High Court rejects Tony Nicklinson's plea to allow doctors to end his life

When does the right to life become a right to die?

Today the High Court rejected Tony Nicklinson's plea to allow doctors to end his life. Nicklinson is not terminally ill, but for the past seven years he has been "locked in" as a result of a stroke: fully conscious, but immobile, able to communicate only by blinking. With the full support of his family, he had asked the court to extend the defence of necessity to cover doctors who acceded to his request. As the law stands, any doctor who carried out his earnest request might have found themselves facing a charge of murder. He also hoped to establish that his human right to a private life (under Article 8 of the European Convention) included the right to choose the manner of his death.

The result isn't a surprise. Nor will it be the end of the matter: the family had already announced their intention to appeal should the decision go against them. In the end, though, even the highest court in the land might well conclude, as this hearing did, that such a profound change in the law could only be made by act of Parliament. "It is not for the court to decide," said Lord Justice Toulson this afternoon, "whether the law about assisted dying should be changed and, if so, what safeguards should be put in place." Yet there seems little immediate prospect of legislation. Despite decades of debate and the fact that public opinion has long been sympathetic to euthanasia (provided that there are strict safeguards to protect the vulnerable) Parliament has so far proved reluctant to act.

Instead, the law finds itself in a position of moral incoherence. On the one hand, it refuses to draw distinctions that most normal people would regard as obvious. As the Lord Chief Justice made clear in 2010, upholding the murder conviction of a mother who ended the life of her severely brain-damaged son, the law "does not distinguish between murder committed for malevolent reasons and murder motivated by familial love." A law that puts a loving mother in the same legal category as Ian Huntley, sentencing both to life imprisonment (albeit with different tariffs), is clearly deficient. Nor can the Crown Prosecution Service be relied upon to act with common sense and compassion in such cases. 

At the same time, the law draws distinctions that are, in moral terms, pedantic. For example, it makes what is taken to be a significant distinction between actively ending someone's life (for example, by administering a lethal cocktail of drugs) and passively doing so by withdrawing nutrition. The latter has, since the Tony Bland case twenty years ago, become an almost standard procedure in cases where a patient is assessed to be in a persistent vegetative state with no hope of recovery. The difference means almost nothing to the person concerned - who is unable to express a preference either way. Tony Nicklinson himself could choose to refuse nutrition. This would condemn him to a slow and agonising death, and increase the suffering of his wife and daughters who would be forced to look on helplessly. But it would be legally OK. Death by lethal drugs would be quicker, painless and dignified. But it would be murder. 

If Tony Nicklinson were a dog, it would not merely be legal to end his suffering, it would be a criminal offence not to do so. The RSPCA routinely prosecutes pet-owners who cannot bear to see their beloved animals put down. Perhaps the dog, if it could talk, would express a wish for its suffering to end; perhaps it would cling to life. Society assumes, though, that to be merciful and compassionate is to put the animal to sleep. Why should a fully conscious and intelligent adult human being be treated with less humanity and compassion than a dog? 

The usual answer is that the law exists to protect vulnerable people who might otherwise feel under pressure to choose death so as not to be a "burden" on their loved ones. But their must be other, less cruel, ways of protecting the vulnerable. And the current law risks imposing another sort of burden on the families of people in Tony Nicklinson's position: a stark choice of watching someone you love in agony and asking to die, or acceding to their request at the risk of being convicted of assisted suicide or even murder. 

It's also sometimes argued that to allow profoundly disabled people the right to euthanasia would undermine the value of the lives of all people with similar disabilities. This must be nonsense. To respect human life is to respect more than the continuance of bodily functions: it is to afford respect and dignity to individuals, and that means allowing people to make decisions about their own lives. Including the ultimate decision to end it. 

A civilised and compassionate society will allow, even encourage, people to make the most of life whatever physical or mental disabilities they may have. We will shortly see at the Paralympics a triumphant demonstration of the fact that disability is no bar to achievement. It's possible to have even Tony Nicklinson's level of disability and lead a positive and worthwhile, even successful, life: just look at Stephen Hawking. But forcing someone to live against their will, as a demonstration of society's attachment to the sanctity of life, is neither civilised nor compassionate.

There is, in fact, no real conflict between the sanctity of life and the right of someone in Tony Nicklinson's position to end it. If human life has any special meaning over and above any other sort of life, it is because human beings are capable of self-reflection, of mental anguish, of conscious suffering, which includes the knowledge that one's suffering will end only in death. In such a case as Tony Nicklinson's, such human characteristics only add to the predicament in which he finds himself. For him, the right to die has become indistinguishable from the right to life.

What such a situation reflects, perhaps, is a continuing desire on the part of the law (or of its defenders) to want to punish suicide. A nominally secular society continues to see suicide not as a viable option - even an affirmation of life, because it is an affirmation of autonomy - but as a moral and personal failure, an admission of defeat. This was the mentality that for centuries refused suicides burial in consecrated ground. It is an attitude that ultimately limits human dignity, while at the same time pretending to exult it.

 

Tony Nicklinson's wife Jane comforts him as he reacts to the High Court decision. Photograph: Getty Images
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Leader: Labour and the Brexit debacle

The party appears to favour having its cake and eating it – yet the dilemma is not insuperable.

In the year since a narrow majority of people voted to leave the European Union, the Brexit project has not aged well. Theresa May’s appeal to the electorate to “strengthen” her hand in negotiations was humiliatingly rejected in the general election. Having repeatedly warned of a “coalition of chaos” encompassing ­Labour and the Scottish National Party, the Prime Minister has been forced to strike a panicked parliamentary deal with the Democratic Unionist Party. European leaders have been left bewildered by events in the United Kingdom.

The Brexiteers, who won the referendum on a fraudulent prospectus, have struggled to cope with the burden of responsibility. In the manner of Dr Pangloss, they maintain that the UK will flourish outside the EU and that those who suggest otherwise are too pessimistic, or even unpatriotic. Yet wishful thinking is not a strategy. Though the immediate recession forecast by the Treasury has been avoided, the cost of Brexit is already being borne in squeezed living standards (owing to the pound’s depreciation) and delayed investment decisions.

At the same time, far from disintegrating as the most ardent Leavers predicted, the EU is recovering, with a revival of the Franco-German axis under Emmanuel Macron and Angela Merkel. Donald Trump’s antics have dispelled the illusion that “the Anglosphere” can function as an alternative to the bloc. Britain has embarked on the great task of withdrawal at a time of profound national and global instability.

For all this, the Brexiteers retain an indisputable mandate. What the Brexiteers have no mandate for is their model of withdrawal. And there is a nascent majority in the House of Commons for a “soft” exit. Roughly two-thirds of voters remain supportive of Brexit but they have no desire to harm the economy in the process. A recent YouGov survey found that 58 per cent believe Britain should trade freely with the EU, even at the cost of continued free movement into Britain.

In these circumstances, Labour has profited from ambiguity. Jeremy Corbyn’s promise to uphold the referendum result and to end free movement won the respect of Leavers in the election. His pro-migration rhetoric and promise of a “jobs-first” Brexit impressed Remainers, who were in the mood to give the Tories a bloody nose. Although Labour fell 64 seats short of a majority, it partly spanned a divide that had been considered unbridgeable.

Mr Corbyn’s desire to avoid the cross-party Brexit commission proposed by some commentators and MPs is understandable. As Ed Smith observes on page 22, Brexit is a metaphorical “plague” that contaminates all those who touch it, claiming one Conservative prime minister and fatally infecting another. The Tories, who inflicted an unnecessary EU referendum on the UK, must not redistribute the blame.

As the Brexit negotiations progress, however, Labour cannot maintain its opacity. While vowing to retain “the benefits of the single market and the customs union”, it has also pledged to “end” freedom of movement. Like the risible ­Boris Johnson, Labour appears to favour having its cake and eating it. Yet the dilemma is not insuperable.

The logical extension of the party’s vow to give the economy priority over immigration control is to support continued single-market membership. This is the most practical and reliable means of ensuring that Britain’s dominant services sector retains the access it requires. Membership of the customs union would ensure the same for manufacturers. Economic retreat from the EU, which accounts for 44 per cent of all UK exports, would unavoidably reduce growth and living standards.

Such an arrangement need not entail continued free movement, however. Under existing EU rules (not applied by the UK), immigrants resident for longer than three months must prove that they are working (employed or self-employed) or a registered student, or have “sufficient resources” to support themselves and not be “a burden on the benefits system”.

It falls to Labour, as a reinvigorated and increasingly popular opposition, to chart an alternative to the ideological Brexiteers on the Tory benches as well as in the virulent right-wing press. Is Mr Corbyn a covert Brexiteer? It does not really matter. What matters is that he leads a party of committed Europeans who have no wish to see Britain humiliated, its influence in the world reduced, and its economy damaged by the folly of the Brexit debacle. 

This article first appeared in the 29 June 2017 issue of the New Statesman, The Brexit plague

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