The Tony Nicklinson Judgment

[A shorter version of this appeared in reply to a BMJ blog post at http://t.co/rIQHvTOq on 20th August 2012]

Unfortunately, for those of us who support a change in the law, Tony Nicklinson’s case has not advanced the argument very far. I was saddened to see Lord Falconer disagree, albeit sympathetically, with Jane Nicklinson when the two of them were interviewed on Channel 4 news. He did not support TN’s campaign. Why?

 

TN’s ambition in seeking legal protection from prosecution for whichever inidividual agreed to kill him was not representative of the AD movement’s aims. There are two reasons for this, as I understand them.

1) He is not terminally ill. AD legislation would be reserved for those who are dying rather than the severely disabled.

2) He requires more than ‘assistance’ – he is helpless, and needs someone to physically end his life rather than, say, provide a lethal cocktail and arrange it in such a way as to allow him, by his own action, to ingest it.

 

Hence, AD advocates such as Dignity in Dying and Lord Falconer have not put their full weight behind him. Redefining murder law was always an unlikely result. It is perhaps understandable that AD advocates have kept their powder dry in TN’s case, for realistic goals must be set by those wishing to change the law.

 

The differences between TN and a dying patient are, to my mind, slight, almost semantic. He has suffered what might be described as a social death (a term used in persistent vegetative state literature); he cannot function in society as he would wish. He interacts, yes, and is not as locked in as some have been. But he has decided that his social death should be met by his physical death. Nature will not help him, unless he contracts pneumonia and refuses treatment. He will not starve himself unless he really has to…and that outcome will be a terrible reflection on our society.

 

So why do I use the word semantic? Because the word being used to describe his possible death is ‘murder’, whereas the word used to describe the death of say, Diane Pretty (an MS sufferer) is suicide. This is because TN cannot activate a mechanism, but DP can. It is a question of neurological continuity and muscular power. A flick of the finger. An ounce of pressure on a button. The difference between murder and suicide.

 

There is a huge bioethical problem here. Imagine a patient who is becoming progressively weaker, day by day. Imagine AD has been legalised. Her case has been scrutinised, she has passed each medical and legal hurdle…separate doctors have vouched for her sanity, her consistent approach, the absence of treatable depression, the lack of family coercion…and she succeeds in finding a doctor who will help her. The arrangements are made. A lethal cocktail will be attached to her feeding tube, and when she presses the button a motorised syringe will squeeze the liquid into her stomach. She deteriorates, and loses the power of her fingertips and hands. She cannot activate the machine. She falls outside the legal framework. Now, in a more extreme state of illness and weakness, she is barred from ending her own life. This is a paradox. Because the definition flips from suicide to murder, everything changes.

 

I understand the stoney-faced legal attitude. Law is not there to cater for ‘hard cases’. It must protect the majority from abuse. So how do we move on?  Most would accept that TN’s situation is intolerable, not only for him but for right-thinking, humane observers. How do we allow him to be ‘murdered’ (a terrible word but to avoid it seems evasive) in a controlled, painless, legal way? There must be a route to individual legislation that does not permit legal precedent by which villainous individuals are allowed to murder sick relatives and then argue that it was their wish to be killed. The law cannot be that blunt.

 

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