Euthanasia and Human Rights

Tony Nicklinson is 58, and suffers from locked-in syndrome. His mind is as sharp as it ever was, but for the last seven years, as the result of a stroke, he has been entirely physically dependent on others, able to move only his eyes and eyelids. Just recently, his condition has worsened, and he is in constant pain and discomfort. As seems entirely reasonable, he wants to die. But of course he will need assistance to do so, and anyone who helps him will run the risk of prosecution for murder.

Nicklinson, along with another man in a similar position, recently applied to the High Court. Their lawyers had two main arguments. The first was that the ‘necessity’ defence for murder in the common law should be extended to cover cases such as Nicklinson’s, since forcing him to continue to live is not a reasonable option. They argued also that taking that option would violate his right under article 8 of the European Convention, contrary to s1 and 6 of the Human Rights Act 1998. That article provides that:

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.

Nicklinson’s lawyers argued that forcing him to continue to live violates his autonomy and dignity and is therefore a violation of Article 8.

The High Court decided (see paras. 75-87) to allow Nicklinson’s torment to continue, primarily because it believed that, as was claimed in the earlier cases of Bland and Inglis, it is for Parliament to decide whether to change the law on euthanasia: the issues are too complicated and opinions too varied for the court to be competent to make a decision; any change would be controversial and so a matter for Parliament; and it might also lead to bad consequences, such as pressure’s being put on the vulnerable to end their lives.

These seem to me somewhat weak arguments. The issues are in fact quite clear, and it is not the job of a court to seek to enforce any public opinion, even majority opinion (if it were, the death penalty would have to be reintroduced for child-killers). It is true that any change would be controversial, and certainly it is an issue that Parliament should discuss (and surely would have done, were Nicklinson’s request to have been granted). But the job of the court was to decide whether Nicklinson’s human rights are being violated and to let Parliament deal with the wider issues. Finally, the judgement says nothing about how the Justices assessed the consequences of acceding to Nicklinson’s request. Certainly, leaving things as they are will lead to some very bad consequences, for Nicklinson and others in his position. Nor do courts usually take what are almost certainly very small risks into account when deciding matters of law. It is not the role of a court to consider such consequentialist factors when making its decisions. That is a matter for those making the law, not those executing it, as H.L.A. Hart and John Rawls demonstrated clearly many years ago. Of course, were voluntary euthanasia to be made legal, there would be need for a proper procedure to ensure informed consent. And it would be be the role of Parliament to develop such a procedure, once the Court’s decision had been passed down.

Para. 19 of the judgement says:

The common law is declared by the courts, which have the power to develop it. Section 6(1) makes it unlawful for a public authority to act in a way which is incompatible with a Convention right.

Since it is so plausible that there is a serious violation of human rights in forcing a citizen to undergo serious pain and discomfort, perhaps for many years, on the basis of an unsubstantiated claim about minor risk to others which could anyway be dealt with by Parliament, it seems likewise plausible that the High Court has acted unlawfully in this case. What makes things even worse is that its decision provides yet another precedent on which further inhumane and unjust decisions may be based in the future.

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6 Responses to Euthanasia and Human Rights

  • Anthony Drinkwater says:

    Thank you for this post, Roger.
    I am not at all qualified to comment on the legal interpretation High Court made, but I am sure that ethically it is a bad judgement. Mr Nicklinson is by all accounts a full normative agent : free, informed and competent. The only thing he lacks is the capacity to act. Refusing to allow someone else to act for him  is an exercise in cynicism : «you have the right to suicide, of course, but we allow nothing to help you exercise that right».
    (This argument is based on those employed by JP Griffin in «On Human Rights» – I hope I’ve not done him an injustice.)

  • Wayne Yuen says:

    Just to play devil’s advocate, how would we write a law that would be able to reasonably differentiate between someone who was simply depressed and suicidal vs. someone like Nicklinson who clearly would benefit from euthanasia? Its easy to side with Nicklinson on intuition, but its harder to craft policy that would ensure a reasonable distinction between the two cases.

    • Charles Norrie says:

      Why look at the situation so negatively. the fact that Mr Nicklinson has just died makes it obvious that his case was not marginal. Virtually all men of 58 have not experienced locked in syndrome. At least Mr N was in a position that he could try to get his acse argued. there must be some who can’t.

      What about them?

  • Roger Crisp says:

    Thanks, both. Anthony, naturally I agree! I can’t myself see how one can entirely divorce ethics from human rights law. Deciding what counts as a violation of a human right (at present at least — it may be that in time the law itself will provide enough guidance) involves ethical judgement. And as you rightly say, these Justices got it wrong, just as their colleagues have done in the past. I’m sure JPG would agree. I think you’re quite right to raise the issue about the law, Wayne, though one of my points was that this is a separate issue, and not one for the court. For a start, we might restrict voluntary euthanasia to cases in which suicide wasn’t an option. And of course one might require evidence from psychiatrists about competence, informed consent, and so on. At present, the attitude of lawyers is like that of someone who thinks that, because any particular speed limit is somewhat arbitrary, no one should be allowed to drive. What I’m suggesting is that, in a world in which no one can drive, we might start by allowing people to do so, at 3 m.p.h. with a person waving a red flag in front of them. And we can take it from there.

  • Lesley Brown says:

    Thank you for the article, Roger, and for the link to the legal judgement.
    I note that para 84 says : ‘A decision by the court to alter the common law so as to create a defence to murder in the case of active voluntary euthanasia would be to introduce a major change in an area where there are strongly held conflicting views, where Parliament has rejected attempts to introduce such a change, and where the result would be to create uncertainty rather than certainty. To do so would be to usurp the role of Parliament.’
    And yet in the previous paragraph they note that in 1992 the courts were willing to make an important change to the law concerning rape, by upholding a conviction for marital rape and rejecting an earlier doctrine (of ‘implied consent’) that had made conviction for marital rape impossible. What’s more, Parliament had earlier rejected attempts to make that very change, indicating that there were indeed strongly held conflicting views on that matter. The courts surely did the right thing in 1992.

    I know you argued that a court decision in Nicklinson’s favour would not in itself be a change in the law, but would require Parliament to take steps to make such a change. If so, that’s more reason why the action the courts rightly took over marital rape, in the face of Parliamentary inaction, should have inspired the judges in this case to be bolder.

    I write this as we learn of Tony Nicklinson’s death from self-starvation.

    • Roger Crisp says:

      Thanks, Lesley. That’s an excellent point. My guess is that it wouldn’t take long in Hansard to dig out the claim that these are matters for the courts and not Parliament!