As the court rules on the Tony Nicklinson right to die case Yogi Amin looks at the implications of the judgment
The law on the sensitive and emotive issue of assisted suicide is very clear at present: physician-assisted suicide is unlawful. This brave attempt at changing the law requires some real public support before the law develops in this respect.
My thoughts are with the Nicklinson family as what they are going through must be a terribly hard situation to deal with. Having acted in cases like this before, I know how traumatic they are for the individual and their loving family, torn between not wanting to see their loved one suffer and not wanting to lose them.
Ultimately Tony Nicklinson seeks to have respect for his own personal choice but this requires a change in the law as it is currently illegal in the UK for doctors to help him die and he is asking for doctors carrying out the practice to be immune to prosecution.
If the law can change to respect an individual’s choice but at the same time provide safeguards through the courts to protect vulnerable people against abuse then those bold steps should be taken.
At the heart of this case is a man who feels that his suffering is so much that he would rather doctors were able to lawfully kill him, than live for 20 years more in his current situation.
It is a massively emotive, ethical issue and there will be supporters for both sides. Tony Nicklinson has made it clear that for him this is not about wanting to change the law but about ending what he calls his own ‘living nightmare’.
Previous cases involving right to die issues have differed because in those cases it was a situation where treatment would be stopped in order to allow a terminally ill person to die. In this case, action needs to be taken to pro-actively end Tony Nicklinson’s life as per his wishes.
This is a case that is part of a campaign to establish as being legal, voluntary physician assist suicide. Tony Nicklinson argues that the court authorising each case in advance would ensure proper scrutiny is given to safeguard individuals.
The pro-lifers argue that ‘sanctity of life’ as a principle should not be watered down and that to create an exemption in this case may lead to many other classes of cases seeking such an exemption.
This shines a light on the tensions that exist between judge-made law and parliament, both of which play a key role in our country’s unique constitution.
We have seen many cases where judges have helped the law evolve to protect the vulnerable in society, but in this case the judges stated that any changes in the law would need “the most carefully structured safeguards which only parliament can deliver”.
It is clear that there is still plenty to be decided on this law, but the courts have now made it clear that it is for parliament to decide the next steps.
Today’s ruling means that the status quo is maintained and although it may not offer the remedythat Tony Nicklinson and his family seeks, it offers clarity as to the court’s view on end-of-life cases.
The Canadian Supreme Court has recently found that a blanket ban on physician assisted suicide was ‘unconstitutional’. The tension between the legislature and the courts developing the law is plain to see.
In this country – one of them will need to act. Silence is no answer.
Yogi Amin is a partner in the public law team at Irwin Mitchell