If Tony Nicklinson had the ability, he would take his own life.
The father-of-two says his current existence, paralysed from the neck down and communicating through blinking, is intolerable. Without the physical capability, he will need someone to assist him, but the law will not grant immunity from prosecution for anyone who does.
Today’s High Court judgment reaffirms that law and states categorically that the court is not capable of changing it. But is that the end of the issue? I hope not - and neither, I suspect, do the judges who presided over this case. It’s important to note this case was never about Nicklinson’s right to die – it was about the court’s disposal to turn the other cheek.
Tomorrow’s newspaper headlines may suggest Nicklinson has ‘lost’ his case, but the issue is clearly not going to go away (not least because his lawyers plan to appeal). If Nicklinson’s family or medical staff decide to help him to die, what likelihood is there of prosecution in reality? The judgment itself says the risk of prosecution is likely to depend on circumstances, whilst the general public would surely be aghast at mandatory life sentences for anyone convicted.
This is an ethical and legal issue. Today’s judgment makes it clear that voluntary euthanasia is unlawful. But it makes no reference to the ethical debate that underpins this case – instead the baton has been passed to parliament to clarify this issue once and for all.
Lord Justice Toulson states that ‘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.’ This issue requires the will of parliament and, by implication, the will of the people. It requires debate, conviction, leadership and courage, though whether our current parliamentarians are capable is another matter.
It is impossible not to feel sympathy for Tony Nicklinson and his family as he suffers, by his own admission, a living nightmare. But it is for parliament, not the court, to put him out of his misery.
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