A right to die?

Readers will be aware that the High Court is currently hearing the case of Mr Tony Nicklinson. Mr Nicklinson, who is paralysed with locked-in syndrome after a stroke wants, in his own words reported by the BBC, an “amendment to the murder law to make it lawful in certain circumstances for one person to take another’s life (euthanasia) and [this] is the substance of my imminent court hearing”. For the earlier proceedings see Nicklinson v Ministry of Justice & Ors [2012] EWHC 304 (QB) (12 March 2012).

The case, Nicklinson, R (on the application of) v Ministry of Justice, is being heard by Toulson LJ and Royce and Macur JJ together with another – AM, R (on the application of) v DPP – in which the claimant, known only as “Martin”, is challenging the DPP’s policy on assisted suicide which, he argues, is insufficiently clear and fails to have regard to someone in his position. “Martin” is not requesting a change in the law but is asking that the DPP amend the current guidance so that medical staff would not face criminal and/or disciplinary action if they helped him to end his life.

This comes hard on the heels of another case with very different facts but which poses a rather similar question: does an intelligent, articulate adult have the right to refuse life-saving medical treatment?

In Re E (Medical treatment: Anorexia) [2012] EWHC 1639 (COP) (15 June 2012), Peter Jackson J, in the Court of Protection, held that E, a 32-year-old woman who suffers from extremely severe anorexia nervosa, lacked capacity to make a decision about life-sustaining treatment and declared that it was in her best interests to be fed against her wishes. His decision is worth quoting at some length. He accepted that the views of E, an intelligent and articulate woman were entitled to high respect. Regard also had to be given to the fact that the application was being brought very late in the day. Nor did he accept the proposition that one could only be certain about E’s best interests if every possible solution had been tried and shown to fail because, if taken too far, that line of argument carried the risk of discrimination against incapacitated persons by depriving them of options available to those with capacity. He also acknowledged the significant risks involved in treatment – not excepting a risk to life – and the modest prospects of success. Nevertheless:

“137. Against them, I place E’s life in the other scale. We only live once – we are born once and we die once – and the difference between life and death is the biggest difference we know. E is a special person, whose life is of value. She does not see it that way now, but she may in future.

138. I would not overrule her wishes if further treatment was futile, but it is not. Although extremely burdensome to E, there is a possibility that it will succeed. Services and funding will now be provided that were not available before, and it would not be right to turn down the final chance of helping this very vulnerable young woman. I accept that the nature of the treatment is different to anything E has previously been offered, and I am reassured, rather than discouraged, by the realistic outlook of Dr M.

139. I am also influenced by the fact that those who know E best are not in outright opposition to treatment taking place, however sceptical they justifiably feel.

140. The competing factors are, in my judgment, almost exactly in equilibrium, but having considered them as carefully as I am able, I find that the balance tips slowly but unmistakably in the direction of life-preserving treatment. In the end, the presumption in favour of the preservation of life is not displaced.

141. I declare that E lacks capacity to make decisions about life-sustaining treatment, and that it is lawful and in her best interests for her to be fed, forcibly if necessary. I find that the resulting interference with E’s rights under Articles 8 and 3 is proportionate and necessary in order to protect her right to life under Article 2.”

For a longer and more detailed analysis of Re E, see Richard Mumford: Judge orders that anorexic woman can be force-fed on the UK Human Rights Blog.

Comment: How the cases of Mr Nicklinson and “Martin” are resolved remains to be seen; however, the judgment in Re E both illustrates the extraordinary difficulties that judges face in such cases and – perhaps – an innate tendency to come down on preserving life when other considerations are finely balanced. This is obviously not a “religious” issue but, rather, one of common humanity. But it is an issue of intense importance to people of all religious persuasions – who, it must be said, will not necessarily all be of one mind on the matter.

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