Friday, 17 August 2012

Empathy for the Poor Devil

UPDATE 22/8/12: Today Tony Nicklinson died. My thoughts are with his family and friends.

The High Court in Britain yesterday refused Tony Nicklinson and 'Martin' the means to end their lives without causing another to commit a crime. The judgement of Lord Justice Toulson concludes:

Tony’s and Martin’s circumstances are deeply moving. Their desire to have control over the ending of their lives demands the most careful and sympathetic consideration, but there are also other important issues to consider. A decision to allow their claims would have consequences far beyond the present cases. To do as Tony wants, the court would be making a major change in the law. To do as Martin wants, the court would be compelling the DPP to go beyond his established legal role.These are not things which the court should do. It is not for the court to decide whether the law about assisted dying should be changed and, if so, what safeguards should be put in place. Under our system of government these are matters for Parliament to decide, representing society as a whole, after Parliamentary scrutiny,and not for the court on the facts of an individual case or cases. For those reasons I would refuse these applications for judicial review.
Well, I have some sympathy with this: Parliament should be sorting this out. But gone are the days, it seems, when judges like Lord Denning made ground breaking but eminently sensible changes to common law. No doubt, though, that assisted dying has more import than obscure civil law. Mr Justice Royce agrees with Toulson:
Any change [to the law] would need the most carefully structured safeguards which only Parliament can deliver.
As does Mrs Justice Macur:
However, Mr Bowen QC does not succeed in persuading me that this process may reassure society that the development of common law for which he contends is merited by separate consideration of individual circumstances by individual tribunals of whatever stature and experience. The issues raised by Tony and Martin’s case are conspicuously matters which must be adjudicated upon by Parliament and not Judges or the DPP as unelected officers of state.

In his submission to the Court Tony wrote:
My life can be summed up as dull, miserable, demeaning, undignified and intolerable. …it is misery created by the accumulation of lots of things which are minor in themselves but, taken together, ruin what’s left of my life. Things like…constant dribbling; having to be hoisted everywhere; loss of independence, …particularly toileting and washing, in fact all bodily functions (by far the hardest thing to get used to); having to forgo favourite foods; … having to wait until 10.30 to go to the toilet…in extreme circumstances I have gone in the chair, and have sat there until the carers arrived at the normal time.
He is prepared to starve himself to death to end the tortured state in which he finds himself. His state, to remind everyone, is not of the terminally ill, but of the terminally locked-in. He faces up to half a century of this 'life' which he would rather not; or, at least, he would like the freedom to decide when he has had enough. We currently impose this sentence on some, because as a society we worry about the consequences of letting a very few people, like him, do what they want. The argument goes, it seems, that by allowing folk of right mind to determine their own destiny, we will allow an avalanche of abuse against certain folk who are not of right mind. Tony has to suffer in this real world for the putative premature termination of the lives of others. But individual autonomy, which is the goal of choice in dying advocates, empowers even those who think they would be at risk from such legislation.

Even if we were to allow this dubious premise, balancing current lives and future ones is notoriously difficult.  I'm currently reading Derek Parfit's Reasons and Persons which explores in excruciating detail a number of these questions for their moral implications, and I'm still not entirely clear what I think. However, I do not see how anyone, outside of those with religious reasons, could fail to support Tony in his quest. Most people appear to agree with me; apparently opinion polls have consistently shown a high percentage in favour of the right to die. Today's Independent leader says:
Few lawyers expect him to succeed. But concern at the dangers of a new precedent must come second to the inhumanity of condemning a person to so intolerable an existence. Mr Nicklinson must be allowed to make his choice.
However, the Daily Mail's Steve Doughty begs to differ, and bizarrely seems to suggest that a continuation of the campaign is good for Tony:

He can communicate by blinking at letters held up by his wife Jane on a perspex board. He has an eye-blink word processor he describes as ‘a ray of sunshine on an otherwise bleak horizon’. He is writing his memoirs.

I should make it clear that I do not for a moment doubt Mr Nicklinson’s sincerity or his determination to end his own suffering. But it seems that what may be keeping him going, for now, despite affliction that would crush most others, is his campaign for the right to be killed.
Many have this idea that simple existence itself is an unalloyed good (often fuelled by religious doctrine). But we can see clearly that it is the right thing to put a family pet out of its misery when there is no quality of life to be had. Without defending some form of human exceptionalism, we should conclude the same for people in Tony's position. Now, I suppose, if I'm reading Steve Doughty charitably, he is suggesting that maybe humans are unique in having an inner mental life of contemplation, and that that life is worth living. Well perhaps, but just as the physical life can become unbearable, so too the mental life, and it can become even more unbearable for humans because of their inner mental life of contemplation. The decision to end it should still be Tony's to make, just as somebody able-bodied is free to make it.

How can we stand back and allow Tony to be treated like this? As Polly Toynbee writes:
Of all the various harms religions can do, their successful opposition to the right to a peaceful death is one of the most pernicious. Tony Nicklinson asks this: "The next stroke could affect you. Would you be happy to end up like me?"
If anything makes us human it's surely a deep empathy for his position. To see somebody suffering now demands our action.

Support Tony here.


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