Tony Nicklinson: the right to die?

News|August 23rd 2012

Who would not be moved by the plight of Tony Nicklinson, the paralysed stroke victim who succumbed to pneumonia earlier this week?

His death came a mere six days after he failed in a High Court bid to be given the right end his life with the help of a doctor. When the judgement was announced, on 16 August, his despair was all too clear from that day’s news reports.

Speaking to his lawyer shortly afterwards, using, as usual, a computer operated by eye movements, Mr Nicklinson spoke starkly: “I fear for the future and the misery it is bound to bring.”

But that feared future never came. He began to refuse food the same day and the end followed quickly. He was 58.

Mr Nicklinson had suffered from Locked-In Syndrome, a dreadful condition in which the sufferer loses control of nearly all the muscles in their body, apart from their eyes. It can be caused by disease, brain injury, or as in Mr Nicklinson’s case, a severe stroke. The person’s mind is usually quite unaffected, hugely amplifying the distress caused by the condition.

Mr Nicklinson had spoken vividly about the indignities of his daily life: “I have no privacy or dignity left. I am washed, dressed and put to bed by carers who are, after all, still strangers. I am fed up with my life and don’t want to spend the next 20 years or so like this.”

His stroke occurred in 2005 during a business trip to Athens. Before that dark day, he worked as a manager in Dubai and led a physically active life, skydiving and playing rugby.

We can only imagine the depths of the distress Mr Nicklinson must have felt. But as a solicitor, I also wonder why he and his family ever thought their High Court bid had the slightest chance of succeeding.

Specifically Mr Nicklinson had sought an assurance that anyone who helped him end his life would not be charged with murder. He had hoped to achieve this by asking the court to change the legal definition of murder in order to exclude euthanasia.

The basis for this radical argument was the right to “private and family life”, as enshrined in article 8 of the European Convention on Human Rights. His right to autonomy and self-determination included the right to choose how he died, he claimed.

I met Mr Nicklinson’s fine daughters Beth and Lauren during a recent appearance on This Morning. Their determination to fight for their Dad’s wishes was clear, admirable and entirely understandable, but as I sat and talked to them I just couldn’t see how the bid could possibly succeed.

However reasonable the arguments for Mr Nicklinson’s right to self determination may have seemed, there was one huge problem. The courts administer and interpret the law, but it is the politicians who create it.

Consequently, changing the law on murder was always going to be a matter for Parliament.

Sure enough, when the judgement was delivered on August 16, it was unequivocal.

Lord Justice Toulson said: “It is not for the court to decide whether the law about assisted dying should be changed and, if so, what safeguards should be put in place. Under our system of government these are matters for parliament to decide, representing society as a whole, after parliamentary scrutiny, and not for the court on the facts of an individual case or cases.”

Even one-time Chancellor Lord Falconer, a former chair of the Commission on Assisted Dying, disagreed with Mr Nicklinson’s bid, despite the peer’s previous attempts to introduce a law on assisted dying. Writing in the Daily Mail, he said: “We [the Commission] concluded that the right to be assisted to die should be available to those who have only 12 months or less to live, and it would also have to involve the person killing themselves and not being killed by someone else. Suicide, not euthanasia.”

So if Mr Nicklinson’s Legal Aid-funded campaign was doomed to failure from the start, what ultimately was the point of it?  To raise awareness of these difficult issues, to try to affect the political climate even a little, to nudge the politicians in a particular direction? Perhaps all of those things will be its legacies, but I suspect the real reason was more personal: a goal to strive for, something to fight for in a seemingly hopeless situation.

There can be no doubt that Mr Nicklinson believed in his cause fiercely. And then, when the judgement was finally handed down, reported his lawyer, “the fight seemed to go out of him”.

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  1. DT says:

    A beautifully and sensitively written piece Marilyn. 
    You’re right, it was / is a tragic case, but it was never going to succeed – parliament needs to be more pro-active.
    I don’t know what advice Mr Nicklinson was given by his instructed solicitors and I don’t know how they managed the expectations of him and his family, so I won’t speculate, however, Art. VIII HRA could never be stretched to that extent in my mind.
    I do think there needs to be further debate around this matter though. I don’t think this case will be the ‘trigger’ for a much needed ‘higher level’ discussion, but we do need one.
    Adult social care lawyers of Local Authorities are at a loss with these sorts cases and they’re growing in number. They’re really difficult because the balance between a service user having ‘independence’ & free will needs to be set against safe-guarding.
    There has be debate around the fact that this case was publicly funded and given the likelihood of success, should this have been so. I would be interested to hear other readers views on this. I know that it’s incredibly delicate but I think that the use of public funds needs to be at the fore-front of every person’s mind who authorises expenditure.
    So many people find this sort of case unpalatable and cannot even begin to think about the ending of a life. However, the people in the driving seat are usually able-bodied people; they cannot comprehend what this gentleman and his family have endured. My heart, respectable admiration goes out to them.
    I can see society’s objections to allowing people to choose to die, but I think if duress can be ruled out and they have capacity as per MCA 2005, (and that is absolutely critical), then so be it. I am thinking with my heart and not my head – rightly or wrongly.
    I know my view is not to everybody’s liking, but I think how I would feel in that situation and I think that this brave man in THIS situation and his family should have had their views & wishes respected.

  2. Arkletten says:

    Thank you for this sensible and informative response. I think you are right that it gave him something to strive for. I have been researching what I can find out about this unfortunate man.
    It seems he had something of an agenda beyond simply being relieved of his suffering and has been using his suffering quite shamelessly to promote that agenda.
    It seems that he is an atheist of the extreme sort, and his family are also atheists, though I do not know if their atheism is as dogmatic as his was.
    It seems that six months prior to the stroke he took out a living will that he did not wish treatment in the event of any incapacitating incident. Therefore he held clear and convinced views that for him at least, life was not worth living should it be a severely diminished life. His advocacy of euthanasia is therefore ideological, and is not necessarily related to his suffering.
    I think he was simply enraged by the court’s decision, his tears were tears of fury not despair; and that he was a very arrogant man, used to getting his way. Apparently he believed that what prevented euthanasia were religiously based laws. But I profoundly disagree. The law against euthanasia is secular; the ‘sanctity’ of life concept is not literally religious, it is just an expression people use to mean something that has the highest value, our most deeply held beliefs. In particular, the Hippocratic oath is secular, and pre-dates Christianity by several centuries. The BMA upholds this position from a secular ethical perspective. Yet this man had the arrogance to demand that physicians abandon their Hippocratic oath.
    Much though I feel pity for this man, he was profoundly misguided. He was not simply a suffering individual, but a man with a mission to change society’s key values, because he believed they were Christian and therefore wrong.
    When he suffered the stroke his fury at his condition was directed at the ethical basis of society, which he believed to be Christian.
    He did not want to commit suicide, he wanted the law to be changed to allow a physician to do it for him. This was an ideological agenda. He always possessed the ability to end his life, by simply refusing food.

  3. ObiterJ says:

    One cannot fail to have immense sympathy for Mr Nicklinson and his family but I have no doubt that, in this instance, the judges were right in saying that this is a matter which must be left to Parliament.
    Your post asks – I also wonder why he and his family ever thought their High Court bid had the slightest chance of succeeding.
    The answer to this lies, I am afraid, in the desire of some within the legal profession to make names for themselves by encouraging the bringing to court of such cases. Such people knew full well what the judicial answer was likely to be. So why bring the case? is it that by doing so greater pressure is placed on politicians to act. Thus, the courts are being “used” in a rather political way.
    Parliament has an ability which judges do not have. That is, Parliament can appoint committees to examine controversial areas of law and to report with recommendations. Witnesses can be called to such committee hearings. In this way, legislation should be far better informed.
    Almost all commentators on this sensitive topic agree that, should the law ever be amended, strict safeguards are required. Surely, it was not for the judges to invent such safeguards and it would have been even worse to have changed the common law without putting in place any safeguards so that matters were left to the vagaries of case law.
    Recently I noted some comments on Twitter that the judges do sometimes radically alter the law. The law on marital rape is the classic example of this. However, it was clear that attitudes to rape within marriage had altered radically in society and the alteration of the law could be seen as the common law merely updating itself in relation to something which had become almost entirely uncontroversial. In relation to life or death matters, the common law has (rightly I think) took a firm stance and there is probably no clear consensus in society generally favouring Mr Nicklinson’s position. (To those who argue that there is a clear consensus I would ask – How do you know – where is the evidence?).
    However much sympathy one has for the particular case, the judges were right not to seek to alter the law.

  4. Marilyn Stowe says:

    Obiter J
    Exactly. I was struck by the girls’ utter conviction that their father would succeed in law, even if he had to take it to the highest court possible, when objectively he simply could not hope to change the law and indeed a former Lord Chancellor was publicly and sensitively telling him.
    I felt deeply sorry for the entire family. Should legal aid have been made available? Was it in Mr Nicklinson’s best interests? It’s a sensitive and moot point with arguments both ways.

  5. DT says:

    Obiter J
    You’re absolutely right – this is not a job for a judge, it needs to go to parliament.
    And as for RvR [1991] (rape in marriage), yes, it was just a case of the common law catching up with social views and thank goodness it happened, even if it was long over-due.
    For me (and you raise this point too) the matter of safeguards is critical here. I do believe that people need to be able to live (and die) with dignity, but we must ensure that if the law is changed and they choose to die and they are assisted, that the law can safeguard and protect against duress and the likes.
    I do not believe that this case should have been publically funded. Yes, it’s an important area of the law which is in the public interest, however, I do not believe that anybody realistically believed that there was a ‘reasonable chance of success’ and it must have cost a fortune. I think the Certificate should have been challenged.
    I do believe that this was about somebody making a name for themselves too!

  6. ObiterJ says:

    I confess to not being entirely sure about the legal aid point raised. Whether to issue a certificate is usually left to officials and the practical reality is that not many of them will throw back a request supported by leading counsel’s opinion that there is a case to be made on human rights grounds. Things may change when LASPO 2012 kicks in next year – we’ll see!!
    Interestingly, in the the Tony Bland case the House of Lords held that life-support could be withdrawn but required application to be made to the High Court. There is of course a positive step in the withdrawal of support in the knowledge that it will lead to death. However, in the cases to which Bland (and subsequent case law) apply there is always the point that life itself is being artificially maintained and that the possibility of any change for the better in the patient’s condition is very unlikely. It is nevertheless interesting that the judges felt able to take upon themselves the task of adjudicating on such cases. They could have reiterated the old point that doctors must strive to keep patients alive and that anything beyond doing so was a matter for Parliament.
    Interesting material here Marilyn on your wonderful blog. I visited Coble landing in Filey the other week. A lovely day – sunny and breezy with gentle waves rolling in over Filey Brigg and a band playing in the lovely gardens nearby. I read somewhere that this was a favourite spot of the young Tony Bland for whom life was cut so tragically short at Hillsborough. I always recall the case when I visit there.

  7. ObiterJ says:

    I meant to add that, in Mr Nicklinson’s case, there was an application to strike out the proceedings. The decision of Charles J is reported at Tony Nicklinson v Ministry of Justice and the DPP [2012] EWHC 304 QB. He allowed it to proceed to full hearing.
    On 18th June I wondered whether the courts would “cross the Rubicon” and argued that they would not. Please have a look at:

  8. Marilyn Stowe says:

    Obiter J
    Read your post, its excellent I fully agree with you and many thanks for the link.
    As for Yorkshire …..well!!!! Whose county is it?!!!
    Very best wishes

  9. ObiterJ says:

    When might judges change the law? Interestingly, I see that Lord Walker has just spoken about this. See his speech in Victoria, Australia:

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