Lincoln Lawyer: Hard cases make bad law

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— Sofia Lagergren is a solicitor at McKinnells in Lincoln, specialising in family law. She deals with issues concerning contact with and residence of children, divorce, civil partnership and financial issues following the breakdown of relationships.

To see Tony Nicklinson’s bitter tears of frustration on television when he was told that the Court of Appeal had refused his request to be assisted to die was to be reminded of the old legal adage that ‘hard cases make bad law’.

Tony’s case certainly is a hard one. In 2005, then aged 51, he was a successful businessman on a trip to Athens when he suffered a massive stroke. As a result he now has locked-in syndrome. This means he is paralysed from the neck down. Although his body is affected, his brain is not. He still has the same mental functions as he did before the stroke, so he is fully aware of his physical condition. He is able to communicate by blinking and can share his feelings with a supportive wife and daughters and with his legal team.

Put simply, Tony wants to die. He finds his life an absolute misery. But he does not have a terminal illness. Still only 58, he could live naturally for many years, each day being a torment to him. Were he physically able to do so, he would kill himself, although the irony is that were he physically able to do so he would not want to kill himself. To commit suicide, which is what he wants, he would need assistance. But to assist him would leave the person who helped him exposed to a charge of murder.

Tony took his case to the Court of Appeal. He asked for a declaration that any doctor who helped him to die would be immune from prosecution. His lawyers argued on two grounds, one that Tony’s continuing to live against his wishes breached his Human Rights, the other on the basis of necessity.

All three judges who heard the case rejected these arguments. Lord Justice Toulson said that the case was deeply moving, but the law on the matter is clear. Assisting a suicide is a criminal offence. The courts could not change the law. For that, Parliament would have to pass a new law.

Looking at the support for the court’s decision from representatives of the medical profession and pro-life groups, it is clear that this change is not going to happen. Had Tony’s request been granted it would, in their view, be creating ‘bad law’.

On the face of it, the decision is at odds with a 2002 case where Mrs. B, a tetraplegic, obtained a court order requiring doctors to turn off her life support machine. The crucial difference, though, is that Mrs. B was being kept artificially alive, whereas Tony Nicklinson wanted to be artificially assisted to die.

Tony Nicklinson intends to appeal the decision. It is difficult to see how the Supreme Court will be able to disagree with the Court of Appeal. To allow any form of assisted suicide would clearly be opposed by the majority. This case holds many moral and ethical dilemmas, notwithstanding sympathy in this particular case.

In the meantime, though, Tony Nicklinson weeps tears of frustration that he cannot himself commit suicide, which would not be a criminal offence, but no one can help him to do so because that would mean they committed a criminal offence. No one can doubt that this is truly a hard case. But is it bad law?

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