Lives are thrown into the High Court punchbowl like so many suburban key rings, and we gather round like priapic husbands, raucously commenting on the options picked out by the early life swappers.

‘Coo, don’t fancy yours’

‘I’d put that one out of its misery’

On Wednesday, The Hon Mr Justice Baker was required to dip into the punchbowl and determine whether the life he plucked out was so intrinsically valuable that no matter it belonged to a multiple rapist and murderer, it should be protected from any possible future harm in its originating homeland; or whether it belonged to an individual of so little value to society and/or itself that it should surely be extinguished.

It is snuff porn writ large, and it bestows dignity on no man or woman.

The judgment concerned the life of ‘M’, a woman in a ‘minimally conscious state’, as opposed to the ‘persistent vegetative state’ endured by Tony Bland, who was allowed to die because treatment was futile, following a ground breaking application by his family.

Lucy Series, for whom I have unlimited respect, was an early commentator – she was of the opinion that The Hon Mr Justice Baker’s judgement that ‘M’ should continue to live was correct in the sense that the Court of Protection does at least offer a ‘framework for discussion’ of the factors to be considered. She passes no judgement as to whether The Hon Mr Justice Baker’s judgment was right for ‘M’ or not.

Polly Toynbee in a disgraceful article in the same rag – I offer no link, if you wish to be wound up by her witterings, find your own way there – shows no such reticence. Polly cannot imagine a life where you would not aspire to a Tuscan villa, or have the latest Jimmy Choo’s on your wish list and concludes that were ‘M’ a ‘cat, she would be put out of her misery’. She advocates contacting a charity that will give you ‘an emblem’ to place about your person indicating whether, seated in your Tuscan villa, you would wish to continue to live were you not seated in your Tuscan villa….

Interestingly, she declined to give a link to the full judgement in her torrid piece, something that was latter rectified by a link to the full judgment on the Ministry of Justice site – not the more Guardian appropriate charitable Bailli site which struggles for its existence and was set up specifically to allow those not possessed of the many thousands Westlaw demand to access the law, but free of charge – please donate if you follow my link.

Commentators in general appear divided over whether man possesses the right to take a life or not – but no one seems to address what is to me the central issue; how did our parliamentarians, in between their sexual shenanigans and the many hours pouring over Ipsa applications for expenses, ever agree to pass a law which demanded that matters which should be decided by fate, could be determined by another human being? It is the secularist left wing ideology taken to extremes.

None of us are capable of foreseeing how much joy we might find in a different life in the future. In a materialistic world we imagine happiness to be found in the ability to shop, to possess, to accumulate.

Yet happiness comes in many shades and forms. If we cannot foresee that for ourselves, how could any of us ever truly foresee where happiness and enjoyment might lie for another person – not even The Hon Mr Justice Baker can do that, he can only weigh the evidence and apply the law as he believes parliament intended.

Yesterday morning I was driven past vineyards bursting with harvesting machinery, through forests teaming with deep red wild vines, past man made drainage lakes of the deepest blue, glistening in the sunlight, over an endless featureless landscape that positively glowed with colour – it nearly had me in tears, my heart was so full of happiness. Knowing of my fervent dislike of motorway travel and the rape of the countryside that flood control involves, would you have concluded that I was unhappy, based on my past preferences?

Yet a judge, a human being, as incapable of all of us of foreseeing where future happiness lies, was asked to examine the evidence that ‘M’ wept when she heard a Lionel Ritchie love song, and her sister’s evidence ‘that she can’t even enjoy a cup of tea’.

That is what is wrong – not a secular versus religious argument as to whether only God has the right to take a life, or whether a cat would be put down – but the very notion that something called the ‘Mental Capacity Act’ is capable of seeing into our souls in a new situation and deciding whether we should find enjoyment in it or not.

There is another matter which must be considered – and I emphasise that I pass ABSOLUTELY no inference that it applied in the case of ‘M’.

‘M’ was unmarried. In a similar hypothetical case we should consider the financial position as well as notions of life and death. Perhaps the cause of injury was a traffic accident; substantial damages could be involved, running to many millions of pounds. In such a case, the Court of Protection would draw up a Statutory Will. It would reflect the situation as at the time of the Will being drawn up in terms of beneficiaries. Or to put it more bluntly, the brothers, sisters, parents, of such a patient could benefit substantially from the Will coming into play. You would not know from the judgment the contents of such a will – it has no validity as a document whilst the patient is still alive. Do you still feel comfortable about a law which allows the family to make emotive pleadings to a judge that their relative should be allowed to die?

It is the law that should be struck out, not a particular judgment. A law that purports to have been implemented on behalf of the tens of thousands of brain damaged souls in the UK whose lives have changed irrevocably. There was no clamour by the brain damaged to have such a law, incontrovertibly so. They had no say in the matter.

As the original Enduring Power of Attorney Act was passed, not at the behest on confused elderly widows worried that their instructions to their stock brokers might be misapplied – but by those very stock brokers and accountants, concerned that they might later be sued by the families should their instructions not bear the fruit that the beneficiaries had come to consider their rightful inheritance.

The medical profession, the battalions of nurses and carers, the Primary Care Trust lawyers, were concerned at their liability under the God awful Human Rights Act should they either fail to/ or continue to preserve life – they were the people who demanded that Judges decide their actions, protect them from Torts.

The final indignity is that Polly rails that ‘to be shut away alone in pain for eight years is an agony I cannot begin to contemplate – and a cruelty worse than any other a British judge has the power to impose’. She would prefer that the Judge protect the Trust from the criminality of starving and dehydrating ‘M’ over a considerable period. Oh you stupid woman, did you not look at the judgment? Your precious law that you think the judge has failed to apply to suit your notions, the action on behalf of ‘M’ was started in 2007 – it has taken five of your eight years to even get that judgment.

So much for the Mental Capacity Act protecting the vulnerable.

Give fate a chance.

Gildas the Monk
September 30, 2011 at 11:31

Death by withdrawal of food and fluids must be one of the most cruel and
inhuman acts ever contrived by a sometimes bonkers medico-legal ethics system.
Ny instinctiv ereaction to this case is that where there is life and some
potential signs of cogniscenec life should be preserved. I would presume in
favour, not against. I think Baker J made the right call, but I havent read
the judgment yet. Watch this space.
G the M

Anna
Raccoon September 30, 2011 at
13:04

I think he made the right call too gildas – I just don’t think he should
ever have been asked to make that call – nor anybody else so asked!

LJH September 30, 2011 at 10:38

I despair when people think it’s okay to withdraw fluids from anyone,
however close to corpse they may be. When you stop eating, after two days the
ensuing ketosis ensures you don’t feel hungry, even when the body consumes
heart, liver and kidneys to provide energy to keep going. If you become
dehydrated the body goes into overdrive to replace fluid, as moisture is
sucked out of mucosa by breathing, sweating and kidneys. Acute discomfort, the
experience of maddening overwhelming thirst to is what evolution has
programmed us for, because this is what kills long before starvation has used
up vital organs. A normal adult dies of starvation after 6-8 weeks fasting,
but not in pain. Depending on temperature, death from thirst is within days
and excrutiating for any minimal consciousness.

JuliaM September
30, 2011 at 11:01

Ask your vet to let you withdraw fluids from your terminally ill dog or
cat. They’ll be on to the RSPCA before the words ‘Well, if it’s good enough
for Aunt Bertha…’ have left your mouth.

The Mekon September 30, 2011 at 10:28

Can anyone explain how Polly is qualified to be President of the Humanist
Association?

JuliaM September
30, 2011 at 10:58

Indeed. Don’t you have to be human?