Monday 18 June 2012

Tony Nicklinson's case is tragic but there are limits to choice in a free society

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.


  1. Dr Saunders writes regarding the request by Tony Nicklinson to essentially legalise euthanasia:
    ‘Such a change would have far reaching implications by potentially removing legal protection from large numbers of sick and disabled people.’ He is correct:

    ‘Euthanasia, once accepted, is uncontrollable for philosophical, logical and practical reasons rather than slippery slopes of moral laxity or idleness. Patients will certainly die without and against their wishes if any such legislation is introduced.’ (Statement by the Association for Palliative Medicine and the National Council for Hospice and Specialist Palliative Care Services regarding the ‘Patient-Assisted Dying Bill’, 2003) The following cases support above statement.

    It follows a list of cases of coercion in physician-assisted suicide (PAS) and euthanasia
    [source for these cases: Madelyn Hsiao-Rei Hicks. Physician-assisted suicide: a review of the literature concerning practical and clinical implications for UK doctors. BMC Family Practice 2006, 7:39]

    Case 1, Oregon: An 85-year-old cancer patient with worsening dementia requests PAS but her psychiatrist believes that she is being pressured by family. Nevertheless, she is then approved for PAS by a psychologist and receives assisted suicide [16; note references refer to the Hicks paper].

    Case 2, Oregon: Louise, who has a degenerative neurological disease, requests PAS. As her disease progresses, those in her network who support her suicide become increasingly anxious that she will become too mentally or physically incapacitated to act on her request. This includes her doctor, her mother, a friend who will be present at her suicide, and the Oregon Compassion in Dying PAS advocate who has arranged for a New York Times reporter to fly in and cover the suicide. Louise says she is almost ready but not quite. She wants a week to relax and be with her mother. On learning indirectly that her doctor thinks she will not be able to act if she waits, she appears startled. Her mother tells her, "It's OK to be afraid." She replies: "I'm not afraid. I just feel as if everyone is ganging up on me, pressuring me. I just want some time" [15].

    Case 3, The Netherlands: A wife who no longer wishes to care for her sick, elderly husband gives him a choice between euthanasia and admission to a nursing home. Afraid of being left to the mercy of strangers in an unfamiliar place, he chooses euthanasia. His doctor ends his life despite being aware that the request was coerced [14].

    Case 4, The Netherlands: Cees requests euthanasia one month after being diagnosed with ALS (MND). As required, his request is assessed by the primary doctor who will carry out the euthanasia and by a consultant. During their assessments, both doctors allow Cees's apparently resentful wife to answer all the questions directed to him, even though his speech is still understandable and he can type on a computer. His ambivalence about euthanasia is expressed by repeatedly pushing the date back. It is also expressed by weeping in response to the doctor's pro forma question of whether Cees is sure he wants to go ahead with euthanasia. His wife quickly answers affirmatively for him and then tells the doctor to move away from Cees, saying it is better to let him cry alone. At no point does a doctor ask to talk with Cees alone before his euthanasia [15].

    Not surprisingly, Dr Karel Gunning, a Dutch doctor stated : ‘Once you accept killing as a solution for a single problem, you will find tomorrow hundreds of problems for which killing can be seen as a solution.’
    (Quoted in Wesley J Smith. Forced exit. The slippery slope from assisted suicide to legalised murder. 2003.)

    1. Rosengarten, this is horrific!

    2. Thanks for posting this Rosengarten.

      This is exactly the sort of testimony that the Channel four programme failed to give and when Kevin Fitzpatrick of 'Not Dead Yet' talked about potential abuses on the programme he was told by both Nicklinson and his daughter that he was being 'ridiculous'.

      In reality he was giving a voice to those who have no voice and do not have the might of the media behind them.

  2. I agree that the law shouldn't be changed, but ever since I first heard about Tony Nicklinson and his condition, I can't stop thinking about him. It does sound like his life is torture.

    Also, it was mentioned above that, "The overwhelming majority of people with severe disability 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". I find this hard to believe for those who have locked-in syndrome. I am sure that if I had the syndrome, I would want to die too, (though I am not saying that I would ask for a change in the law). While I agree with most of what is written above, I do feel that it undermines how torturous life is for those who are suffering from locked-in syndrome. Yes, adaptations and getting used to conditions are possible, but when an illness is so overwhelming, intense and disabling in so many ways, and all you can do is communicate with your eyes, I doubt that many, if any, adaptations would make life bearable, let alone happy. I know that if I, as a person who has an illness, (a mental health one), was asked to make adaptations to my life and just get used to my condition, I would only feel worse, not better. All it would teach me is that the person telling me those things obviously didn't understand what it was like to live with that condition.


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