Tony Nicklinson: the right to die?
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”.
Image courtesy of Twitter, @TonyNicklinson
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Marilyn Stowe is the senior partner in Stowe Family Law, which has offices in Yorkshire, Cheshire and London. With more than 30 years’ experience handling divorce cases and family law proceedings she is regarded as one of the most formidable and sought after divorce lawyers in the UK. In 2012, Marilyn became one of the first solicitors to qualify as a family law arbitrator.
All persons mentioned in the scenarios are fictitious: details have been deliberately changed in order to protect identities and other confidential circumstances of my clients. All advice and information on this blog including posts written by guest authors, is given only as a general guide to the operation of the law on the date of publication. Readers must place no reliance whatsoever on the content of this blog and must always obtain their own legal advice. Marilyn Stowe, Stowe Family Law LLP and guest authors accept no liability whatsoever arising as a result of reliance upon its content.
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