Is Nicklinson a case for the courts?

The sad case of Tony Nicklinson has again brought to the fore the issue of assisted dying that has been simmering in the background for several years, with occasional forays into open debate. Advances in medical science mean that people who, only a few years ago, would have died from illness or accident now survive; but at what cost?

The quantity of life may have been extended, but the quality of life may be sadly lacking, or non-existent as in persistent vegetative state (PVS). In the latter case the court is often asked to decide whether a life might be terminated where there is no prospect of recovery (e.g. Bland).

Increased demand

Where quality of life is lacking, or will potentially deteriorate without hope of recovery, there is increasing demand that people should have the right to end their lives at a time when they wish and in the manner of their choosing. As the law now stands, anyone assisting someone to end their life will be prosecuted for murder. As a result, some people are choosing to go to clinics in countries where it is lawful, the most publicised of these being the Dignitas Clinic in Switzerland.

In the Netherlands, where assisted termination of life has been debated for over three decades, the law was finally changed in 2002 with the passing of the Termination of Life and Assisted Suicide Act. Until that time, individual cases were argued on their merits before the courts.

This is similar to the situation that currently exists in the UK. Mr Nicklinson, who suffered a massive stroke which has left him with locked-in syndrome, is currently seeking a change in the law to allow his wife or a doctor to administer a lethal injection when he decides that he no longer wishes to live. He is seeking a judicial review on the DPP’s stance on consensual killing that it is always in the public interest to prosecute in such cases. Unlike the issue in Purdy, Mr Nicklinson cannot be helped to kill himself; due to his physical immobility he would have to be killed.

Anti-euthanasia groups, who fear that vulnerable disabled people could be badgered and bullied into suicide, have consistently argued against any form of assisted killing. Following Purdy, the DPP issued public interest guidelines relating to the assisted termination of life where a spouse accompanies their wife/husband to a clinic such as Dignitas.

Mr Nicklinson’s case goes even further. He is seeking a review of the law on murder for which there is currently a mandatory life sentence, and motivation, such as mercy killing, is no defence. At the moment it is progressing through the courts as the DPP has indicated that no further guidelines will be issued. On 12 March he won the right to a High Court hearing, despite an application by the Ministry of Justice for the case to be struck out on the grounds that it was a matter for parliament not the courts.

Narrow range

While this case concerns one person’s sad circumstances, it must not be forgotten that a major change in the law of murder is being requested. Such a change has wide-ranging ramifications both for the courts and for society as a whole. Any changes made by the court will set precedent but will, by the very nature of precedent, be narrow in their range of application.

Indeed, it may be that the High Court decides that it is a matter for parliament. As the law stands, there is no discretion for it to be a defence to murder that the person desired, for whatever reason, to be killed. Murder is broadly defined as the intentional killing of one or more persons by another. Mercy killing fulfils that criterion.

Eventually parliament will have to address this issue; a review of the law of murder and of mandatory life sentencing is long overdue. Mr Nicklinson’s case provides such a window of opportunity. A full examination of all the issues can only be made by parliament in its law-making capacity. Any changes made by the courts can only be piecemeal. In the sad and distressing circumstances of Mr Nicklinson, and of the others who will come after, certainty is required of the law.

Also, the public demand certainty. A decision by the High Court will not provide that certainty. As Coke said, what is required is “the golden and straight netwand” of the law as opposed to the “uncertain and crooked cord of discretion”.

Clive Sims is a chartered psychologist, chartered scientist and fellow of the Royal Society of Medicine