Tony Nicklinson deserves sympathy but hard cases make bad law

A severely disabled man from Wiltshire is to ask the High Court to allow a doctor to end his life.

Tony Nicklinson, 57, is paralysed from the neck down after suffering a stroke in 2005.

He cannot speak or move anything except his head and eyes and communicates through nodding his head at letters on a perspex board or by using a computer which responds to eye movements.

The Melksham man, who has been married for 25 years and has two daughters, sums up his life as 'dull, miserable, demeaning, undignified and intolerable'.

His lawyers want a doctor actively ending his life to have a ‘common law defence of necessity’ against any possible murder charge.

A spokesman for law firm Bindmans, which represents him, confirmed he had issued proceedings in the High Court asking for declarations that it is lawful for a doctor to terminate his life, with his consent and with him making the decision with full mental capacity.

Earlier this year Nicklinson’s legal team asked the Director of Public Prosecutions to clarify the law on so-called mercy killing but the DPP made it clear there was no flexibility on the law and anyone who deliberately took someone's life would be charged with murder.

They are therefore trying this new route.

In English law, the defence of necessity recognises that there may be situations of such overwhelming urgency that a person must be allowed to respond by breaking the law. There have been very few cases in which this defence has succeeded. However, the Crown Prosecution Service tends to choose not to prosecute those cases where it believes potential defendants have acted reasonably in all the circumstances.

This defence was used in the early trial of Regina v. Dudley & Stephens (1884) 14 QBD 273 DC, where four shipwrecked sailors were cast adrift in a small boat without provisions. To save themselves, the three strongest decided to eat the fourth, the 17 year-old cabin boy. The court ruled that cannibalising the boy was not urgently necessary. Even though the cabin boy would almost certainly have died of natural causes, the sailors killed the boy intentionally and were guilty of murder. There was some degree of necessity arising from the threat of starvation but, at any moment, a ship could have sailed over the horizon to save them as, indeed, the three were rescued. Since they could never be sure that the killing was actually necessary from one minute to the next, the defence was denied. Cannibalism itself is not an offence so long as the death occurs naturally.

Dudley and Stephens were convicted of murder and sentenced to be hanged, however their sentence was later reduced to just six months in prison. The fourth man, Brooks, was not tried, as he had not participated in the murder. The principles from this case form the basis of the defence of necessity not being available for murder.

In order for the defence of necessity to hold sway there must be an urgent and immediate threat to life which creates a situation in which the defendant reasonably believes that a proportionate response to that threat is to break the law.

It is difficult to see how this defence might help Nicklinson who is severely disabled, has a reasonable life expectancy and is not facing any imminent emergency.

However, it is thought that Nicklinson’s lawyers are likely to base their arguments on comments about necessity in the 2001 conjoined twins case where the court ruled that the life of a seriously disabled baby (Mary) could be sacrificed in order that her sister (Jodie) could survive. (A (Children) (Conjoined Twins: Medical Treatment) (No. 1) [2001] Fam 147).

In that case the Court of Appeal said that the doctrine of necessity was more elastic than it had been represented as being in the cabin boy case above.

The Human Rights Act also adds a new dimension.

Nicklinson has Article 8 rights under the European Convention on Human Rights (respect for his private life and family) which must be respected. His lawyers will no doubt argue that these rights cannot be respected unless he dies, and accordingly that the law of necessity needs to give a defence to a doctor who, in the act of respecting his rights, kills him.

However Article 8 also states that the right to respect for private life and family must in a democratic society be balanced with considerations of public safety, the prevention of crime, the protection of health and morals, and the protection of the rights and freedoms of others.

The Murder Act is there in part to protect vulnerable people from exploitation and abuse by those who might have an interest, financial or otherwise, in their deaths. 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.

We also need to realise that cases like Nicklinson’s are extremely rare and that 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. I have previously highlighted inspiring stories on this blog of people who with good support have been able to get to a position where they can see meaning and purpose in lives even in the face of substantial suffering. It is assisted living most want, not assisted dying.

We all accept that there are limits to choice. Even in a free democratic society there are boundaries to our autonomy. We are not entitled to exercise ‘freedoms’ that will endanger the reasonable freedoms of others. That is why we have laws. Every law limits choice and stops some people doing what they might desperately wish to do. This is in order to maintain protection for others.

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. On the other hand it gives judges some discretion to temper justice with mercy when sentencing in hard cases. We should not be meddling with it.

It was therefore refreshing to see a spokesperson for the British Medical Association saying yesterday: ‘The BMA is opposed to assisted suicide and to doctors taking a role in any form of assisted dying. We support the current law and are not seeking any change in UK legislation on this issue.’