A a 58-year-old victim of locked-in syndrome has told the high court that a decision not to allow him to be helped to die would condemn him "to a 'life' of increasing misery".
Tony Nicklinson was a very active and outgoing man until a stroke in 2005 left him paralysed from the neck down and unable to speak. He communicates by blinking or limited head movement.
His wife, Jane, said as she arrived at the High Court in London that there can be "no happy endings" to the case, but there can be "a good" outcome – if the judges give legal protection to the doctor who agrees to end her husband's life.
If the court rejects Nicklinson's plea to die, he says, all he will have to look forward to is the hope that he will "acquire a life-threatening illness such as cancer".
"I need help in almost every aspect of my life," he explained in a letter read out by his lawyer. "I have no privacy or dignity left. I am fed up with my life and don't want to spend the next 20 years or so like this. I'm not depressed so do not need counselling. I have had over six years to think about my future and it does not look good. I … can expect no cure or improvement in my condition as my muscles and joints seize up through lack of use.
"Indeed, I can expect to dribble my way into old age. If I am lucky I will acquire a life-threatening illness such as cancer so that I can refuse treatment and say 'no' to those who would keep me alive against my will.
"By all means protect the vulnerable," he added. "By 'vulnerable' I mean those who cannot make decisions for themselves. Just don't include me. I am not vulnerable. I don't need help or protection from death or those who would help me. If the legal consequences were not so huge – ie life imprisonment – perhaps I could get someone to help me. As things stand, I can't get help."
During a four-day hearing Lord Justice Toulson, sitting with Mr Justice Royce and Mrs Justice Macur, will also hear arguments in a second landmark judicial review action brought by a man who suffered a stroke three years ago at the age of 43. The man, who cannot be named for legal reasons, is referred to as Martin or AM. He is unable to move, can communicate only by moving his eyes, requires constant care and is dependent on others for every aspect of his life.
Nicklinson's case is not the start of a "slippery slope, only the striking of a balance in law that better suits the values of modern Britain," argued his lawyer, Paul Bowen QC.
But in the absence of statutory regulation, Nicklinson is fighting for a common law of defence of necessity to be granted to doctors who help people to die after an order has been sought by the courts. At present, voluntary active euthanasia constitutes murder, and the sentence is life imprisonment.
The legal changes Nicklinson is asking for, would sit alongside the existing laws. They would only be sanctioned if a judge had agreed beforehand and was satisfied that the person is suffering from a medical condition that causes "unbearable suffering".
The judge would also need to be convinced that the patient had given a "a voluntary, clear, settled and informed wish to end his own life". Also that there are no alternative means available by which their suffering may be relieved.
"The law is anomalous and discriminatory. It fails to protect the very people it is intended to protect," argued Bowen, "It has not stopped the widespread practice of euthanasia but has forced it underground, where it is unregulated."
Nicklinson sent an email to his solicitor, asking if it was possible for the lawyer to "tell/remind the judges a few things".
His QC, Paul Bowen, read it out to the hearing, after saying that "in the final analysis, this is about one man and his right to choose".
The email said: "All this current activity making documentaries and writing articles has reminded me of how much I want my life to end. I know you said this hearing is all about the legal arguments but is it possible for you to tell/remind the judges a few things?
"I have wanted my life to end since 2007 so it is not a passing whim. I know consent makes no difference but the doctor has it anyway. Legal arguments are fine but they should not forget that a life is affected by the decision they come to; a decision going against me condemns me to a 'life' of increasing misery. I have no doubt that the judges have heard it all before but I simply wanted to get it off my chest."
In written arguments before the court David Perry QC, for the Ministry of Justice, opposed the attempt to change the current law, citing a 1993 case in which voluntary active ehthanasia was described by Lord Goff of Chieveley as an "act [that crosses] the Rubicon which runs between on the one hand the care of the living patient and on the other hand euthanasia – actively causing his death to avoid or to end his suffering. Euthanasia is not lawful at common law."
Perry said Nicklinson's "tragic and very distressing circumstances evoke the deepest sympathy", but that, "notwithstanding the distressing facts of his situation, the defendant submits that the claim for declarations is untenable. The law is well established". He said there was "no defence of necessity to a charge of murder or assisted suicide if a doctor were to terminate, or assist in the termination of, the claimant's life".
The case continues.
Source: www.guardian.co.uk
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