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Unlocking the Right to Die?

12 Mar, 12 | by Iain Brassington

It’s just been reported that Tony Nicklinson has won the right to have his right to die case heard before the courts.  This is the result of a hearing in which the Ministry of Justice’s contention was that any such case would potentially re-write the murder laws, and that this is a matter for Parliament, rather than the courts.

Nicklinson has had “locked-in syndrome” since a stroke in 2005: he’s capable of communication, but little else.  (His wife was interviewed on the Today programme this morning: it’s well worth a listen.)

As I understand it, what makes his case different from that of, say, Diane Pretty is that his argument rests on an appeal to necessity: his wife claims that “the only way to relieve Tony’s suffering will be to kill him.  There’s absolutely nothing else that can be done for him” (skip to about 3:30 in the interview for that bit).  There’s also a dignity aspect to the petition.

This being news that’s only broken in the last couple of minutes, further details are slightly sketchy.  (I suspect there’ll be a statement from the MoJ, but I can’t see anything on their website just yet.)  However, I’m prepared to stick my neck out to make a prediction.  It’s this: Nicklinson will lose his case when it comes to the courts.  As in other right-to-die cases, the judges will express sympathy with him, but insist that it’s not in their power to make alterations to the laws on murder (especially given the DPP’s guidance from a couple of years ago); and/ or they’ll simply deny that necessity applies in cases like this.

On this last point, matters are potentially quite interesting from an ethicist’s point of view.  The claim that the only way to end someone’s suffering is to kill them is – on one level – fairly straightforwardly false.  Suffering depends on consciousness rather than life, and so if you’re really concerned to end suffering, then you can do so by ending consciousness.  Killing is one way to do this, but not the only one.  Inducing a coma would have the same effect, for example.  And that amounts to the idea that killing probably won’t be covered by a necessity claim.  (I’ve claimed in a slightly different context that, from the point of view of the patient, it ought to be a matter of indifference whether to opt for continuous deep sedation or death; and if that’s correct, then Nicklinson ought also to be happy with the prospect of a permanent coma if all else is equal.)

Ethically, though, things mightn’t be that straightforward.  One question that we might want to ask is why we shouldn’t kill a person if we are prepared to put an end to those functions that make a person more than a warm, fleshy medium-sized solid object.  This point doesn’t hinge on any technical definition of personhood: rather, it’s just that, if people are morally important in a way that isn’t true of other more-or-less warm, fleshy, medium-sized objects, then that’s presumably for some reason to do with their psychological capacities.  If you remove those capacities, then you are left with little more than a lump of meat.  It’s a lump of meat with a history, perhaps – but that’d be ineliminable anyway.  If – as seems plausibly to be the case – we care about the body primarily because of the person whose body it is, then there would be less reason to strive to keep the body alive once the person has gone.

(Relatedly, if we imagine someone who had demented to the point that, by a few months ago, there was really nothing left of the old them there, and then imagine that this person died, it would be perfectly understandable to have grieved far more six months ago than now, on the grounds that that’s when the important bit about the person who died vanished.)

Now, there would remain a range of second-order questions concerning (for example) the symbolic aspects of the body, and our willingness to destroy them.  And there’d also be questions to be asked about resources.  If the important thing about the body had irretrievably gone but we were still spending public money on the maintenance the body, would that be just?  That is – if a person’s mind has gone and noone expects it to return, would it really be worth maintaining their body?  If it were, for how long?  (Granted that a body hooked up to a machine will not die prematurely because of, say, a road accident, would this mean that we have to keep it alive until it had reached the average age of death?  Longer?  Not as long?  It’s unlikely that we’d morally have to keep it sustained forever – but, if not forever, why not pull the plug now?  It is, after all, neither here nor there to the bloke in the bed.)  And what would have to be sacrificed in order to carry the cost?

Even if the resources were privately provided, there would still be ethical questions to ask, granted a sufficiently broad understanding of ethics.  Would it be practically reasonable for any person to keep spending the money?  Might it even in some circumstances be pathological to do so?

Still: I suspect that, legally speaking, the necessity claim will carry little weight on its own.  The dignity argument might add something here – it’s just about conceivable that the judges will accept that a biological life in a coma would be undignified, that this sort of indignity is built into a persistent coma, and that it would not be something that we ought to promote.  But whether they’ll accept that this is legally important enough to tip the scale is highly dubious – it’s not swayed the courts hitherto, and this kind of argument seems to be more powerful in respect of (negative) refusals of treatment than in respect of (positive) requests.  Indeed, whether it’s enough ethically speaking, not just legally, is a moot point.

Any thoughts from lawyers?  I’ll admit that this post is very much an off-the-cuff response.  It’ll be interesting to see how the case goes.  But I’ll repeat: I think we all know what the outcome’ll be.

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