Diane Pretty - the case for her right to choose

Mrs Diane Pretty is dying from Motor Neurone Disease, an incurable, progressive and increasingly distressing illness which has already paralysed her while leaving her mind clear. AC Grayling helped Mrs Pretty's barristers with some of the ethical and human rights aspects of her case. He here explains why the High Court was wrong not to allow Mrs Pretty to choose when and how to die.

Few readers of this newspaper are now unaware of Mrs Diane Pretty's tragic plight. Already paralysed and confined to a wheelchair, scarcely able to speak, and fed through a tube, the prospect that lies before her is progressive suffocation as her breathing and swallowing muscles fail. Yet her mind remains crystal clear.

Because of this, Mrs Pretty wishes to die before her illness becomes intolerable. She wishes to die with her family around her, at home, in a manner and at a time of her own choosing. If she could move just one arm, she could lawfully commit suicide. But she cannot move; everything now has to be done for her. That means she cannot carry out her desire to die unless someone helps her. What she wanted from the High Court was, in effect, permission to get that help from her husband. The High Court refused.

In rejecting Mrs Pretty's case the three High Court judges were chiefly persuaded by technical arguments about the scope of the Director of Public Prosecution's powers. Mrs Pretty had asked the Director of Public Prosecution (DPP) to give an undertaking not to prosecute her husband if he helped her to commit suicide. The request was necessary because although the 1961 Suicide Act makes suicide lawful, it left a blanket prohibition on helping someone else to commit suicide, making such an act a crime punishable by up to fourteen years in prison. Saying that he could not give an advance undertaking not to prosecute Mr Pretty, the DPP thereby refused Mrs Pretty's request.

Until recently that would have been the end of the matter. But last year the Human Rights Act came into force in England and Wales, incorporating the European Convention on Human Rights into domestic law. One of the Act's key features is that it imposes an obligation on public bodies and officials to act in ways that respect the provisions of the Convention. Assisted by the human rights organisation Liberty through its solicitor Mona Arshi, Mrs Pretty applied to the High Court on the grounds that the DPP's decision violated her Convention rights. This is the first time that a major human rights issue has been considered in our courts since the Act came into effect.

Although the judges were mainly swayed by considerations about the DPP's role, they also examined the human rights arguments put forward by her barristers, Philip Havers QC and Fenella Morris. Apart from the tragic dilemma in which the judges left Mrs Pretty, this aspect of their decision is deeply troubling; for in their comments they placed the narrowest, most conservative and illiberal construction possible on the Convention rights. This is serious, for unless the House of Lords takes a more generous view of the intentions which lie behind not just the Convention but the very idea of human rights, the decision of these three judges will set a precedent which will retard the human rights cause for decades.

Mrs Pretty's lawyers based their arguments on the most important rights in the Convention: the right to life, the right to be protected from inhumane treatment, and the rights to privacy and freedom of thought and belief. They argued that these rights give Mrs Pretty the right to choose when and how to die. The grounds they put forward were, first, that a right to life includes a right to die; second, that if Mrs Pretty is denied the chance to end her life before it becomes intolerable she would in effect thereby be subject to inhumane treatment; and third, that her rights to privacy and freedom of belief give her the autonomy to decide what to do with her own life.

The judges disagreed with all these arguments, saying that they 'stand the whole purpose of the Convention on its head' on the grounds that the Convention's provisions aim at protecting and sustaining life, and that because 'death is the antithesis of life' the Convention accords no right to die nor to choose when and how to die.

This direct clash of perspectives lies at the heart of one of the most important debates our society could ever have with itself. It raises questions about the degree of autonomy individuals possess, and about the value and purpose of human existence itself. Perhaps it is no surprise that in the face of such profound concerns the judges should be so conservative. But the idea of human rights is not a conservative one. It is a bold one, aimed at granting real protection to the freedom and autonomy of human individuals; and for this reason the judges in Mrs Pretty's case made entirely the wrong decision.

The first question is whether the right to life includes the right to die. The judges concluded that it could not do so because 'death is the antithesis of life'. Their mistake lies in failing to see that although death is indeed the antithesis of life, dying is not. Dying is an act of living; it is indeed one of the most important events in life, and because it can be pleasant or painful, timely or untimely, tragic or desired, it is central to the character and quality of a person's life as he himself experiences it. We do not experience death, which is not an activity but a state – a state of non-existence indistinguishable from being unborn. But we very much experience dying, and just as we hope that most of our acts of living will be pleasant, we likewise desire that the act of dying should be so too – or if not pleasant then at very least not frightening, painful or undignified.

'Life' in the phrase 'the right to life' is not mere existence. It is existence with at least a minimum degree of quality and value. It means a life in which an individual is protected from arbitrary power and threat, is free to seek opportunities and to exercise choices, to enjoy the rewards of endeavours in peace, and to seek and foster personal relationships–and which, to the degree reasonably possible for anyone in this world, is free from distress and pain.

As this implies, mere existence is not automatically a good. If it were, no life-support machine would ever be switched off, and contraception would be outlawed because it limits the sheer accumulation of human numbers. There are indeed people, familiarly enough, who oppose contraception and euthanasia on precisely the grounds that they value quantity over quality of life. But it takes only a moment's thought to see the spuriousness of this view. The judges in Mrs Pretty's case, alas, failed to see that this was the tendency of their argument.

Moreover, the judges uncritically assumed that death – the state of non-existence which follows the life-process of dying – is in itself an evil. Naturally, most healthy and reasonably happy people wish to avoid or at least delay death, so that they can continue to enjoy their avocations, their pleasures, and the company of their loved ones. But for those who suffer terribly, death is a welcome prospect, a 'consummation' as Hamlet put it 'devoutly to be wished'. A life genuinely worth living is one in which neither dying nor death is an evil, but comes at a time and in a manner which completes the value of that life. Since death is inevitable, treating it as an evil from which to avert one's eyes is an error – and it gives rise to the poor argument which says that no-one could possibly disagree that considerations of the quality of life should be subordinate to those about quantity of life.

The second question is whether the idea of rights to privacy and freedom of thought amount to a right of self-determination – the right, in other words, to decide how one will live one's life (always granting that no-one has a right to live and act in ways that harm others). And obviously enough, these rights do indeed amount to a right of self-determination, for they protect the autonomy of personal life, and leave the great questions of life to individuals themselves – whom to love, whether to have a family, how to behave in private (consistently with the interests of others), and the like. The question of when and how to die is one of these questions, even though most people answer it by leaving the time and manner of their dying to chance. But in fact it did not take the advent of the Convention on Human Rights for people to acquire the right to choose in this respect, for it was already implicitly acknowledged. The passing of the Suicide Act in 1961, at last making it lawful for a person to end his own life, in itself implied an acceptance of an individual's entitlement to decide the time and manner of his life's end.

One of the anomalies of Mrs Pretty's case is that it is unlawful for anyone to help her do something lawful. The reason is that the Suicide Act rightly seeks to prevent murder under the disguise of assisted suicide; but because it does so by a blanket prohibition it has caught Mrs Pretty in a tragic trap. A better-drafted and more thoughtful law might have foreseen the special circumstances of cases like Mrs Pretty's, and provided an exception.

Many confusions surround the debate about assisted suicide and euthanasia. One is that most people fail to distinguish properly between them. 'Euthanasia' literally means 'a good death', and in that sense we all hope for euthanasia in the end. A suicide or assisted suicide might go wrong, if not properly carried out, and result in great discomfit for the subject – and thus not count as euthanasia in the literal sense.

Euthanasia has come mainly to mean deliberate acts or omissions which result in someone's death, as when an elderly patient with pneumonia is not given antibiotics, or when a life-support machine is switched off, allowing someone in a long-term persistent vegetative state to die. This is called 'passive euthanasia' and is regarded as lawful and acceptable. Active euthanasia takes place when someone is given death-inducing treatment of some kind.

There is, in fact, no moral difference between the two kinds of euthanasia, because deliberately not doing something is as much of an act as doing something. It is purely a matter of sentiment, of 'how it feels' to those involved, that passive euthanasia seems more acceptable. This point is more obvious when one recognises how often active euthanasia is in fact performed. Failure to shorten the suffering of a patient in agonising or terrifying terminal phases of an illness is so cruel that, in reality, very few doctors allow themselves to stand aside. To do so would be to treat people worse than animals, for we regard it as a kindness to animals to end their lives swiftly and easily when their suffering is otherwise unrelievable. But happily for human victims of pain or distress, in hospitals all round the country, every day, doses of pain-killers are raised to fatal levels when needed, the legitimacy of the exercise protected by the 'doctrine of double effect', which says that because the doctor's primary aim is to alleviate suffering, the life- shortening side-effect is inescapable and therefore acceptable.

But as with the distinction between passive and active euthanasia, this is a fig-leaf of convenience. In the Netherlands a thoughtful and careful law now exists to permit active euthanasia and assisted suicide, and in the American state of Oregon an equally careful law permits physician-assisted suicide. Every year in Oregon a report is issued describing the numbers and circumstances of those who have availed themselves of the law, and it makes touching reading – not least because in the majority of cases it meant that sufferers were able to die at home, with their families and friends around them, in relative peace.

This is what Mrs Pretty wants. Some of those who came forward as 'interveners' in the case – religious organisations, mainly – pointed out that there is excellent hospice care for people with terminal illnesses, where she will be looked after in ways that palliate her suffering and allow her to die with dignity. It is certainly true that the hospice movement offers outstandingly good terminal care, and that modern medicines greatly enhance their ability to provide it. But the existence of palliative care is not to the point for Mrs Pretty. She wishes to die when she is still alert, and able to say goodbye to her family. She does not want to endure the utter helplessness and distress of the last stages of her illnesses, whatever is available in the way of tranquillisers and reassurance. She might be paralysed and wheelchair-bound, but she is still a person with a mind of her own; and she wishes to make choices about her own affairs, above all to say when, where and how she will leave the life which, for all the happiness it has brought in personal terms, is drawing to an end so cruelly. Natural justice says that this is her right; and so does the Convention on Human Rights. All she asks is that her rights be respected.

Another is the permission to keep alive and fresh the child's curiosity which first prompted me to take Plato's "Charmides" from the library shelf. "Philosophy begins in wonder," Alfred North Whitehead said, "and when philosophic thought has done its best, the wonder remains." Another thing Socrates could have said that he knew, because all students of philosophy know it, is that the wonder arrived at by philosophy is an enriched and insightful wonder, and is one of the most exalted possessions of the human spirit.