Dignity, Death and Deprivation of Liberty: Human Rights in the Court of Protection
12 October 2012
Wednesday’s debate on current key topics in the Court of Protection was a hard-hitting discussion on matters which elicit strong views, such as voluntary euthanasia, assisted suicide, the role of “dignity” and “sanctity of life”, and whether the latter two principles can ever be reconciled.
The fact that these are not essentially legal issues was underscored by the inclusion of ethics philosopher on the interventionist panel, Professor Anthony Grayling, who fielded the questions put to him alongside Philip Havers QC and Leigh Day solicitor Richard Stein. A video of the event will shortly be available on the 1 Crown Office Row website so I shall try to refrain from any spoilers, but here is a brief trailer to whet the appetite for a full recapitulation.
The evening started with a consideration of the Nicklinson and Martin cases, on voluntary euthanasia and assisted suicide respectively. There were a number of questions put to the panel which essentially rolled up into this:
Should voluntary euthanasia be a possible defence to murder, or can we justify action with a primary purpose of killing a person on the grounds of preventing that person’s harm or suffering?
The panel was broadly in agreement that it should. Richard Stein observed that the argument that there can never be adequate safeguards to protect the vulnerable is being used as a “smokescreen”, and, equally, the notion that disabled people cannot exercise their free will to die because it reduces the value of disabled lives is a “hugely patronising” one. Courts keep saying this is a matter for Parliament, but Parliament won’t take any action on it, as Philip Havers pointed out . He gave evidence before the select committee which considered Lord Joffe’s proposals on assisted dying in 2006. The bill petered because the select committee was “divided right down the middle”. Which is surprising, given the unanimity of the panel and near-unanimity of the audience on this point. And as Grayling observed, if the impossibility of introducing absolutely watertight safeguards were a real obstacle to legislating, we wouldn’t have any banking systems – there is no such thing as a watertight safeguard.
“Euthanasia” means a good death. In Grayling’s view the distinction between voluntary euthanasia (where the individual cannot, possibly through disability, take any part in the steps leading to his death) and assisted suicide is very small indeed. Article 2 cannot mean that the state has a duty to keep people alive –
The ultimate palliative is the right to be released from life. Dying is a living act.
The case of Haas v Switzerland put these questions in even starker form. Even countries that do allow euthanasia have in place very strict conditions such as the presence of terminal illness and pain. But there was no life-threatening illness in this case. Haas suffered from a severe bipolar disorder such that he felt he could not live a dignified life. He sought a prescription for sodium pentobarbital, which would allow him to die in a controlled way, but Swiss law would not allow a doctor to prescribe him the medication because his wish to end his life was seen as a symptom of mental illness. Although the questions for discussion revolved around Articles 2 and 8, asking how a right to private life can encompass a right to die, the panel was more preoccupied with the Catch 22 situation that Mr Haas found himself in, in which the state says he had a mental disorder that prevented him from deciding that this mental disorder made his life not worth living. In any event, in Philip Havers’ view,
it ought to make no difference what we think of the state or condition of the person who wants to die. All that matters is that person should have autonomy.
The middle section of the seminar was taken up with a discussion on deprivation of liberty but the question of autonomy and end of life decisions resurfaced when we got on to the final part “Dignity: Drawing together the Strands”. This featured the case of Patient M (the “minimally conscious” woman whose family sought a declaration that life-sustaining treatment should be withdrawn) and the panel was asked
Should the judge have concluded in this case that in circumstances where there is no immediate likelihood of death and the patient is not in a permanently vegetative state, the principle of preservation of life can never be trumped?
In other words, where should the notion of the sanctity of life lie with respect to dignity? In this, and the case of the anorexic woman resisting force feeding, Richard Stein thought that the preservation of life at all costs was essentially an “empty principle”
We none of us life our lives on the basis of preservation of life at all costs. If we did, we wouldn’t be here tonight
– as Stein explained, he rode a motor scooter to the event. That is not a life preserving measure.
And Grayling chimed in by asking what sort of thing “sanctity of life” could be without autonomy and dignity. There is so much historical baggage in the word “sanctity”
… but we all forget about sanctity of life when we send our soldiers abroad.
As you can tell, the gloves were off by the end of the evening and there was no shortage of participation from the highly informed audience, with strongly expressed contributions from all sides. Whatever side of the controversy you are on I highly recommend downloading the full seminar handout which will go online with the video. It lays out the cases and articulates the questions arising out of them in a much more structured and focussed fashion than I have suggested in this brief description of a highly instructive and fascinating debate.