Assisted dying: simple, neat – and wrong

At first, Tony Nicklinson’s case seems obvious. Having suffered a massive stroke in 2005, Nicklinson – a former civil engineer who once enjoyed an active lifestyle – was left almost completely paralysed, in a state referred to as ‘locked-in syndrome’. He can only communicate by blinking or using limited head movement. He refers to his life now as ‘dull, miserable, demeaning, undignified and intolerable’. Nicklinson would like the courts to offer immunity from prosecution if, in the future, he asked a doctor to kill him. Last week, the High Court in London ruled against his request.

As many observers agreed, it is his life and who are we – or the courts or parliament – to tell him what to do with it? We all have the right to commit suicide but those with locked-in syndrome need assistance. Nicklinson is quite visibly suffering and has been consistent in his wish to die, so why not allow him to do so?

The three High Court judges who rendered the decision against Nicklinson rather passed the buck. According to Lord Justice Toulson: ‘These are matters for parliament to decide.’ But the judges were correct in doing so, and there is far more to this issue than meets the eye.

‘Martin’, a 47-year-old man who similarly suffers from locked-in syndrome, was the second case rejected by the courts. He sought a more modest clarification of the guidelines: if he were to starve himself to death, what easement of pain could doctors give without fear of the law? Would they be prosecuted if they failed to section him under the Mental Health Act so as to force-feed him? Or if they help get him to Dignitas, the Swiss assisted-dying group?

Martin asked the better questions, but it was Nicklinson who commanded attention because of the apparent simplicity of his case. One editorial certainly agreed with the essential straightforwardness of the case, as did most in the blogosphere. ‘Such a right’, the editorial thundered about the right to exercise autonomy over one’s life, ‘forms the basis of liberal thinking’. It added that ‘it cannot be beyond the realms of feasibility for parliament to enshrine a law with sufficiently high safeguards that would protect the vulnerable’. This echoed Nicklinson’s own argument that ‘intelligent people who can work out how the universe began’ should be able ‘to devise a few simple rules so that those who need protection get it while those like me get assistance’.

Of course, no one can fail to sympathise with Tony Nicklinson’s plight. The post-verdict pictures of him crying – one of the few expressions of emotion he can still express unaided – showed his genuine distress at hearing the court’s decision. But that should not prevent us from asking questions about what he is asking for. As the US columnist HL Mencken correctly surmised nearly a century ago: ‘For every human problem there is a solution which is simple, neat and wrong.’

It is not simply unwillingness to confront the issue of death or a cabal of religious zealots that prevent Nicklinson’s suggestions from being adopted. There are complex issues to be addressed and legitimate questions to be asked.

One of the often-stated difficulties is that the legislative proposals currently being put forward by the mainstream pro-assisted suicide organisations would not allow Tony Nicklinson to die. All legislative proposals in this country follow the pattern adopted in the US states of Oregon and Washington in that the patient must be dying of a terminal illness and have less than six (though some call for 12) months to live. Nicklinson could easily live for another 25 years.

Such a problem did not escape the attention of Lord Falconer, the veteran assisted-suicide campaigner and head of the Commission on Assisted Dying. Opposing Nicklinson’s court bid, he noted, ‘it is a step too far for the law to allow one person to kill another because the person wants to die… The dangers of allowing the law to take that stance are greater than any benefits.’

As Falconer points out, what Nicklinson calls for is euthanasia – to be killed by another person – rather than the right to suicide. None of the current legislative proposals in this country call for legalisation of euthanasia and even those that shy away from the term ‘assisted suicide’ in favour of the gentler but more comprehensive ‘assisted dying’ know that what they call for is the right to be helped to commit suicide. If we allowed persons to be killed by others just because they wanted to die, it would be difficult to deny Armin Miewes, the German cannibal convicted of killing and eating another (willing) man, the right to satisfy his fetish.

And here is a problem that haunts all proposals for legalising assisted suicide. Do we allow all who wish to terminate their lives, for whatever reason, to do so? If not, how do we decide? In some ways, Nicklinson’s suggestion – that all cases be judged by the courts individually – is better than the assisted-suicide legislative proposals, in that it does not set a precedent whereby physical criteria determine whether a life is worthy of protection or not. Such an arbitrary line of six or 12 months is patronising to those with seven (or 13) months to live, and it devalues the lives of those who fit the physical criteria by essentially saying that their lives are not worth saving. But Nicklinson, after all, is requesting permission to die from the courts. As the case of E, an anorexic woman who wished to die, so horribly demonstrated earlier this year, it is dangerous to give the courts the power over life and death.

So, the devil is in the details when it comes to legislative proposals. And though the example of Oregon shows that the horror stories told by some opponents of assisted suicide are largely imaginary, there is no denying that some lives are clearly more equal than others in such a society.

We might also ask, is this really about rights, as some newspapers so sententiously argued? The framers of the 1961 Suicide Act, which decriminalised suicide, were careful to stress that the legislation did not signal approval of the act of suicide. Rather, it sought to free relatives of successful suicides from shame and further misery and those who attempted suicide from inappropriate and ineffective prison sentences. The US Supreme Court also rejected the idea of a ‘right’ to suicide in the 1990s.

But we might also ask: what is it that Nicklinson and others who campaign for a right to die want? If Nicklinson was truly determined to die, he has the means to do so. He may refuse food and water which, though unpleasant, would kill him within two weeks (though here, Martin’s questions are relevant). He has also been promised the necessary funds to fly to the Dignitas clinic in Switzerland by a benefactor. He has rejected both these possibilities.

Instead, it is all about finding the right moment to die. Campaigners want certitude rather than an immediate end to their lives. Nicklinson has said he does not want to grow old with his condition. But when is the right moment to depart? When is a life complete, all business finished, nothing more to do or give, no more goodbyes or regrets to express? I expect that no one reading this, nor even Nicklinson, knows the answer to those questions.

Nicklinson is a campaigner and, as a perceptive article noted, his campaign resonates with verve and pathos – these very emotions of human life. Even suffering with what must be a horrific condition, he speaks to the world. Does he really want to die or does he wish to achieve his campaign goals? Will he, like campaigners for the right to die such as Annie Lindsell and Dr Timothy Leary, die a natural death? I think Nicklinson wishes to live, to continue, ironically, campaigning for the right to die.

Rather than a simple, neat and wrong solution being steamrollered through, we must ask the difficult questions. Not the ponderous questions about what death is or when is the right moment to die, but questions about what the campaign for the right to die really wants and how it means to get it. When phrases like ‘unanswerable case’ and ‘simple justice’ are thrown about, it is right to muddy the waters.

Kevin Yuill is author of Assisted Suicide: the Liberal, Humanist Case against Legalisation, which will be published by Palgrave MacMillan early in 2013.