Tony Nicklinson is 58 and paralysed from the neck down after suffering a stroke in 2005.
He is seeking legal permission for a doctor actively to end his life.
The Ministry of Justice had previously argued that the case should be struck out on the grounds that it is a matter for parliament, rather than the courts, to decide.
However the case has been allowed to go forward to a High Court hearing (A second case (that of ‘AM’ or ‘Martin’) is to be heard at the same time but has attracted less publicity).
The key point to grasp about this case is that Nicklinson, because he is not capable of killing himself even with assistance, is not seeking assisted suicide but euthanasia. So this is an assault on the law of murder and not the Suicide Act 1961.
Nicklinson is pushing for an even greater change in the law than either the controversial Falconer Commission on ‘Assisted Dying’ or the lobby group Dignity in Dying (formerly the Voluntary Euthanasia Society). They campaign for assisted suicide for people who are terminally ill – but euthanasia is one step further than assisted suicide and Nicklinson is not terminally ill.
Such a change would have far reaching implications by potentially removing legal protection from large numbers of sick and disabled people.
No one can help but be sympathetic to Tony Nicklinson but cases like his are extremely rare and hard cases make bad law. The overwhelming majority of people with severe disability - even with ‘locked-in syndrome’ - do not wish to die but rather want support to live and the longer people have locked-in syndrome then generally the better they learn to cope with it and find meaning, purpose and contentment within the confines of the condition (See my previous blogs about Bram Harrison, Nikki Kenward, Jean-Dominique Bauby, Martin Pistorius and Matt Hampson)
The desire to die is not primarily about physical symptoms but about the particular person and their ability to adapt to living with a profound disability. Most people with locked-in syndrome are happy, according to the biggest survey of people with the condition. We should not, as RCGP President Iona Heath argued recently, be seeking technical solutions to what is in reality an existential problem.
Nicklinson's legal team will be arguing two things:
1.'Necessity' can, in these circumstances, be a defence to murder (see my previous blog for what this means)
2. The existing law of murder, insofar as it denies Nicklinson the chance to be actively killed at his request, is incompatible with Article 8 of the ECHR (European Convention of Human Rights) - dealing with 'right to respect for private and family life'.
Nicklinson has the right to refuse treatment under existing law, and could do so, but what he is seeking to do instead is to give doctors the power to kill in specific circumstances on grounds of ‘necessity’. That would be a very dangerous precedent indeed.
The current law is clear and right and does not need fixing or further weakening. On the one hand the penalties it holds in reserve act as a powerful deterrent to exploitation and abuse by those who might have an interest, financial or otherwise, in the deaths of vulnerable people. On the other hand the law gives judges some discretion to temper justice with mercy when sentencing in hard cases. We should not be meddling with it.
Any further removal of legal protection by creating exceptions for bringing prosecutions would encourage unscrupulous people to take liberties and would place more vulnerable people – those who are elderly, disabled, sick or depressed – under pressure to end their lives so as not impose a burden on family, carers or society.
Even in a free democratic society there are limits to choice. Every law limits choice and stops some people doing what they might desperately wish to do but this is necessary in order to maintain protection for others. No man is an island and this case is about much more than Tony Nicklinson.