An attempt to open the floodgates to euthanasia: the case of Tony Nicklinson

The dust has hardly settled on Lord Falconer's Commission on assisted suicide, a deeply flawed and biased report which recommends that terminally ill people 18 years and over should have the option of a medically assisted suicide, and already the next challenge to the legal principle of the sanctity of life will be thrashed out in the High Court.

Tony Nicklinson, who suffers from locked-in syndrome, will  be arguing tomorrow for a common law defence of necessity for doctors against any charges of murder if they should take his life. One might be tempted to think this is just more of the same, however, there are some fundamental differences between what Lord Falconer's Commission is calling for and what Tony Nicklinson wants: Tony's goal is outright euthanasia, and not just for the terminally ill. He is attacking our long standing laws on murder, and not those of suicide.

Tony's wish to die

A married father of two and living in Wiltshire, 57-year-old Tony suffered a massive stroke in 2005 leaving him paralysed from the neck down. Unable to move his body, except for his head and eyes, laws permitting assisted suicide would be useless for Tony; he is unable to administer the lethal dose of drugs to end his life. Furthermore, not being terminally ill, he would not qualify for an assisted death under Falconer's proposals.

Ultimately, Tony is fearful of a painful and uncertain death and is fed up with his extremely difficult existence. He thinks that it is deeply unfair that he is unable to end his life and he wants a doctor to do it for him.

 A possible defence against murder

Life for Tony does indeed seem unfairly harsh, yet the Director of Public Prosecutions has made it clear that anyone, including a doctor, deliberately taking someone's life would face a charge of murder.

Yet, if it could be argued it were a necessity for the doctor to take the life of the patient, the doctor may have a defence against murder, and so be free to perform euthanasia. Indeed, this is precisely the way legalised, voluntary euthanasia crept in to the Netherlands following the acquittal for murder of Dr. Schoonheim after euthanizing an elderly patient.

This tack of necessity, which is recognised as a defence in English law in some instances of overwhelming urgency, is now being taken by Tony's legal team. The case which best demonstrates this defence, and which is likely to be employed by Tony's legal team, is the case in 2001 of conjoined twins Mary and Jodie. If separated, Mary was certain to die, but Jodie was likely to survive, yet if nothing was done, both would die within one year. The court ruled that, on the grounds of necessity, one twin could be sacrificed in order that her sister could survive. However, Tony is unlikely to die any time soon. Indeed, no one knows how long he might live. It therefore seems illogical to argue his case on the grounds of necessity.

Ramifications if successful

What if this case were successful? In short, it would open the floodgates to widespread, uncontrolled euthanasia, inevitably fuelling calls for statutory law to bring order to the confusion. This is precisely what happened in the Netherlands following their landmark case of necessity. Has statutory law brought the order and control they sought? Intended only ever to be a last resort, euthanasia in the Netherlands is now widely practiced, and open to children as young as twelve. Intended to bring everything out in the open, evidence shows that many cases of Dutch euthanasia and assisted suicide go “unreported and unchecked”. Intended only ever to be upon request, empirical evidence of the slippery slope shows increasing numbers of euthanasia done without the request of patients (non-voluntary euthanasia), including disabled babies and the elderly with dementia.^[1]

Dutch laws have resulted in the vulnerable living in an ever enclosing shadow of death whether they want it or not. Their legal right to die has turned into a moral duty to die. Is this the kind of society we want to create for ourselves? This is far from the culture LIFE envisions and promotes.

This case is highly mistaken

This case hinges on the assertion that Tony has an absolute right to self-determination, to such an extent as to oblige someone else to take his life for him; that he has a right to die and that it is someone else's duty to do it, with the prospect of a painful and distressing death making this all the more urgent.

Is Tony right in his assertions? We already know that his death is not imminent, so the argument of necessity is highly flawed. Some may argue that because he cannot take his own life, he should be helped to die. It must be remembered however, that the decriminalisation of suicide in 1961 did not create a right to suicide - suicide is still very much discouraged and this is why aiding or abetting a suicide carries a penalty of 14 years imprisonment. Yes, one is free to take one's life; but one does not have the right to take it. In fact, The European Court of Human Rights (ECHR) has already ruled in the 2002 case of Dianne Pretty, a motor neurone sufferer, that a disabled person does not have the right to be assisted in suicide on the grounds of discrimination. Crucially, the ECHR has ruled repeatedly that no right to die exists within the European law, not even in respect to one's private life, as the freedom of self-determination has to be balanced by the rights and safety of others. And just last month, the 47 member strong Council of Europe, of which Britain is a member, made a non-binding resolution which declares that euthanasia must always be prohibited.

So, no right to die exists in European law, whether it be at one's own hand or that of another, and self-determination is not absolute but is limited by the rights and safety of others.

The last thing to consider is whether Tony is in fact right about his fears for his death. Will his death be wretched, painful and filled with suffering? Dianne Pretty feared the same, and used the prospect of a painful, distressing death to try and win her case. In the end, when she finally died (of natural causes), her physician said that it had been a very peaceful death. If Tony receives good palliative care, his death could also be as peaceful as Dianne's. Helping one get over ones fears, and accepting the natural course of death, as well as managing pain, is all part of palliative care. We need more of this, and not more time and money spent on debating our laws on killing people.

In conclusion

Some say that our present laws are hard. The simple truth is that, while we all have the utmost empathy and compassion for the suffering and distress Tony lives with on a daily basis, hard cases make bad laws. Palliative care doctors remind us that we must not forget that the majority of people living with this condition and other extremely debilitating diseases actually want to live.

Allowing a defence against murder on the grounds of necessity will have far reaching and devastating consequences; it will not only cause medical confusion, legal confusion, but most distressingly, it will put vulnerable lives at risk. As one of the leading legal authorities on euthanasia, John Keown concludes, euthanasia is “both wrong in principle and dangerous in practice, not least for the dying, disabled and the disadvantaged”.^[2]

Whilst Tony may wish to die, and while he may not be able to exercise his freedom to take his own life, a right to die just simply does not exist, morally or legally speaking. The profound gravity of the issues at stake means that any discourse on possible changes to our present laws must be for Parliament to decide, and not the court room. We must not allow the floodgates of euthanasia to open.