“No precedent? Then set one!” – Nicklinson right to die case
20 August 2012
Updated – Tony Nicklinson, one of the two claimants in this case, died on 22 August 2012.
This is Richard Dawkin’s battle cry in response to the recent High Court rejection of the challenge by locked-in sufferers to the murder and manslaughter laws in this country that have condemned them to an unknowable future of suffering.
As explained in my previous posts, Nicklinson, who suffered a catastrophic stroke in 2005, argued for an extension to the common law defence of ‘necessity’ for murder because the alternative – forcing him to stay alive – is worse. His lawyers also submitted that the government is in breach of his Article 8 right to ‘privacy, dignity and autonomy’, a right he cannot exercise independently because of severe disability.
The court rejected the “bold” submission, stating that there was no precedent anywhere in the world and such socially controversial changes were only for Parliament.
But the courts can’t keep ducking away from the problem, because Parliament is never going to address this issue. Why? Because, as Dawkins points out, once again, religion turns out to be the major culprit. Every attempt in the House of Lords “to do something about the right to seek professional (or even amateur) assistance in dying when you are too incapacitated to kill yourself” has crashed and burned, despite huge public support for reform in this area.
Polly Toynbee points out in the Guardian that
In opinion polls, for years, more than 80% have supported this change in the law, but every attempt at a right-to-die reform has been sabotaged by the large religious lobby, galvanised by Care Not Killing [an intervenor in the Nicklinson case]. The red benches, heavily stacked with the religious, including 26 bishops, saw off the last bills.
As Toynbee observes, Care Not Killing lobby has threatened MPs with retaliation from all the faiths in their constituencies. This will no doubt kybosh former lord chancellor Lord Falconer’s attempt to introduce a private member’s bill for the Lords in January for an even more modest solution to this abominable situation: to allow those with a diagnosis of death within 12 months to ask for a lethal prescription.
The High Court had its hands bound by the precedent set by the House of Lords in Pretty and Purdy. But why are our appellate courts so diffident on this score, when they think nothing of interfering with Parliamentary sovereignty over the control of our borders under the Human Rights Convention? And ground breaking precedents have been set before, arguably in areas exclusively in parliament’s jurisdiction. Remember Anisminic? The case went to the Lords in 1968, when judicial deference was still at its height. Nevertheless their Lordships ruled that where a public body makes any error of law that effectively renders its decision a nullity and that a statutory exclusion clause does not deprive the courts from their jurisdiction in judicial review unless it expressly states this. A statutory exclusion clause, mind, written by democratically elected parliament, specifically to exclude the supervision of the courts.
Or, more recently and pertinently to this case since it involves discrimination, the case of Ghaidan v Godin-Mendoza  UKHL 30 where the House of Lords ruled that the relevant provisions of the 1977 Rent Act treats the survivors of homosexual relationships less favourably than survivors of heterosexual relationships. Since there is no rationale or ground for so doing, the surviving tenant of a long term homosexual relationship suffered infringements of his rights under articles 8 and 14 of the Convention when the landlord availed himself of the legislation to terminate the tenancy. Section 3 of the 1998 Act requires that legislation is given Convention-compliant meaning where possible.
Why the same cannot done to the common law of murder and necessity in the context of voluntary euthanasia beggars belief. Of course the opposition, though deadly, does not only emanate from the church. As we can see from the ferocious campaign against physicial-assisted suicide laws in Massachusetts by the Catholic Church and doctors. (Initiatives like this one have failed in California, Maine, and Hawaii.) As evolutionary scientist Jerry Coyne observes in his excellent blog Why Evolution is True,
Why would doctors prolong suffering by withholding medication when they know the patient is doomed to a terrible end without it? Besides, as all doctors know, they already engage in a similar practice. That involves giving overdoses of painkillers like morphine to terminal patients: overdoses that they know will kill them by stopping breathing. The euphemism it goes by is “reducing pain,” since doctors are bound to do that if they can. They ask a patient if he/she is in pain, and if the answer is “yes,” they give more morphine—often enough to cause death.
But if they do that, why not reduce the pain by ending the suffering deliberately and permanently? It amounts to exactly the same thing.
The truth is, this is a burden of responsibility that many doctors are inclined to resist. But that is not a good enough reason for allowing them to avoid it. After all in other areas – such as mental health – they are depriving people of important fundamental liberties sometimes by coercive means all the time. Such onerous duties are carried out routinely be the medical profession and comes with many checks and supervision by tribunals and the courts. There is no reason why such a duty should not extend to people in Nicklinson and Martin’s position and any doctor resisting this sort of responsibility should think twice before entering the medical profession.
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Related posts and other reading:
- Proposal for a “Dignitas” style clinic in Fiji for Australian, New Zealand and Indian citizens
- Locked-in sufferer’s challenge to ban on voluntary euthanasia fails in the High Court
- British Columbia Supreme Court grasps the nettle in right to die case
- 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