Toppled, choked and locked in: where are human rights when you need them

13 March 2012 by Rosalind English

Tony Nicklinson v Ministry of Justice [2012] EWHC 304 (QB) – read judgment

Jean-Dominique Bauby’s eyelid-blinking account of Locked-in Syndrome had us all quivering at the thought of being blindsided, as he was, at the peak of his career, on some banal afternoon outing. One moment you’re in charge, the next, you’re a living, conscious cadaver, entirely at the mercy of your family (if you’re lucky), the state (inevitably), and, you’re very unlucky, the police.

This is humanity at its most pinched and wretched, one might have thought more in need of the arsenal of human rights than any other situation. But all the big guns are elsewhere, it seems. We have the political stand-off in the Bill of Rights Commission, and all the other noisy controversial products of the human rights industry, welfare, asylum, crime, deportation, prisoner rights and press freedom. In the meanwhile, a much quieter, but much starker drama unfolds in the wake of Pretty , Purdy et al. Now we have Tony Nicklinson, whose case takes human rights ideology back to its roots: a person with his back against a wall.

The Background

The claimant suffered a catastrophic stroke whilst on a business trip in Athens. The local medical system, to its credit, saved his life, but he wished they had not. As a result of this medical catastrophe, Mr Nicklinson is unable to feed himself, scratch an itch, blow his nose, or void his bowels, without the assistance of medical staff. Mr Nicklinson’s right to autonomy was switched off the minute he passed from a healthy operator to being a patient. In his own words:

What I object to is having my right to choose taken away from me after I had been saved. It seems to me that if my right to choose life or death at the time of initial crisis is reasonably taken away it is only fair to have the right to choose back when one gets over the initial crisis and have time to reflect.

So, after a long battle for public funding, he is seeking the help of the courts to get him out of the “sentence of live imprisonment”, to which the current law subjects him. His efforts to get the law changed, by seeking declarations from a judge in court who is able to consider the matter at the sharp end, unlike a parliamentary motion, will be the ultimate test of the Human Rights Act, and its impact on private, individual lives. Mr Nicklinson’s efforts to seek may or may not avail him personally, but whatever happens in the main hearing, these arguments vastly enhance the usefulness of the law to people stuck in this strange medical gulag.

The application

So, Mr Nicklinson has applied for one or all of these declarations:

i) that it would not be unlawful, on the grounds of necessity, for his GP, or another doctor, to terminate or assist the termination of his life.

ii) that the current law of murder and/or of assisted suicide is incompatible with his right to respect for private life under Article 8, contrary to sections 1 and 6 Human Rights Act 1998, in so far as it criminalises voluntary active euthanasia and/or assisted suicide.

iii) that existing domestic law and practice fail adequately to regulate the practice of active euthanasia (both voluntary and involuntary), in breach of Article 2.

Mr Nicklinson’s statement of position turns the classic human rights paradigm on its head. He is pleading for his rights, not because he is a victim, but because his individual choices have been eroded by a modern utopia of happiness which is even more toxic than the religious ban on felo de se (please, he begs, no more counselling – he is not depressed). He asks no more, he says, than for the authorities to respect his right to choose when and how to die. Since suicide was decriminalised over forty years ago, this seems like a request so modest that it should not require a series of court battles on the scale mounted by Pretty, Purdy et al to be granted. As the claimant here says,

why should I be denied a right, the right to die of my own choosing when able-bodied people have that right and only my disability prevents me from exercising that right?

The law on murder and assisted suicide means that at present, Mr Nicholson cannot call on the assistance of anybody, however close, to end his suffering. Because he cannot move, he needs positive action of a doctor in controlled circumstances that had been sanctioned by the court. That clinic in Switzerland is beyond his reach.

The judgment

Charles J is very encouraging in finding that the common law will provide a route through this ethical thicket. He thought not only that the claimant had made a case for his “common law rights of self-determination and dignity”, but that he’d also been persuaded that Mr Nicklinson’s Article 8 were engaged. This of course was critical in determining the defences available to a doctor to charges of murder or assisted suicide.

Next steps

Mr Nicklinson may now proceed on the basis that the court has ruled that his doctors might be allowed a defence of necessity. Comfort may be drawn from Charles J’s courageous stand on this point: on any further application, the claimant should not be fobbed off by the argument that only Parliament could bring about the development and change that the claimant seeks here. As he has said to his legal advisors on the case:

This is good news indeed. I am delighted that we can now move on to discuss the pertinent issues properly in a dispassionate court of law instead of the emotionally charged glare of the media.

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Related posts:

• Are lawyers in right to die cases breaking the law?
• What is a life worth living? Further analysis of “M”
• States Not Obliged to Assist Persons Wishing to Commit Suicide – Antoine Buyse
• GMC to announce policy of striking off doctors who prolong the lives of terminally ill patients against their wishes [updated]
• Previous posts on the Pretty and Purdy cases