Hazel McHaffie

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Rights and wrongs

What a week! And still the debate about the rights and wrongs of Brexit agreements and arrangements grinds on … and on … and on. Conflict. Tension. Lies. Threats. Who do we believe? Who can we trust? Whose interests and rights should take precedence? Who/what are these politicians really acting for – themselves, their constituents, their party, their consciences, or what? How much is Joe Public entitled to know? What will history make of these unprecedented shenanigans?

I sigh for the simple philosophies of a McCall Smith character … Todd the surveyor in 44 Scotland Street, perhaps, reprimanding his dishonest employee caught out in a lie: ‘All of our life is based on acts of trust. We trust other people to do what they say they’re going to do.’ Hmmmmm. If only.

No one is immune to doubt and uncertainty. Those much feted and privileged royals, the Duke and Duchess of Sussex, revealed in an interview this week that they’re both struggling with the conflict between their privacy and media coverage in their lives. Taxpayers contribute towards the upkeep of the monarchy, but does that entitle us to put them under the microscope? What should be considered legitimately in the public interest? Where do the limits lie? What if their mental health is less than robust? Is the loss of a parent in childhood an ‘excuse’ for the rest of one’s life? Should they have broken with royal tradition and confessed to human frailty? Is it different when a child is involved? And so on … and on.

Then there’s the Northern Ireland abortion laws, decriminalised this week, although implementation of the change is still hedged about with caveats and fraught with peril. Was it ever fair that a woman was legally prevented from having an abortion, even for a lethal fetal abnormality or when her pregnancy was the result of rape or incest? Is it right for Westminster to legislate for Northern Ireland coming into line with the United Nations rules on human rights? Should religious belief influence laws? Should someone else’s scruples limit my choices? If you’re pro-choice, this is a momentous victory for women’s human and reproductive rights; if you’re pro-life in all circumstances, it’s a sad day for Northern Ireland … Where do you stand?

Speaking of women’s rights … the jolly old debate around gender continues to blow my mind. Not only must provision be made for gender-neutral toilets and changing rooms; not only must transgender women be permitted to win the awards in female sport; but now a rapist must be recorded as female if that’s how they self-identify. What about the rights and feelings of the victims in all this? A quintessential female symbol has even been removed from sanitary towels – yes, you heard right, sanitary towels – by Proctor & Gamble, apparently because not everyone who has periods identifies as a woman. Hello?!! As a leading feminist campaigner put it: ‘We’re now moving towards the total elimination of women’s biology’ . The rights and wrongs, the questions arising, are too numerous to enumerate on this blog.

Welcome to my world – constantly asking what’s permissible, what’s morally right, what’s fair, what’s expedient? And nowhere do I probe more deeply than in my fictional characters’ lives. I have to be totally immersed in their emotions and thoughts and beliefs and experiences in order to make them authentic and believable. Their dilemmas haunt me day and night. Especially when the novel is at an early stage and I have no idea how, or ever whether, they’re going to survive or resolve or surrender to the pressures. Their pain and anguish swallow me whole.

Ideas for my twelfth novel are at an embryonic stage at the moment, so tender and fragile indeed that they might even miscarry altogether. I have several characters lurking around disturbing my peace, and eventually one group of them will send down roots and cling on with more persistence than the rest. Once they’ve claimed my full attention, and I know they’re here to stay, that’s when I’ll start to sink below the horizon of their stresses. All those what-ifs and rights and wrongs scrambling for answers. I might be gone some time!

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Locked in to a fate worse than death

Tony Nicklinson is 58. He’s paralysed from the neck down, can’t speak, and his only means of communication is by moving his eyes on a screen linked to a special computer. And yet his brain is so alive and intelligent that he can hold his own in arguments with twitters and QCs alike.

Prior to the stroke, Mr Nicklinson was a handsome, successful, fun-loving man, keen on extreme sports. He was in Greece on a business trip, when he suffered a catastrophic stroke in 2005. Now he is in a locked-in state,¬†dependent on carers for his every need, with no hope of recovery. He considers his life as ‘miserable, demeaning and undignified‘. He ‘has no privacy or dignity left‘, and he rates it a state worse than death. He’s held that view since 2007; it’s no passing whim. It’s what’s described as a ‘voluntary, clear, settled and informed wish’ in legal parlance. Watching him on The Channel 4 documentary,¬†Let Our Dad Die, surely no one could help but sympathise with his viewpoint. Even the Greek doctor who saved his life is appalled by the consequences of his actions, although no blame attaches to him.

In March Mr Nicklinson won the right to have his case heard by the High Court. The hearing took place last week (starting 19 June). There was considerable media interest in the run up to it. Lord Falconer visited the family at home. BBC’s Fergus Walsh went to see for himself what kind of a life a locked-in patient has. Channel 4 aired its documentary. Though he could communicate with these people in his own home, Mr Nicklinson was unable to attend the hearing in person, so he stated his arguments through emails and lawyers.

His case? Simply put, he is incapable of taking his own life, so he wants the judges to rule that, when he decides he wants to die, a doctor will be immune from prosecution if he/she helps him. Mr Nicklinson fully realises that the law as it stands prohibits anyone else taking his life; that would be murder. His defence rests on the view that he is being discriminated against, because of his disability. He is looking for assistance to do what he would do for himself were he able. Furthermore he adds poignantly, why should other people be allowed to condemn him to a life of increasing misery?

His barrister described it in more ponderous legal terms: ‘a serious interference of his common law and Convention rights of autonomy and dignity’.

It’s important to note that Mr Nicklinson is not seeking a change in the law. He is seeking two declarations from the court.

1. That in the circumstances of his case – and where an order has been sought from the court in advance – ‘the common law defence of necessity would be available to a doctor who, acting out of his professional and human duty, assisted him to die‘.

2. That the current law of assisted suicide and euthanasia is incompatible with his Article 8 rights of autonomy and dignity .

The QC acting for this family argues that a prior sanction by a court ‘would provide the strongest possible safeguard against abuse’. And furthermore ‘it would also provide a safeguard against the concern, often expressed by disabled opponents of legalisation, that a change in the law would lead to a change in people’s attitudes to disabled people, who they predict would come under subtle pressure to seek an assisted death through fear of being a “burden”.’

But any loosening of the limits frightens the legal fraternity. Speaking directly to Mr Nicklinson, Lord Falconer made it perfectly clear that in his judgement, modifying the law to accommodate such an act would be ‘crossing the Rubicon’. He was himself sympathetic to assisted suicide in cases of terrible disability with no prospect of improvement, where the patient expressed a sustained wish to put an end to their misery, but ending someone else’s life is murder and that must always be unacceptable.

Pause here for a moment and ask yourself: What answer would I give to Tony Nicklinson?

Watching the documentary I wanted to weep with this man. His chagrin, his pain, were palpable. But there again, as Christina Petterson put it in The Independent,

‘… the law isn’t about how we feel. The law isn’t about how you feel if you were once healthy and fit and happy, and now aren’t. The law, as Lord Falconer said on that Dispatches, is the same for everybody. “If people want to kill themselves,” he said, it’s an “entirely private matter”, but “they can’t kill somebody else”. The law, as the disability rights campaigner Kevin Fitzpatrick also said on the programme, is meant to offer protection. “When you develop a society where some people judge that other people’s lives are not worth living,” he said, “that’s the Rubicon.”‘

There can be no happy ending for the Nicklinsons, neither Tony, nor his wife, nor his daughters. But each time a tragic case like this comes to court, and I watch the family being forced to parade their lives in front of others, to expend dwindling energy on fighting their cause, I feel there has to be an alternative.

I can, of course, see the dangers inherent in a change to the law against taking life. The consequences could be inconceivably horrible. I accept too that these extreme cases make bad laws. But the fact remains, that these exceptional circumstances do present from time to time. And they seem to cry out for special judgements.

Would it be so terrible to openly acknowledge this fact, and to relieve these families of the necessity of taking their cases to the courts? Why not constitute a sort of Ombudscommittee – a gathering of carefully selected, experienced and wise folk, representing law, medicine, religion, ethics, patients – who could quietly, rationally, compassionately, debate the very few cases which fall into this terrible legal limbo, taking guidance from others as and when they need it? Not in such a way as to drive the debate underground, not to sweep the anomalies under the carpet, but to take individual cases away from the heat and distortion of media coverage, protecting and supporting those for whom this dilemma is a lived reality not a theoretical argument.

I haven’t ever seen this idea promoted, and it’s the first time I’ve aired my own view on this. So what do you think? Would you be in favour? Or can you see some glaring reason why this would not be an acceptable way forward?

What would your solution be?

 

 

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