients, or where he has care of the patient, but in practice they will rarely arise.[23]The submission is that the GMC guidance undermines this important development and puts doctors who would in all probability not be prosecuted for providing assistance of this nature at risk of being subjected to disciplinary action because of the terms of the guidance. I turn to consider the relevant guidance. GMC guidance[26]The statutory framework which governs the powers of the GMC derives from the Medical Act 1983 (“the Act”). Section 1(1A) of the Act provides that the main objective of the GMC in exercising its functions is to protect, promote and maintain the health and safety of the public.[27]Section 35 of the Act empowers the GMC to provide, in such manner as it thinks fit, advice to members of the medical profession on standards of professional conduct and performance and on medical ethics. The subjective nature of the duty means that there is a broad discretion both as to whether to publish advice or guidance on any particular issue at all, and as to the content of any such advice or guidance. Since 1995 the GMC has exercised this power by publishing Good Medical Practice, its core guidance which sets out the standards of competence, care and conduct expected of all registered doctors. It has subsequently published a range of other guidance. The GMC’s regulatory objectives include the protection of the public interest, a concept which encompasses the protection of patients, the maintenance of public confidence in the profession, and declaring and upholding proper standards of behaviour.[28]Failure to comply with relevant guidance may put in issue the fitness of a doctor to practise. The GMC’s fitness to practise jurisdiction is governed by Part V of the Act. It involves a procedure involving the initial investigation of a complaint by an investigating committee or, more usually, two case examiners. If they consider that there is a realistic prospect of proving that a doctor’s fitness to practise is impaired, the complaint will be referred to a Fitness to Practice Panel to determine that question. This may lead to a doctor being struck off the medical register. Guidance is not strictly binding but it will carry significant weight and any serious or persistent departure from the standards laid down in the guidance is likely to put a doctor’s registration at risk.[29]The fact that criminal proceedings have been taken in any particular situation does not necessarily mean that regulatory proceedings will be taken in their wake, nor vice versa. The focus of concern for regulators is not the same as for prosecutors, as the Divisional Court noted in Ashraf v General Dental Council [2014] ICR 1244 when Sir Brian Leveson P commented upon the interaction between the two sets of proceedings as follows (para. 34):
“… it is important to bear in mind that the purpose of criminal proceedings is the imposition of a sanction for breach of the criminal law; regulators have no choice whether or not a prosecution is mounted (usually by the CPS) following a complaint of crime even if the complainant is the NHS. The focus of regulators is to maintain the standards and integrity of the profession to ensure that public confidence is and can be maintained and it would not be in the public interest for a form of regulatory arbitrage to take place if there was an ‘either/or’ approach to whether proceedings should be pursued through the criminal courts or by the regulator.”
[30]As Sharon Burton, the GMC’s Head of Guidance Implementation, observed in a witness statement in these proceedings, a decision by the DPP not to prosecute a doctor would be a relevant factor to consider but would not determine the question whether there is a realistic prospect of proving that a doctor’s fitness to practise is impaired. The publications under challenge[31]There are two separate publications providing guidance on the issue of assisted suicide. Each was originally provided in 2013 and each has been amended since (most recently in June 2015). The first publication is addressed to the GMC’s case examiners and investigation committee and is entitled ‘Guidance for the Investigation Committee and case examiners when considering allegations about a doctor’s involvement in encouraging or assisting suicide’. The second is a shorter document aimed at doctors and is entitled “When a patient seeks advice or information about assistance to die”. In practice, doctors who wish to know whether they may be subject to professional misconduct charges will focus on the former document, as I will.[32]The guidance was formulated after extensive consultation, including with the DPP. It explains that encouraging or assisting suicide is a criminal offence, and that the DPP has discretion over whether or not to prosecute. It emphasises that the fitness to practice procedures are concerned with the interests of patients and the wider public interest. Paragraph 10 then sets out the following guidance which lies at the root of the current challenge. The current guidance emphasises, as indeed does Good Medical Practice, that doctors should not act contrary to law:
“10 Where patients raise the issue of assisting suicide, or ask for information that might encourage or assist them in ending their lives, doctors should be prepared to listen and to discuss the reasons for the patient's request but they must not actively encourage or assist the patient as this would be a contravention of the law. Any advice or information they give in response should be limited to: an explanation that it is a criminal offence for anyone to encourage or assist a person to commit or attempt suicide, and the provision of objective advice about the lawful clinical options (such as sedation and other palliative care) which would be available if a patient were to reach a settled decision to kill himself. For the avoidance of doubt, this would not prevent a doctor from agreeing in advance to palliate the pain and discomfort involved for a patient in this position should the need arise for such symptom management. Doctors should continue to care for their patients and must be respectful and compassionate. We recognise that doctors will face challenges in ensuring that patients do not feel abandoned while ensuring that the advice or information that they provide does not encourage or assist suicide. Doctors are not required to provide treatments that they consider will not be of overall benefit to the patient, or which will harm the patient. Respect for a patient's autonomy cannot justify illegal action.”
[33]However, not all cases of infringement necessarily lead to formal proceedings. Paragraph 14 identifies some of the considerations which may influence the decision whether or not to pursue a charge in the public interest:
“When considering any allegation of encouraging or assisting suicide, the Investigation Committee or case examiner must decide whether there is a realistic prospect of establishing that a doctor's fitness to practise is impaired to a degree justifying action on their registration. In making this decision they must have in mind the GMC's duty to act in the public interest. The public interest comprises: a) protecting patients b) maintaining public confidence in the profession, and c) declaring and upholding proper standards of conduct and behaviour. In applying this test decision-makers must consider the intensity of the encouragement or assistance: whether it was persistent, active and instrumental, or minor and peripheral. They should also consider the whole context and the nature of the support or information sought, before deciding whether a referral to a fitness to practise panel is required. It is difficult to lay down hard and fast rules and this guidance is not intended to fetter the discretion of the Investigation Committee or case examiners. Each case will depend on its own specific facts.”
[34]Later paragraphs identify cases where a case should be referred to the FTP panel, such as where the doctor has been convicted of a criminal offence, and also where there is a presumption that a case will be so referred but not inevitably. These include cases where any encouraging or assisting took place in a doctor-patient relationship and where the doctor intended to encourage or assist the suicide or knew or ought to have known that this would be the effect of his or her actions.[35]Paragraph 19 gives a non-exhaustive list of cases where conduct may (but without any presumption) raise a question of impaired fitness to practice. They include the following:
“Doctors' conduct may also raise a question of impaired fitness to practise by (this list is not exhaustive):… (b) providing practical assistance, for example by helping a person who wishes to commit suicide to travel to the place where they will be assisted to do so. (c) writing reports knowing, or having reasonable suspicion, that the reports will be used to enable the person to obtain encouragement or assistance in committing suicide. (e) providing information or advice about methods of committing suicide, and what each method involves from a medical perspective.”
Sub-paragraphs (c) and (e) relate to the assistance which Martin seeks in this case, and (b) could be engaged if and when Martin decided to travel to Dignitas, depending upon the role which the doctor were to play in those arrangements. (b) providing practical assistance, for example by helping a person who wishes to commit suicide to travel to the place where they will be assisted to do so. (c) writing reports knowing, or having reasonable suspicion, that the reports will be used to enable the person to obtain encouragement or assistance in committing suicide. (e) providing information or advice about methods of committing suicide, and what each method involves from a medical perspective.”[36]Mr Havers submits that although the language in paragraph 19 is not mandatory, it gives insufficient comfort to a doctor that he will not be subject to proceedings for breach of the guidance in the ways there identified.

The grounds of challenge

[37]The principal ground of challenge is that the GMC has adopted unduly restrictive guidance which disproportionately interferes with Martin’s article 8 right to end his life at the time and in the manner of his choosing.[38]I would accept that article 8 is engaged. The GMC guidance plainly does have the effect of discouraging doctors from assisting Martin in the manner he would wish. Ms Richards QC, counsel for the GMC, submits that any doctor will be dissuaded by section 2 itself and the risk of prosecution which the DPP’s policy has not eliminated and could not eliminate. She also points out that the British Medical Association advises its members to do nothing contrary to law and this advice is likely to be more influential with doctors than the GMC’s guidance. Even assuming that to be true, it does not in my view alter the fact that the guidance, with the ultimate sanction of removal from the register for breach, interferes with Martin’s ability to secure that his life is brought to an end at his chosen moment and in the manner he chooses.[39]The critical question is whether it is justified under Article 8.2. Mr Havers submits that it is not because it fails to give a doctor the same sense of security when giving advice or writing a report as the DPP’s policy. Even assuming that to be true, in my judgment that fact does not begin to raise any Convention argument.[40]Mr Havers concedes that the decision in Nicklinson is that section 2, even read alone, is compatible with article 8. If a blanket ban on assisted suicide does not infringe article 8, it must follow that any step taken to discourage a doctor from assisting a suicide cannot infringe the article either. The DPP could, as a matter of Convention law, have adopted a policy of generally prosecuting assisted suicides if the evidence was sufficient to justify it, without placing the UK in breach of article 8. The fact that the DPP has recently adopted (or at least clarified) what Martin might conceive to be a laxer and more compassionate policy does not affect the application of article 8 at all. The GMC is not obliged to fall into line in order for its guidance to remain article 8 compliant.[41]If the position were that section 2 would in exceptional cases infringe article 8 save for the fact that the discretion conferred upon the DPP is capable of being so exercised as to render it compatible, there would be room for the argument now being advanced. It could be said that the GMC guidance undermines the mechanism which secures compliance with article 8. It was indeed argued by Martin in the earlier case that this was the proper reading of the decision of Pretty in the Strasbourg Court, that Martin was an exceptional case, and that accordingly the DPP had to indicate in his policy that it was unlikely that a doctor would be prosecuted for assisting him in the ways he sought. Both the Court of Appeal and the Supreme Court rejected this submission, finding that section 2 is compatible with article 8 even as a blanket ban. Its conformity with article 8 was dependent neither on the existence of the prosecutorial discretion nor the way that it is exercised. Indeed, Lord Kerr, in an observation with which Lord Hughes expressly agreed, considered - as indeed the Court of Appeal had done - that under the constitution it would not be open to the executive, in the shape of the DPP, to redeem section 2 if it were otherwise incompatible with article 8.[42]In my judgment 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 patients, equally justifies the GMC’s guidance which seeks to reflect and give effect to that principle. The argument Martin advanced in the earlier proceedings with respect to the DPP’s policy was similar, namely that it should be modified to ensure compliance with article 8. Lord Hughes gave it short shrift (para. 288):
“If section 2(1) is not disproportionate unless and until Parliament says that it is, then for the same reason the Director cannot be required to “modify” her policy…”
[43]In my judgment, that succinctly summarises the position here. There is no conceivable basis on which it can be said that the GMC, as a public body, must ameliorate its guidance in order to ensure that the state is in compliance with article 8.[44]There is, in formal terms, a separate argument under article 10 which, as Lord Sumption pointed out in Nicklinson (para. 255) includes the right to give and receive information. Mr Havers accepts that it adds nothing in the context of this case to the article 8 argument. The justification for interfering with the right under article 10 is precisely the same as the justification for interfering with the article 8 right and the two arguments stand or fall together. The legitimate interference with article 8 cannot be circumvented by reformulating the argument in terms of article 10.[45]For these reasons therefore I would reject the principal Convention arguments advanced by Martin. Wednesbury challenge[46]In the course of his oral submissions Mr Havers sought to run an alternative argument to the effect that it was irrational for the GMC not to amend its policy so as to bring it in line with that adopted by the DPP. He submits that the DPP is the public officer responsible for enforcing the law relating to assisted suicide, and 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.[47]We have considered this argument, without objection from Ms Richards, but I have no hesitation in rejecting it. In my view the argument is unsustainable for a host of reasons which include the following:[48]First, the duty to formulate guidance is by statute conferred on a specialist professional body which is far better placed than the court to decide how best to protect the interests of the profession. Mr Havers rightly points out that the court will not defer to the GMC’s judgment more than is warranted, relying on the observations of Lord Millet giving judgment in the Privy Council in Ghosh v GMC [2001] 1 WLR 1915. That concerned the exercise of the GMC’s disciplinary powers, where the courts are better equipped to intervene where fairness requires it. But in my judgment it would have to be a very exceptional case indeed where the court could properly claim, with respect to medical matters, to be a better judge of the public interest than the GMC itself. That is particularly so in a case such as this where the remedy sought is not simply to strike down parts of the guidance, but is akin to a mandatory order requiring the GMC to modify its guidance in a particular way.[49]Second, the argument obliges the GMC to take its lead from the DPP. There is no proper constitutional reason why it should do so, and every reason why it should not. As the court pointed out in Ashraf, the purposes and objectives of the criminal and professional bodies are different; there is no reason to assume that the DPP’s analysis of the public interest when deciding whether or not to prosecute should dictate how the GMC should determine what is required properly to protect the reputation of the profession.[50]Third, for reasons I have given, it cannot be wrong for the GMC to adopt the position that doctors should obey the law, whatever views people may have about the law’s merits. The guidance thereafter makes it plain that not all breaches will necessarily lead to fitness to practise proceedings, and that whether the public interest requires a complaint to be taken to the Fitness to Practise Panel must depend upon all the circumstances of the case. Again, there can be no criticism of that policy[51]Fourth, the GMC could not fetter its discretion by giving an assurance that it would not, in certain particular circumstances, take fitness to practice proceedings against a doctor who assisted a suicide. Mr Havers accepts that. It is true that it could, in a manner similar to the DPP, identify factors in a way which might give doctors a greater degree of confidence that they will not be subject to proceedings. But as Lord Sumption pointed out in the analogous situation of the DPP in Nicklinson (para. 241), the more comprehensive the guidelines, the more the GMC would be at risk of unlawfully fettering its discretion.[52]Fifth, it is not the function of the guidance that it should tell doctors when they can break the law without realistic risk of fitness to practise proceedings and the courts could not possibly require the GMC to fashion its guidance in that way.[53]Sixth, it is not self evident that the public interest, and in particular the protection of the reputation of the profession, would be better served by the express adoption of a relatively lax policy towards certain breaches of the law, particularly in relation to such a contentious and highly charged issue. It is for the GMC to assess what the public interest requires. Conclusion[54]For these reasons, I would dismiss the application.[55]I agree. Appendix

 A prosecution is more likely to be required if:

[1]the victim was under 18 years of age;[2]the victim did not have the capacity (as defined by the Mental Capacity Act 2005) to reach an informed decision to commit suicide;[3]the victim had not reached a voluntary, clear, settled and informed decision to commit suicide;[4]the victim had not clearly and unequivocally communicated his or her decision to commit suicide to the suspect;[5]the victim did not seek the encouragement or assistance of the suspect personally or on his or her own initiative;[6]the suspect was not wholly motivated by compassion; for example, the suspect was motivated by the prospect that he or she or a person closely connected to him or her stood to gain in some way from the death of the victim;[7]the suspect pressured the victim to commit suicide;[8]the suspect did not take reasonable steps to ensure that any other person had not pressured the victim to commit suicide;[9]the suspect had a history of violence or abuse against the victim;[10]the victim was physically able to undertake the act that constituted the assistance him or herself;[11]the suspect was unknown to the victim and encouraged or assisted the victim to commit or attempt to commit suicide by providing specific information via, for example, a website or publication;[12]the suspect gave encouragement or assistance to more than one victim who were not known to each other;[13]the suspect was paid by the victim or those close to the victim for his or her encouragement or assistance;[14]the suspect was acting in his or her capacity as a medical doctor, nurse, other healthcare professional, a professional carer [whether for payment or not], or as a person in authority, such as a prison officer, and the victim was in his or her care; [1][15]the suspect was aware that the victim intended to commit suicide in a public place where it was reasonable to think that members of the public may be present;[16]the suspect was acting in his or her capacity as a person involved in the management or as an employee (whether for payment or not) of an organisation or group, a purpose of which is to provide a physical environment (whether for payment or not) in which to allow another to commit suicide.  On the question of whether a person stood to gain, (paragraph 43(6) see above), the police and the reviewing prosecutor should adopt a common sense approach. It is possible that the suspect may gain some benefit - financial or otherwise - from the resultant suicide of the victim after his or her act of encouragement or assistance. The critical element is the motive behind the suspect's act. If it is shown that compassion was the only driving force behind his or her actions, the fact that the suspect may have gained some benefit will not usually be treated as a factor tending in favour of prosecution. However, each case must be considered on its own merits and on its own facts. Public interest factors tending against prosecution  A prosecution is less likely to be required if:[1]the victim had reached a voluntary, clear, settled and informed decision to commit suicide;[2]the suspect was wholly motivated by compassion;[3]the actions of the suspect, although sufficient to come within the definition of the offence, were of only minor encouragement or assistance;[4]the suspect had sought to dissuade the victim from taking the course of action which resulted in his or her suicide;[5]the actions of the suspect may be characterised as reluctant encouragement or assistance in the face of a determined wish on the part of the victim to commit suicide;[6]the suspect reported the victim's suicide to the police and fully assisted them in their enquiries into the circumstances of the suicide or the attempt and his or her part in providing encouragement or assistance.  The evidence to support these factors must be sufficiently close in time to the encouragement or assistance to allow the prosecutor reasonably to infer that the factors remained operative at that time. This is particularly important at the start of the specific chain of events that immediately led to the suicide or the attempt.  These lists of public interest factors are not exhaustive and each case must be considered on its own facts and on its own merits.