A MAN with “locked-in syndrome” who wants his “suffering to end” has urged a judge not to reach a decision that would halt his High Court action seeking a ruling to allow a doctor to ‘lawfully’ end his life.
Severely disabled Tony Nicklinson’s barrister presented arguments to Mr Justice Charles, sitting in London yesterday, on why his case should be allowed to proceed.
The judge is being asked to rule on an application by the Ministry of Justice that it should be “struck out”.
Mr Nicklinson, 57, who is married with two grown-up daughters and lives in Melksham, in Wiltshire, wants a doctor to be able to “lawfully” end his life, which he sums up as “dull, miserable, demeaning, undignified and intolerable”.
He began legal action seeking court declarations a doctor could intervene to end his “indignity” and have a “common law defence of necessity” against any murder charge.
Contesting the strike-out bid yesterday, Paul Bowen, for Mr Nicklinson – who suffered a stroke in 2005 – said the Ministry of Justice had not advanced any arguments which were a sufficient “knock-out blow” to justify striking out of the action.
Instead, he said, the Ministry of Justice submitted that “necessity can never afford a defence to a charge of murder” but he argued the MoJ “cannot establish on the balance of probabilities” that his client’s case “has no real prospects of success”.
Mr Bowen said Mr Nicklinson’s case was that “an act of euthanasia or assisted suicide” was the only means “by which his suffering may be brought to an end and his fundamental common law rights of autonomy and dignity may be vindicated”.
He told the judge Mr Nicklinson’s “invocation of the defence of necessity rests, in large part, upon the submission that the defence is necessary to allow his suffering to end and to give effect to his fundamental common law rights of autonomy and dignity”.
Mr Nicklinson, who communicates through the use of a perspex board or by using an Eye-Blink computer, is seeking declarations that it is lawful for a doctor to terminate his life, with his consent and with him making the decision with full mental capacity.
Mr Bowen said the “courts have never considered directly the question arising in this case where voluntary active euthanasia is the issue”. At a recent hearing, David Perry QC, representing the MoJ, said Mr Nicklinson “is saying the court should positively authorise and permit as lawful the deliberate taking of his life”. He added: “That is not, and cannot be, the law of England and Wales unless Parliament were to say otherwise.”
No matter how tragic the circumstances or situation, it was not a reason for “distorting the settled law”. It could only be Parliament “who could properly put into place a system with appropriate safeguards and conditions, not the courts taking this on a case by case basis”.
Mr Bowen said there was no bar to the courts dealing with such cases. He told the judge: “The legislation of medically assisted dying is one area where there may be considerable advantages to a gradual, step-by-step development of the common law rather than the all or nothing approach of legislation.”
Counsel added: “The court can extend the common law defence of necessity to the circumstances of the present case – an act of voluntary active euthanasia or assisted suicide of a competent adult – while stipulating that the application of the defence in other contexts will have to await the particular facts of a particular case.
“The court can lay down safeguards that must be observed if the doctor’s actions are to be considered ‘necessary and proportionate’, including a requirement that in specified cases (or all cases) prior authorisation from a court will be necessary for that test to be satisfied.”
The judge is expected to reserve his decision until a later date.