Classic cases revisited – Tony Nicklinson and the question of dignity

Abstract

Dignity is a concept we often evoke in healthcare when caring for patients and attending to their basic needs. It is a very human concept, unique perhaps. Yet, though instinctively we think we know what it means, we rarely pause to reflect on it. What does it mean? It is a concept that is hard to define and not easy to apply and yet a concept important for humanity. This article explores the roots and the uses of the term with particular reference to human rights, patient choices at the end of life and to vulnerability.

Most esteemed Fathers, I have read the ancient writings of the Arabians that Abdala the Saracen on being asked what, on this stage, so to say, of the world, seemed to him most evocative of wonder. He replied that there was nothing to be seen more marvelous than man. And that celebrated exclamation of Hermes Trismegistus, “What a great miracle is man, Asclepius,” confirms this opinion.¹

Of all tyrannies, a tyranny exercised for the good of its victims may be the most oppressive. (CS Lewis²)

Introduction

Dignity is a concept we often evoke in healthcare when caring for patients and attending to their basic needs. It is a very human concept, unique perhaps. A concept that has no equivalent in animal biology, a construct of our minds. Yet, though instinctively we think we know what it means, we rarely pause to reflect on it. What does it mean? Dignity, humanity, suffering – are terms often encountered together and in the context of healthcare often evoked when encountering death and dying. Horton once remarked “Human dignity is a linguistic currency that will buy a basketful of extraordinary meanings. It is not surprising, perhaps that some critics describe dignity as a meaningless slogan”.³ Macklin is more scathing:

Is dignity a useful concept for an ethical analysis of medical activities? A close inspection of leading examples shows that appeals to dignity are either vague restatement of other, more precise, notions or mere slogans that add nothing to an understanding of the topic.

She concludes – “Dignity is a useless concept in medical ethics and can be eliminated without any loss of content”.⁴

But the concept of dignity is difficult to dismiss completely. It continues to be used, invoked and misused by the public, the profession and the law. In a recent review article in The Intensive Care Medicine journal, authors simply state “dignity means avoiding disproportionate interventions, and an ‘end-of-life’ contradicting patient’s preferences”.⁵ In essence, they are not incorrect, but the statement is somewhat simplistic. What is our understanding of dignity? Is it an empty word? This paper is a reflection on the above questions.

The case of Mr Nicklinson

On 22 August 2012, BBC reported that “right-to-die” man Tony Nicklinson died after refusing food.⁶ Tony Nicklinson’s story was poignant in that healthcare, focused on preserving life, offered him a life that he described as a “living nightmare”, a life which he regarded as “dull, miserable, demeaning, undignified and intolerable”. He suffered a catastrophic stroke that left him locked-in. Unable to physically commit suicide, he wanted assistance with suicide either by means of euthanasia or even by means of Philip Nitschke’s machine, which he could potentially trigger himself. Neither option was available to him under the UK law. He was denied assistance in committing suicide. The only way that was left available to him was to refuse food and die of starvation. Eventually, Mr Nicklinson “embarked on the very difficult and painful course of self-starvation, refusing all nutrition, fluids, and medical treatment”.⁷ He achieved the goal he set himself. He remained in control, yet the manner of his death may seem disturbing. Many could argue that his was an undignified way to die. His case, upon appeal, along with those of a couple of other individuals facing similar predicaments, eventually reached the Supreme Court of the House of Lords. The Supreme Court judges went into great detail when considering the final judgment.

Human rights movement and the concept of dignity

The Judgment of Supreme Court⁷ is a 131-page study of eloquence and substance. In summary, it considers the compatibility of the current legislation, namely Section 2(1) of the 1961 Suicide Act⁸ (re-enacted in Coroners and Justice Act 2009) with the Article 8 of the European Convention on Human Rights.⁹ Historically before 1961, suicide was an offense, a self-murder, and as such punishable by law. Although suicide was decriminalised, Section 2(1) of the Act states that “a person (“D”) commits an offence if “D” does an act encouraging or assisting the suicide or attempted suicide of another person”.⁸ The criminal nature of assisting suicide has remained a sticking point in a number of legal cases that have played out over the years. It has been established that it is possible to refuse treatment either prospectively¹⁰ or in advance as facilitated by the Mental Capacity Act 2005, with consequence of the refusal being death. The law draws on a tenuous difference between omission to treat as opposed to an act of killing¹¹ to avoid arriving at the conclusion that death occurs as a result of homicide. Thus, to abstain from treatment or to withdraw treatment in the absence of curative strategy or upon one’s wish does not constitute assisting suicide, but merely reflects the natural process of death.

In the case of Mr Nicklinson, the relevant case law had been reviewed arriving at a conclusion of there being incompatibility between Section 2(1) and Article 8.⁷ This paralleled the conclusion of Lord Falconer’s The Commission on Assisted Dying that “the current legal status of assisted dying is inadequate and incoherent”.¹² The State, however, who in the view of the Law Lords should address apparent legislative issues, remains reluctant to endorse any assistance with the act of suicide. The reasons are enunciated in Pretty v UK,

… the law in issue in this case, section 2 of the 1961 Act, was designed to safeguard life by protecting the weak and vulnerable and especially those who are not in a condition to take informed decisions against acts intended to end life or to assist in ending life.¹³

Immanuel Kant and the concept of dignity

The Groundwork for the Metaphysic of Morals by Immanuel Kant should be considered a fundamental work for all scholars of dignity. Immanuel Kant conducts an in-depth analysis of the motives of human action in search of universal principle of morality. Detailed description of his work is beyond the scope of this paper, but crucially he arrives at the foundations of moral law distilled to the so-called categorical imperative. Categorical imperative spells out a duty to act that is not contingent on any external or internal experiences, but arises from pure reason. Its cardinal feature, as Kant says, is the “renunciation of all one’s interests when one wills from duty”.¹⁴ One of the formulations of the categorical imperative is:

Act in such a way as to treat humanity, whether in your own person or in that of anyone else, always as an end and never merely as a means. ¹⁴

Kant recognises intrinsic worth in all beings capable of autonomous rational thought. This capacity for moral existence through autonomous exercise of will, that is rational thought, is, in Kant’s mind, the foundation of dignity.¹⁴ Dignity, in Kant’s view, is the respect or even reverence that is required to acknowledge the capacity for reason (the will) and thus moral conduct that is inherent to all rational beings. As such it is absolute and it is reflected in the categorical imperative (as stated above). This brings Kant to an example that is pertinent to this paper, the subject of suicide.

Someone thinking of committing suicide will, if he is guided by the concept of necessary duty to oneself, ask himself ‘Could my suicide be reconciled with the idea of humanity as an end in itself?’ And his answer to this should be ‘No’. If he escapes from his burdensome situation by destroying himself, he is using a person merely as a means to keeping himself in a tolerable condition up to the end of his life. But a man is not a thing, so he isn’t something to be used merely as a means, and must always be regarded in all his actions as an end in himself. So I can’t dispose of a man by maiming, damaging or killing him—and that includes the case where the man is myself.¹⁴

This upon further examination may yield a conclusion that dignity is associated with suffering, rather than with dying. Indeed, we can imagine someone stoical in the face of terrible fate and we see him acting in a “dignified manner”. Dying, however, is often when the dignity inherent in our existence is threatened by loss of capacity for rational thought. When the capacity for rational thought is threatened or taken away, e.g. in severe illness, we are “apparently” robbed of the dignity of rational behaviour. Delirium, dementia, severe pain or suffering may all abolish our capacity for free will and reason. Good, caring medicine tries to restore, preserve or at least maintain the appearance of dignity. When that is increasingly difficult we resort to palliative interventions. Kant possibly wavered somewhat in his thoughts, but never explicitly so. He did pose a question concerning a man bitten by a rabid dog. Should he, for sake of others, commit suicide? Kant provided no answer.¹⁵ Did Kant leave any room for moral manoeuvring? Very little. However, he did make a distinction between two worlds we, as humans, inhabit: “the intelligible world” – the world of pure reason and the “sensible world” – the world of senses and interests:

Considered only as a member of the intelligible world, my behaviour would completely accord with the principle of the autonomy of the pure will; considered as a bit of the sensible world, my behaviour would have to be assumed to conform wholly to the natural law of desires and preferences and thus to the heteronomy of nature. (The former behaviour would rest on the supreme principle of morality, and the latter on that of happiness).¹⁴

and furthermore

So this is how categorical imperatives are possible: The idea of freedom makes me a member of an intelligible world; if I were a member only of that world, all my actions would always conform to the autonomy of the will; but since I confront myself also as a member of the world of sense, my actions ought to conform to it.¹⁴

The “ought to” as opposed to “would” give us perhaps some hope of being able to suggest exception to the rule. There is no escaping the empirical world of perceptions. It is a part of our humanity. Artistic endeavour can be far removed from morality or reason and yet we view it as typically human undertaking. We have a capacity to enjoy music, literature and art. It is surely an unusual if not unique feature of our species. If we were to feed Kantian moral theory into an artificial intelligence construct, which belongs in its entirety to the “intelligible world” and request moral guidance, would we be happy with the answer that is abstracted from the, so human, realm of the senses and emotions they elicit? Dignity is a concept with moral foundation that should be viewed independent of the clutter of the “sensible world”, and yet is not the only characteristic of the human race.

Returning to the fate of Mr Nicklinson, we may also observe that the judgement in his case serves to defend a certain principle – that is prohibition of assisted suicide. This creates a certain paradox in that his humanity fails to remain an end in itself and becomes a means to defend an idea, a societal principle. Kantian deontological – that is duty based – philosophy has lent itself to the formulation of thinking and the laws that guide the conduct within our society. Other deontological, that is duty based, philosophies, including those based on religion have further influenced our laws. Killing is not only immoral, but also criminal in context of the law. This is likely why suicide has been viewed as self-murder and why it remains problematic to this day.

Dignity as self-respect

Without an intention of being frivolous, I will permit myself to look briefly at the subject of “dwarf-tossing” to further examine the issue of dignity. It is said that dwarf-tossing originated in Australia as a form of entertainment offered in pubs. A person suffering from dwarfism would, wearing protective clothing, consent to being “tossed” by the paying customers, with the winner being the individual able to toss the dwarf furthest. A case came about concerning a dwarf, who claimed to be a victim of a violation by the state of France. The man in question was Emanuel Wackenheim. The French Ministry of Interior issued a circular stating the “dwarf-tossing” should be banned, amongst other things, on the grounds of the Article 3 of the European Convention on Human Rights. The Article 3 prohibits torture and inhuman or degrading treatment or punishment.⁹ Mr Wackenheim complained to the United Nations Human Rights Committee. The complaint stated “that banning him from working has had an adverse effect on his life and represents an affront to his dignity”. He also stated “that there is no work for dwarves in France and that his job does not constitute an affront to human dignity since dignity consists in having a job”. The Committee upheld the decision by the French Court, acknowledging, however, that employment is an element of human dignity and depriving individual of it amounts to diminishing that dignity.^16,17 One may note a parallel with the illegal nature of prostitution in many states. What is it about having a job that determines one’s dignity? Is dignity locked in within our humanity purely by nature of us being human or does it have a broader scope? The case of Mr Wackenheim demonstrates a way of looking at dignity as self-respect. Having a job, being able to look after oneself, having the autonomy and being in control of one’s body are all aspects of dignity that could also be viewed in terms of self-respect. Maslow provided a model of self-actualisation and fulfilment vis-a-vis a hierarchy of needs.¹⁸ Incontinence, inability to brush one’s teeth or attend to issues of hygiene, dependence on drugs as well as failure to succeed in life, work, etc. can all lead to loss of self-respect and with it to loss of dignity or sense of self-worth. This clearly can be seen in Mr Nicklinson’s case, who did not deny his humanity, but whose loss of dignity reflected failure with regard to almost all aspects of self-actualisation.

Vulnerability and dignity

Human rights law, philosophical concepts and psychological considerations all seem somewhat fuzzy and difficult to apply. Yet those ideas are important as, at their centre, is our humanity. It is however easy to elicit the concern for that humanity by considering a concept of vulnerability. In 2018, Khaled Hosseini published a short but emotionally charged book Sea Prayer dedicated to Syrian refugees.¹⁹ The book was inspired by the death of a child – Alan Kurdi – a three-year-old boy who drowned in the sea trying to reach land free of war and strife. When faced with a suffering child, cold, scared and helpless most of us would help, would reach out and try to save the little person. Most would recognise the child’s vulnerability without pondering his or hers dignity. And yet it is the humanity of the act of help that defines our dignity as moral species. It is vulnerability that is often most noticeable where there is strife, poverty or disease. Dealing with it is the daily bread of physicians and the essence of practice of medicine. The link between vulnerability and dignity is articulated in the Care Act 2014. The act strives to provide structure for safeguarding dignity and safety of vulnerable individuals. To return to Horton, for he has found the words:

medicine is an important lever for restoring human dignity, at the bedsides of the sick as well as among the world’s threatened peoples. The role of doctor must be to alleviate dis-ease as well as disease, to have quiet humility to listen when faced with pervasive anxiety, to have the strength to give sustenance when faced with despair, and to have confidence to act as the voice of one’s patient or people, through advocacy, when faced with vulnerability and powerlessness. The restoration of dignity is the end common to all of these endeavors.²⁰

Conclusion

Dignity remains an evolving concept. It is hard to define and not easy to apply. This should not deter us from studying it. Confucian philosophy values ambiguity and the more ambiguous the concept is the more worthy it is of study and consideration. This is particularly so when the subject of our study is the essence of our humanity. The current law in many respects reflects Kantian view of dignity with increasing number of human rights considerations entering it as well. The word “dignity” should be intrinsic to practice of medicine, as it places patient at the centre of all our efforts; however, the concept of vulnerability may be more practical and holistic. Our efforts should be directed at a patient “as an end in himself”. The moment we forget that, as might be the case with defensive medicine, or ill-conceived adherence to a protocol without respect for individual’s autonomy and authenticity, we disrespect the patient’s dignity by essentially using them for different goals. Here the definition of protecting patient’s dignity as “avoiding disproportionate interventions”,⁵ so relevant in ITU settings, begins to make sense. One has to be also wary of a potential trap, that is technology. Using it just because we can does not mean we should unless it is to support, not merely life, but dignity of one’s existence. This can be challenging without ill intentions as demonstrated in the case of Tony Nicklinson.

Declaration of conflicting interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.