Unlocking the Right to Die?

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.

  • Samiahurst

    I agree with your assessment of the likely outcome. But I do have to say that -off the cuff, as you also describe your comments- it makes me sad. If it were me, I think I would want those close to me to be able to bury my person and my body not too far apart in time. If they thought otherwise I might well go with their preference, since as you say being terminally unconscious or dead might not be different from my standpoint in other ways. But in any case, this means I would not really find both alternatives to be indifferent…

  • Ruth Stirton

    This is a very interesting case, and I’m happy to put my twopennorth in.

    What strikes me about these cases is that they are getting stronger. Pretty wanted a right to die. Purdy wanted a declaration that someone who assisted her would not be prosecuted. Nickinson’s first want is a declaration that someone who assists him to die will have a defence of necessity to a murder charge.

    Well, this question is one that the courts have ruled on before. In the case of Re A (Conjoined Twins), the court expressly dealt with the question of whether the defence of necessity would be available to a charge of murder arising from the death of Mary. Nicklinson’s case relies on the ruling in Re A (Children) (Conjoined Twins: Surgical Separation) [2001] Fam 147 which held as follows:

    “An act which would otherwise be a crime may in some cases be excused if the person accused can show that it was done only in order to avoid consequences which could not otherwise be avoided, and which, if they had followed, would have inflicted upon him or upon others whom he was bound to protect inevitable and irreparable evil, that no more was done than was reasonably necessary for that purpose, and that the evil inflicted by it was not disproportionate to the evil avoided.”

    In Re A, the Court of Appeal found that the defence of necessity would be available to the doctors who operated to separate Jodie and Mary. It was a necessary evil to “kill” Mary to save Jodie.

    The question is whether Tony Nicklinson’s life is so awful that killing him is a necessary evil. He says that it is, or at least that it will be at some point in the future. One could argue that he is in the best position to know the answer to this question, and that the court is not adequately equipped to try to answer it. However, I think that they will try, and they will find that however awful his existence is, it will not amount to a “necessity” for someone else to kill him.

    The law in England and Wales has consistently shown that it holds life (and the continuation of life) to be the sort of good that it should protect. It is only in rare and unusual circumstances that courts have gone against that standpoint and taken a decision that results in death. But these cases are all of a particular type: the method of causing the death is an omission to do something rather than an action. For the law, withdrawing artificial nutrition and hydration is different from administering a lethal dose of morphine. Withdrawal is acceptable, but administration is not.

    The problem that Tony Nicklinson’s case highlights quite starkly is the disparity in the approach to situations which are similar. If he was being fed through a naso-gastric tube, and a saline drip, then he could refuse the treatment. The case of Re B confirms that this is his right. And, after a couple of days he would lapse into unconsciousness, and after a week or so he would pass away. He would be without pain, since pain relief could be offered to him. Likewise, if he were in this situation, but already unconscious, then this course of action could be chosen for him, and he could die relatively peacefully and relatively quickly. Yet, because he is capable of eating, and is not reliant on a naso-gastric tube for his nutrition, there is nothing that can be withdrawn from him. While it might be much more merciful to offer him a syringe full of morphine, the law objects because this is an intentional action, rather than a benign omission. The law views omissions as less repugnant than actions. It is not clear to me that this is a coherent position to continue to hold, given situations such as those that Tony Nicklinson finds himself in.

    Since I’ve gone on rather, I’ll come to a conclusion now! This case is at least arguable, and perhaps by having the arguments heard in court, it will bring us somewhat closer to having a national debate on this issue. But, as in all the other cases, the court is likely to say that this is a matter for Parliament. And, I think it is a matter for Parliament. This debate should be had, and it should be had without the constraints of whipped voting, and Parliament should produce a sensible framework that recognises that medicine is getting better, and is keeping people alive for longer. If this doesn’t happen, then the court will eventually make a decision which forces Parliament to act. It won’t happen in this case, and probably not the next one. But if Parliament hasn’t acted, then it might be the one after that.