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.