The common law understanding that what judges do is a matter of finding the law is enjoying a welcome return.
Tony Nicklinson, the 58 year old Englishman who has been trapped in his body for the past seven years by locked-in syndrome following a stroke, has finally died.
He did so just one week after his unsuccessful bid in the High Court, along with another, slightly younger sufferer with the syndrome known only to it as ‘Martin’, to effect a change to the law in England that would enable doctors to kill people like themselves at their behest, without risk of being prosecuted for murder or assisting another to die.
Nicklinson had unsuccessfully sought to persuade judges to acknowledge ‘necessity’ as a legitimate defence of a doctor against murder charges should one face prosecution for it for helping a patient to die at the patient’s request.
At the same time, the two men had sought a Declaration of Incompatibility from the Court between their human right to a private life, under Article 8 of the European Convention, and current guidelines on who risks prosecution for assisting another to die that were issued in 2010 by the Director for Public Prosecutions upon the order of House of Lords law lords, after a successful legal bid for such clarification made by a multiple sclerosis sufferer in 2009.
In effect, these guidelines only make it clear the loved ones of the terminally ill are unlikely to face prosecution should they assist them to commit suicide by taking them to the Dignitas clinic in Switzerland where medically dispensed assisted suicide is carried out and lawful. The DPP guidelines offer doctors and other health care professionals no corresponding assurances of immunity from prosecution should they do the same, assurances that Martin and Nicklinson were ultimately seeking to secure.
The three High Court judges who heard the two men’s application for a judicial review of these two matters dismissed their application. The judges unanimously ruled that the proposed change to the common law on murder Nicklinson sought was so great that it neither could, nor should, be placed at the discretion of judges. Only Parliament could effect it, they ruled. They also denied any incompatibility between the current DPP guidelines concerning when people would face prosecution for assisting in the suicide of others and the right of these others to a private life under the European Convention.
Following the High Court ruling, Tony Nicklinson was widely reported to have been distraught and incredulous his arguments had not been accepted. Solicitors for the two men immediately announced that the two would be appealing the ruling. In reality, however, as Nicklinson’s wife divulged following the news of his death, he was ‘heart-broken’ by the decision and no longer had the heart to continue his fight to be lawfully killed by a doctor, perhaps realizing that his case had now become hopeless.
Instead he stopped eating, and shortly afterwards contracted pneumonia. Because of a prior non-resuscitation request that he had filed some years earlier, that condition soon led to what his doctor was able to certify as Nicklinson’s death by natural causes.
At Nicklinson’s deathbed were his wife and children who shortly afterwards posted on his Twitter account his last, almost defiant, message to the world. It ran:
‘Goodbye world, the time has come. I had some fun’
It is certainly interesting how quickly Nicklinson was apparently able to effect his departure from this world at his own instigation following his unsuccessful legal attempt to have his termination by a doctor recognized as lawful. So too is it in what apparently good spirits he departed it, given how bitterly he had complained before the ruling about the only available means he had of effecting his death being by starving himself to death.
Like the three judges who rejected his bid, one can only have compassion for Nicklinson and Martin. However, the former’s quick and easy death makes a mockery of their legal need to have recourse to doctors being allowed by law to kill them or assist in their deaths.
Moreover, contrary to Nicklinson’s incredulity at the Court’s refusal to accept the force of his arguments, there were good reasons it did not. The law is the law, and common law has long been deemed necessity inadequate as a defense to a murder charge.
Admittedly, in 2001, an English court seemingly accepted such a plea in connection with the application made to it by a health authority seeking its acknowledgement of the lawfulness of a prospective operation to separate two Siamese twins of whom it was known one would inevitably die following the operation as a result of it. However, as was acknowledged at the time, the death of that twin was only a foreseen and unintended consequence of the operation, not its purpose, which was to save the other twin which could only be saved by its means. Moreover, had the two not been surgically separated, both would soon have inevitably died, given the manner in which they had been connected.
So very exceptional was the case no problematic consequences possibly followed from judicial recognition of the necessity of the surgeons hastening the death of one twin to save the life of the other. Plenty of problematic consequences would assuredly have ensued had the judges acceded to the requests of Nicklinson and Martin.
Although Nicklinson’s counsel argued that stringent judicial safeguards could have been imposed to prevent any possible abuse of such medical license to kill as he had sought, in today’s climate it is difficult to see how such a license would not have been inexorably extended through legally mounted challenges so as to cover doctors killing practically anyone who had asked, or whose legal guardians had asked, to be killed, regardless of the reason.
One has only to see the way in which the legalization of abortion has worked in England in the past half century since it was introduced. Argued at the time as only being authorized in cases of genuine medical need, abortion in England is now practically available on demand, where it is routinely used as a standard form of birth control rather than as a last resort in only the most restricted of medical circumstances.
Similarly, in states such as the Netherlands and in the American state of Oregon where medically dispensed euthanasia or assisted suicide have become legal, over the years so called the safeguards supposedly intended to prevent their abuse have become ever more attenuated and ineffective. As acutely observed by the English law lecturer Jacqueline Laing of the London Metropolitan University in an article published in January this year, entitled ‘Assisted suicide – institutionalised murder?’:
‘One central concern about efforts to institutionalise homicide or suicide is that it erodes respect for human life… The sick, the terminally ill and the disabled are invariably the first to be regarded as proper subjects for medically assisted suicide. The logic of active euthanasia endangers the vulnerable…
‘Once enshrined in law, the practice invariably involves a move towards the elimination of those who have not asked to be killed, those who are unwanted, those who are lonely and low-income (KNMG Dutch Physicians Guidelines, Position paper, 23 June 2011), and those whose deaths offer some advantage to third parties controlling the process. It does so because it involves a radically altered mindset.
‘Organs for transplant are an ongoing incentive for active euthanasia. So too is cost-saving, litigation and payout minimisation, bed clearing, medical research, improper individual concerns about inheritance and even political Malthusianism. In this environment, failures of transparency, i.e. lies and deception, are both pragmatic and inevitable. In Belgium only 52.8% of acts of euthanasia reported to the authorities…
‘Marketed as autonomy-enhancing, pain-minimising and subject to watertight “safeguards”, euthanasia (and its variants) at first glance, appears progressive. The Dutch experience suggests otherwise –there voluntary euthanasia has given way to non-voluntary euthanasia, false reporting and under-reporting. Further, the practice undermines the goals of medicine by effectively destroying palliative care.’
Nicklinson and Martin applied to the courts for a change in the law, because they knew full well the British Parliament was unwilling to make the changes they sought. The DPP guidelines are bad enough, usurping as they do Parliament’s authority in the matter of who should face trial for assisting another to die. Four times in the past ten years, the British Parliament has debated whether to make assisted suicide lawful and has voted against its introduction twice.
The High Court judges were right to refuse to accede to Nicklinson’s request as borne out by his quick and seemingly comparatively easy death following their ruling. It has proved that even the likes of he still had and have a comparatively easy way out that can be taken without the lives of anyone else being imperilled. RIP.