Tony Nicklinson has “Locked-in Syndrome” and is unable to do anything for himself, much less, if he chooses, to die by suicide, even though, given his dependent condition, and the limitations imposed by his physical condition, he may at some time in the future wish to do so. In his appeal to the court Mr. Nicklinson said, regarding his condition following a stroke on a business trip to Athens in 2005:

It left me paralysed below the neck and unable to speak. I need help in almost every aspect of my life. I cannot scratch if I itch, I cannot pick my nose if it is blocked and I can only eat if I am fed like a baby – only I won’t grow out of it, unlike the baby. I have no privacy or dignity left. I am washed, dressed and put to bed by carers who are, after all, still strangers. You try defecating to order whilst suspended in a sling over a commode and see how you get on.

I am fed up with my life and don’t want to spend the next 20 years or so like this. Am I grateful that the Athens doctors saved my life? No, I am not. If I had my time again, and knew then what I know now, I would not have called the ambulance but let nature take its course. I was given no choice as to whether or not I wanted to be saved. However, I do concede that it was a fair assumption given that I had asked for the ambulance and associated medical staff.

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.

I’m not depressed so do not need counselling. I have had over six years to think about my future and it does not look good. I have locked in syndrome and I can expect no cure or improvement in my condition as my muscles and joints seize up through lack of use. Indeed, I can expect to dribble my way into old age. If I am lucky I will acquire a life-threatening illness such as cancer so that I can refuse treatment and say no to those who would keep me alive against my will. 

By all means protect the vulnerable. By vulnerable I mean those who cannot make decisions for themselves just don’t include me. I am not vulnerable, I don’t need help or protection from death or those who would help me. If the legal consequences were not so huge i.e. life imprisonment, perhaps I could get someone to help me. As things stand, I can’t get help.

I am asking for my right to choose when and how to die to be respected. I know that many people feel that they would have failed if someone like me takes his own life and that life is sacred at all costs. I do not agree with that view. Surely the right and decent thing to do would be to empower people so that they can make the choice for themselves. Also, 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? [my bold italics]

(For this, see the Judgment in the case here, paragraph 3.) I have included bold italics for those parts of Nicklinson’s statement that seem to me to be particularly salient, although the judge, Mr. Justice Charles, did not agree that Nicklinson should be able to argue “that existing domestic law and practice fail adequately to regulate the practice of active euthanasia (both voluntary and involuntary), in breach of Article 2 [of the European Convention on Human Rights].” (para 5) And, while I do not discuss the bolded italicised parts in what follows, I consider these to be of vital importance in judging whether or not a person should be considered justified in making a decision to end his or her life. As you will see, Mr. Justice Charles takes very seriously Nicklinson’s claim that his dignity and privacy are threatened. But the other parts, concerning as they do questions of autonomy and competence, are vital to any decision being made with respect to the hastening of death. It is widely thought that such a decision cannot be made by a person who is not depressed. I would argue that, even if this were so, it should not follow that no one should be considered competent to make that decision, but it is not so, and it is perfectly reasonable to suppose that a person might make such a decision who is not depressed or otherwise deemed to be mentally incompetent. There is a longstanding view that only the depressed can choose to end their lives. This is false. Of course, competence and autonomy must be assessed, but the hurdles to a positive judgement of competence and autonomy should not be placed unrealistically high.

Mr. Justice Charles rejected Nicklinson’s plea for this third declaration (viz., in paragraph 5, quoted immediately above), mainly on the grounds that Nicklinson did “not seek to challenge the conclusion of Lord Bingham in paragraph 5 of his speech in Pretty that Article 2 cannot be interpreted as conferring a right to die, or to enlist the aid of another in bringing about one’s own death.” The relevant paragraph reads as follows:

5. The Secretary of State has advanced a number of unanswerable objections to this argument which were rightly upheld by the Divisional Court. The starting point must be the language of the article. The thrust of this is to reflect the sanctity which, particularly in western eyes, attaches to life. The article protects the right to life and prevents the deliberate taking of life save in very narrowly defined circumstances. An article with that effect cannot be interpreted as conferring a right to die or to enlist the aid of another in bringing about one’s own death. In his argument for Mrs Pretty, Mr Havers QC was at pains to limit his argument to assisted suicide, accepting that the right claimed could not extend to cover an intentional consensual killing (usually described in this context as “voluntary euthanasia”, but regarded in English law as murder). The right claimed would be sufficient to cover Mrs Pretty’s case and counsel’s unwillingness to go further is understandable. But there is in logic no justification for drawing a line at this point. If article 2 does confer a right to self-determination in relation to life and death, and if a person were so gravely disabled as to be unable to perform any act whatever to cause his or her own death, it would necessarily follow in logic that such a person would have a right to be killed at the hands of a third party without giving any help to the third party and the state would be in breach of the convention if it were to interfere with the exercise of that right. No such right can possibly be derived from an article having the object already defined.

However, as A.C. Grayling has convincingly argued, the claim that Diane Pretty was making was not that one had a right to be dead, which Lord Justice Bingham apparently assumes to be her point, but that one has a right to have assistance in the act or process of dying, which is arguably a very different thing, and still an integral part of life; and that the right to life accordingly included a right to such assistance when life had become intolerable and the person wished to hasten her dying. However, for the present purposes this may be overlooked, since in fact Nicklinson did not dispute Lord Justice Bingham’s argument. Having not done so, Mr. Justice Charles was not disposed to allow Nicklinson to argue for his third declaration.

However, Mr. Justice Charles did allow the Claimant (Nicklinson) to seek two other declarations, namely:

1. A declaration that it would not be unlawful, on the grounds of necessity, for Mr Nicklinson’s GP, or another doctor, to terminate or assist the termination of Mr Nicklinson’s life.
2. Further or alternatively, a declaration that the current law of murder and/or of assisted suicide is incompatible with Mr Nicklinson’s 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.

Charles raises a number of issues in connexion with both these sought for declarations. As to the defence of necessity, the assumptions are allowed that, (a) Nicklinson’s suffering is intolerable, and (b) that he is competent to give an informed, autonomous decision with respect to his wish to die. An act of killing would not, at common law, be regarded as an act of murder only in cases where it could be shown “that it was done only in order to avoid consequences which could not otherwise be avoided,” as in a case of self-defence, or where conjoined twins could be separated only with the death of one of the twins. So far as suffering goes, according to Glanville Williams’ The Sanctity of Life and the Cimiinal Law, quoted by Mr. Justice Charles (para 10):

Neither the consent of the patient, nor the extremity of his suffering, nor the imminence of death by natural causes, nor all these factors taken together is a defence.

Williams goes on to say:

This, at any rate is always assumed by lawyers, though there is no case in which an argument that the concurrence of all three factors may present a defence has been actually advanced and decided.

Which is what the Defendant – the Ministry of Justice and others — in fact argued.

However, there is, as Mr. Justice Charles points out, Lord Justice Goff’s Rubicon, expressed in the case of Airedale N.H.S. Trust v Bland, which would amount of a development and/or a change in the common law, where Lord Goff expressed himself thus:

I must however stress, at this point, that the law draws a crucial distinction between cases in which a doctor decides not to provide, or to continue to provide, for his patient treatment or care which could or might prolong his life, and those in which he decides, for example by administering a lethal drug, actively to bring his patient’s life to an end. As I have already indicated, the former may be lawful, either because the doctor is giving effect to his patient’s wishes by withholding the treatment or care, or even in certain circumstances in which (on principles which I shall describe) the patient is incapacitated from stating whether or not he gives his consent. But it is not lawful for a doctor to administer a drug to his patient to bring about his death, even though that course is prompted by a humanitarian desire to end his suffering, however great that suffering may be: see Reg. v. Cox (unreported), 18 September 1992. So to act is to cross the Rubicon which runs between on the one hand the care of the living patient and on the other hand euthanasia – actively causing his death to avoid or to end his suffering. [my bolding; notice that Lord Goff does not recogise that portion of living which begins with the process of dying and ends wth death, arguably a serious lacuna in his argument. Lord Goff's Rubicon is narrower than he thinks it is, and the change that he envisages is much shaper and more immediate -- instead of life-dying-death, Lord Goff imagines an immediate transition life-death. But death, not being a part of life, is not something we can have a right to, but dying is in this respect different, since it is a part of life.]

But he also goes on to say, significantly:

It is true that the drawing of this distinction may lead to a charge of hypocrisy; because it can be asked why, if the doctor, by discontinuing treatment, is entitled in consequence to let his patient die, it should not be lawful to put him out of his misery straight away, in a more humane manner, by a lethal injection, rather than let him linger on in pain until he dies.

– and then he goes on to say that the law does not feel able to authorise euthanasia.

Now, this is the central point at law at which the question of euthanasia arises with greatest force. The distinction between withholding or terminating treatment so that a person will then die of “natural causes,” often called “passive euthanasia,” and actively hastening a person’s dying so that s/he will die more peacefully and with greater dignity is one that, though often made, does not in fact made an obvious moral distinction, and should not, for that reason, be held to make a significant legal distinction either. Whereas the pope, for instance, may think that the distinction is central to the notion of human dignity and the sanctity of life, there is reason to suppose that this is much less clear than the pope and those who are like-minded suppose. Thus Mr. Justice Charles suggests that in this case, ”the Claimant [Nicklinson] must and does accept that he is now inviting the court to cross the Rubicon described by Lord Goff.” (para 17) Indeed, he goes so far as to suggest, as I think is obvious, that:

The tragic circumstances of Mrs Pretty have a significant overlap with those of the Claimant, and they would have enabled her to run the arguments that the Claimant now wishes to advance.

Of course, one problem here consists in what is often called “judicial activism.” Do the courts have a right to act in respect to matters that Parliament deliberately avoided acting upon? Mr. Justice Charles, after quoting some authority for the courts acting in such instances, concludes (para 32, vii) that,

whilst in general it may be preferable for issues of broad social and moral policy to be determined by Parliament, the fact that they are hotly contested can be a factor in favour of the court intervening particularly if, as here, the suggested solution involves the participation of the courts on a case by case basis, as has been done in cases relating to patients who lack capacity and in the Conjoined Twins case

and further suggests that, in the case of a civil (as opposed to a criminal) court,

… if the Claimant convinces the civil court that the common law should be developed or changed in the way he seeks, the civil court would go on and make the declaration. [para 35]

And, while this does not in itself constitute such a conviction, it is a significant step towards recognising the right, at common law, to argue that assisting someone to die (in carefully described circumstances) may be defended by claiming a defence of necessity.

Mr. Justice Charles then goes on to argue in favour of Nicklinson seeking the second declaration — which to remind you, reads as follows:

Further or alternatively, a declaration that the current law of murder and/or of assisted suicide is incompatible with Mr Nicklinson’s 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.

I will spend less time on this, since this post is already getting overlong. But Mr. Justice Charles argues convincingly, in my view, that there is a plausible line of argument here with respect to the European Convention on Human Rights and the Human Rights Act 1998. Indeed, since Nicklinson had already accepted that if he obtains what he wants based on “the availability of a common law defence of necessity, the declaratory relief he seeks under the Human Rights Act is unnecessary.” (para 40) However, he does make it clear that the Defendant (the Ministry of Justice) is wrong in its arguments under several heads (para 44), and that the Claimant (Nicklinson) has “an arguable case in support of the declaration he seeks in respect of Article 8″ (of the European Convention), which reads:

1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

This right to respect for private life may activate a right to assistance to die, though the conditions under which this might happen is much more complicated, and might demand the participation of other levels of government than the arguments under the defence of necessity considered in respect of the first declaration, where the possbility of a development of the common law is argued as a reasonable possibility.

The judgment itself is of such importance to the argument for the right of those suffering from pain or extreme disability to assistance in dying at their request, that it seemed to me worthwhile to give it a closer reading than I usually give to legal text. Indeed, reading over Mr. Justice Charles’ judgment convinces me yet again how important the process of legal reasoning is to the project of reason itself. While all its bases are vested in the authority of past moral and legal principles and assessments, the process of arguing from authority while recognising possible lines of development is an important example of how reasoning can function in the absence of firm empirical evidence. It is arguable, I think, that this may apply to disciplines like theology as well, where forms of life have been unfolded in systematic ways, even though, at their heart, it is difficult to find points of empirical anchorage. Where theology goes most wrong, it seems to me, is in trying to find, in the present, points of anchorage in reality that must seem impossibly trite and insignificant in relation to the weight of tradition which it seeks to ground.  This is why theological enterprises such as Don Cupitt’s, which refuse this kind of superficial defence, are to be preferred to the supposed magisterium of the Roman Catholic Church which bases its claims in salvific and revelatory events supposed to have taken place in the first century and earlier. (It is only fair to add that I undertook this examination after having been reminded by Ophelia Benson of an earlier piece I wrote on a judgement by and British judge in a completely different case.)