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Hard Cases, Great Cases: bad law

“This is one of those unfortunate cases...in which, it is, no doubt, a hardship upon the plaintiff to be without a remedy but by that consideration we ought not to be influenced. Hard cases, it has frequently been observed, are apt to introduce bad law.” Judge Robert Rolfe 1st Baron Cranworth in Winterbottom v Wright UK 1842.

“Great cases like hard cases make bad law. For great cases are called great, not by reason of their importance... but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment.” Oliver Wendell Holmes Jnr (Northern Securities Co. v. United States 1904)

The UK case of the plight of Locked-In suffer, Tony Nicklinson, who is seeking to ‘change the existing understanding of the common law’ on assisted suicide (effectively, murder) is by any rendering a hard case.

Nicklinson had a massive stroke in 2005 that has left him in a Locked-In state, unable to care for himself and paralysed, save for movement of his head and eyes.

He wants to be able to request assistance to die (at the hands of a doctor or his wife) and to know that those assisting him will not be prosecuted.

His wife, Jane, told a UK media outlet that, ‘We are asking for it to be legal for someone to end his life. The only way to relieve Tony’s suffering is to kill him.”

Nicklinson was given the go ahead by the British High Court to begin legal proceedings on two of the three grounds sought by Nicklinson’s counsel. Firstly, they are seeking a common law defence of necessity against a charge of murder and, secondly, they seek a declaration of Mr Nicklinson’s right to respect for private life under Article 8 of the European Convention on Human Rights.

This second declaration seems to assume that a fundamental right to die does exist. This proposition was also made in 2001 in the Diane Pretty case. Diane Pretty suffered Motor Neurone Disease and was seeking a pre-emptive immunity from prosecution for someone assisting in her death. The British High Court determined that Article 8 cannot be read to mean that a right to die exists. Pretty appealed to the House of Lords and then to the European Court of Human Rights, both institutions endorsed the original judgement.

In 2009, Debbie Purdy, an MS sufferer, sought through the courts to determine, in advance, whether her husband would face prosecution if he assisted in her death by taking her to Switzerland to end her life. Based also on Article 8 of the European Convention on Human Rights, the House of Lords found that there was a ‘right to know’ and instructed the Director of Public Prosecutions to issue a set of guiding principles upon which someone in Purdy’s husband’s position could refer to.

The first interim policy guidelines were issued in September 2009. The DPP, Keir Starmer QC, stressed, however, that, "There are no guarantees against prosecution ... it is my job to ensure that the most vulnerable people are protected, while at the same time giving enough information to those people like [Debbie] Purdy who want to be able to make informed decisions about what actions they may choose to take," he said.

"Assisting suicide has been a criminal offence for nearly 50 years and my interim policy does nothing to change that."

Perhaps so, but issuing guidelines which essentially bind in some way the DPP, rather than maintaining the usual case-by-case determinations based on evidence and other factors, have been seen by many as a defacto change in the law, bypassing the usual arbiter of changes to the law: the parliament. Rather than allowing the courts to temper justice with mercy, the DPP seems to be allowing mercy to tamper with justice.

“This is the third time we have had an attempt to legislate in this way in this Parliament.” said Lord Alton. “The medical bodies—the British Medical Association and the royal colleges—remain opposed to any change. They know it would change the medical profession irreversibly if doctors and nurses become destroyers of life rather than defenders. This marks the beginning of the creation of a death cult.”

Nicklinson’s situation is not expressly covered in the DPP guiding policy and hence, his legal action.  He is unable to swallow and any assistance to die, therefore, would not be a matter of co-operation (assisting in suicide) but rather, a direct action of a third party to bring about death (euthanasia or, under the law, murder).  He is essentially arguing that ‘the law of murder constitutes a disproportionate interference with his right to personal autonomy under Article 8.’ His action, taken by the same legal counsel as in the Purdy case, could conceivably see the DPP further directed to produce guidelines and policy on when an act of euthanasia would not be prosecuted.

Nicklinson, Purdie and Pretty are hard cases and, by Oliver Wendell Holmes’ definition, ‘great’ cases also.  That does not mean that they should be dismissed out of hand. However, we should be wary of allowing such highly emotive cases to influence our laws.

The prohibitions against both euthanasia and assisted suicide treat all citizens equally. Making exceptions for the hard cases while advantaging the very few, risks placing far more people at a decided risk of disadvantage. We would be implicitly suggesting that the lives of the sick or disabled are less worthy of the protection of the law than others. Even the chief executive of Dignity in Dying UK, Sarah Wootton said as much: “It would be impossible not to feel sympathy for Mr Nicklinson and his family...his right to control over his death must be balanced with concerns about the impact of legalising assisted suicide on potentially vulnerable groups.”

Will these ‘vulnerable groups’ be heard? And what about the individual sufferers of Locked-In syndrome, Motor Neurone Disease, Multiple Sclerosis or other disabilities who have a different story to tell; stories of courage, hope and the will to live?

Take for example the story of Bram Harrison who became ‘Locked-In’ after a cycling accident just prior to his 21st birthday.  Fourteen years later, Bram now runs a website and, under the name of DJ Eye Tech, runs his own radio music program.  "I've definitely not got the same view as Tony Nicklinson. I don't want people to think that locked-in syndrome is unbearable. I enjoy my rather limited life." said Harrison recently.  No doubt Harrison has experienced many of the same difficulties as Nicklinson but said that he’s never felt hopeless, adding: "I don't want my relatives to see Tony Nicklinson and think that's how I feel."

And isn’t that precisely the risk we run in such cases: that we come to assume that all Locked-In sufferers, all MS and MND sufferers all suffer the same and all feel the same way?

And aren’t we being also asked to make assumptions about spouses or friends who assist in the suicides of loved ones where they face the scrutiny of our laws?  Those pushing for law reform would most certainly want us to think but one thought in respect to all of these issues: that a compassionate society should accept that what they did was motivated not by personal gain but by compassion itself and that the law needs to change because the law currently condemns them.

But we are neither law makers nor the enforcers of the law.  We rarely know the full facts and are therefore incapable of making a right judgment based on these facts.  None of us, I venture, would be willing to be judged in a grave matter by the court of public opinion.  It’s fickle and far too easily influenced by the media and editorial policy to be considered to be fair and objective.

Better by far that we leave such matters to the courts that are charged both with upholding the law and dispensing both justice and mercy.  The law is not the problem here; the problem is with those who would use, wittingly or otherwise, difficult and emotive cases to pursue their larger agenda.

The Nicklinson case is, as Allison Pearson from the UK Telegraph describes it, a landmark case.  ‘Landmark’ may not always be a synonym for ‘hard’ or ‘great’, but undertones of the stench of judicial activism can nonetheless be detected in Pearson’s comments:

“Nicklinson’s desire to change the law of the land so he can be killed in the comfort of his home is wrong.  Others suffer as he does – Professor Stephen Hawking comes to mind – but they make the best of the dreadful hand that fate has dealt them.  Tony Nicklinson could refuse food, but his wife objects that starvation is a horrible way to die.  Yet isn’t Tony Nicklinson’s argument that his life is too horrible to live?

“If Mr Nicklinson gets a serious infection, highly likely for someone in his condition, then, without antibiotics, he will soon get the merciful release he seeks.

“But that isn’t enough.  He wants a landmark case.  “I’m not vulnerable.  I don’t need help or protection from death or from those who would help me,” says Tony Nicklinson.  This summer, at a five-day hearing, he will argue for a drastic change in the law on murder, for death on demand.  If he wins, any doctor who kills a profoundly disabled person can say: “But he wanted me to end his life, your Honour.

“Does that sound like a good defence to you?” 

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