At first sight, any criticism of High Court judges not understanding neuroscience might seem absurd. They deal with complicated points of law, see whether the law has been correctly applied on the facts laid before them, irrespective of whether they agree with what parliament had intended at all. But look for a moment at Tony Nicklinson’s decision yesterday from the High Court.
The judgement correctly goes into the suicide legislation of the UK, and goes into whether the DPP’s guidance on assisted suicide is accessible and clear enough. The outcome is that the High Court have ruled that two men with locked-in-syndrome cannot be legally helped to die. Tony Nicklinson, 58, and a second man known as Martin, 47, mounted legal challenges in attempt to secure immunity from prosecution for any professional who helped them to die.
But look at how the judges did this. They make no reference to the actual detail of the exact diagnosis, “the locked in syndrome” – is it that all neurological conditions ‘all look the same’ to senior judges, whether this be meningitis, dementia, or stroke? Does it not matter what the precise nature of Tony Nicklinson’s is? Of course it does – it does matter what Tony Nicklinson can do, as well as cannot do. Anyone intelligent would have looked fairly at whether Tony Nicklinson is capable of making his own decisions. Did they look at the functionality of the frontal, temporal, parietal, or occipital lobes of the cerebral cortex in Tony Nicklinson, or are senior judges simply disinterested? It matters a huge detail for his autonomy, however. Under medical law, you cannot transfuse a Jehovah’s witnesss with blood, even if their life depends on it, if they have autonomy and withhold consent for a transfusion.
Does it matter that the judges do not consider in detail therefore what Tony Nicklinson’s capacity is? Of course it does – for Tony Nicklinson to make an independent decision about his future autonomously, we need to know what his capacity is from an expert opinion. The outcome has been very distressing for Tony Nicklinson, and nobody, not least the GMC, would wish to allow suffering of any patient in the UK.
The case yesterday laid bare the limitations of law. It is a dry subject based on precedent, and intellectual masturbation of important issues but sometimes peripheral issues. Nobody can deny that the validity in arriving at ratio to protect the disadvantaged and vulnerable, as discussed in Airedale regarding the importance of autonomy versus the state, but surely the distress of Tony Nicklinson is paramount? Yesterday’s legal decision was a clear two fingers at the latest cognitive neuroscience and medical expert evidence about decision-making in locked-in syndrome, and does not at all rest easy with the seminal work of Beauchamp and Childress in defining medical ethics in terms of autonomy, beneficence, non-maleficence and justice.
The failure of the legal and medical professions to take a holistic view of this difficult subject has directly failed the patient. With money and costs involved, Tony Nicklinson must be totally exasperated.
