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Is the UK Government out of touch with modern Human Rights Law regarding Euthanasia?

In this article, 4th year LLB student and European Law sub-editor Selena Jackson discusses the contrast between the UK's stance on euthanasia since Pretty v United Kingdom, and recent legal developments that have been made elsewhere...

IS THE UK GOVERNMENT OUT OF TOUCH WITH MODERN HUMAN RIGHTS LAW REGARDING EUTHANASIA? 

Forming the basis of the Universal Declaration of Human Rights (UDHR), dignity has long been regarded as an absolute requirement in upholding the fair and equal application of human rights[1]. While the exact definition of ‘dignity’ is ambiguous, what is clear is that, as a symbol of human value, it is of utmost importance as a fundamental normative principle of healthcare and medical ethics[2]. However, difficulty arises where dignity must be respected alongside - and in harmony with – both autonomy[3] and personal integrity[4]. Where these moral principles come into conflict, perhaps most markedly, is in the case of assisted suicide, or voluntary euthanasia. What this paper will aim to explore is why, despite some recent state progression in overcoming this obstacle, the United Kingdom remains strongly opposed to decriminalising the act of aiding or abetting the termination of human life, with particular focus on the case of Pretty v United Kingdom[5].

 

The case of Dianne Pretty

 

In Pretty, the appellant, a woman suffering from motor neurone disease, complained of a violation of her rights under Articles 2, 3, 8, 9 and 14 of the European Convention on Human Rights (ECHR) – codified into British law by the Human Rights Act 1998 – were her husband to be held liable for assisting her in ending her life.

The Court (ECtHR) unanimously rejected Pretty’s appeal, largely on the basis that the obligations imposed on the UK government by the ECHR had been fulfilled, on the principle that where values and interests are in conflict, the preservation of dignity is paramount[6], and that any interferences with the appellant’s rights were justified in the interest of public safety.

 

The precedent set in Pretty has been followed in all cases concerning euthanasia in the UK, and despite 76% of the British population believing that current legislation should be amended[7], and various challenges of its legal and moral standing, “encouraging or assisting the suicide or attempted suicide of another person”[8] remains a statutory criminal offence, with a potential custodial sentence of up to 14 years imprisonment. Following Pretty, it was ruled that this prohibition was not in accordance with the law where a frame of reference detailing the circumstances under which an individual who aids an individual in accessing assisted suicide may be prosecuted did not exist[9], and as such a relevant policy was published by the Director of Public Prosecutions (DPP.)[10] Regardless, the Supreme Court has repeatedly maintained that only Parliament would have the jurisdiction to amend the law regarding euthanasia in the UK[11].

 

International Approaches

 

Euthanasia or physician-assisted suicide (PAS) is now legal, or unpunishable, in the Netherlands, Switzerland and Belgium, amongst others. In contrast to the position taken regarding the interpretation of Article 2 by the ECtHR, according to Dutch legislation, the blanket application of the protection of an individual’s right to life may constitute an infringement of his or her freedom of self-determination[12] (a crucial element of human autonomy), thus allowing for the development of legislation which permits euthanasia and PAS in patients as young as 12 years old[13]. In fact, in September last year, a 17 year-old Belgian patient became the first to die via PAS since these provisions were introduced[14]

 

Furthermore, in a landmark judgement in June 2016, the Canadian senate passed Bill C-14, amending s241(b) of its Criminal Code, as a result of it being declared as an infringement of s7 of the Canadian Charter of Rights and Freedoms[15]. Regarding the issue of dignity, the Court commented that:

“There was no dignity in the applicant being in severe pain… unable to care for his own hygiene and potentially dying at any moment…”[16]

With s241(b) presenting almost identical phrasing as s2(1) of the Suicide Act, and s7 closely mirroring the content of Article 2 of the ECHR, the contrast to the rigid position of the British courts taken following Pretty is striking.

 

Similarly, governed by the National Criminal Code, euthanasia in Switzerland has become de facto an unpunishable act[17], therefore permitting a regulated method of assisted suicide, under the condition that the assistance is not carried out for the furtherance of “selfish motives.” In acknowledgement of the existence of the Swiss ‘Dignitas’ clinic, and the potential for British patients to travel there in order to commit suicide, the DPP policy now extends to lessen liability for individuals who aid and accompany patients on their journey to Switzerland.

 

Of all the countries and states where euthanasia or PAS has been legalised or decriminalised, strict legislative regulations apply, with a strong legal emphasis on the voluntary and consensual nature of the treatments.

 

The United Kingdom

 

The Courts have deemed it to be within the rights of the patient and his exercise of self-determination to refuse to accept life-preserving or prolonging treatment, even where this is not considered by medical professionals to be within his best interests[18]. However, the only option currently available to patients under close interpretation of Article 2 of the ECHR is so-called “passive euthanasia”, in other words, a patient can only request that treatment be withheld or withdrawn where it is clear that the treatment is of no real benefit to the patient[19]. The legality of administering “dual-effect” treatment has been affirmed[20], where treatment intended to ease the pain of a patient may also reduce his life expectancy, for example the administration of palliative medicine to a terminally ill cancer patient. The moral reasoning behind the acceptance of passive euthanasia appears to lie in the distinction between “killing” and “allowing to die”[21]. While this conclusion could arguably raise questions concerning an Article 2 positive obligation imposed upon the state, it was held in Keenan v United Kingdom[22] that the potential for this is dependent upon the individual’s position of vulnerability at the hands of the state; in this case stemming from the fact that the individual was in custody at the time of his death.

 

There have been various attempts to push legislation governing euthanasia and PAS through Parliament in recent years. The progression of Lord Falconer’s Assisted Dying Bill 2014-15 was halted when it ran out of time in Parliament, despite unanimous acceptance of an amendment proposing that euthanasia should be available to terminally ill patients with a prognosis of less than 6 months left to live. This amendment would bring British law in line with Oregon’s Death with Dignity Act[23], legislation which has been heralded as particularly successful, and which Lord Falconer’s bill was heavily based upon.

Most recently, a similar private members’ bill[24] was rejected by 74% of MPs in September 2015. Anti-euthanasia campaigners have continually argued that the capacity of a terminally ill patient to give their informed consent may be compromised. As was reinforced by the ECtHR in Pretty, the criminalisation of assisted suicide has the aim of:

            “… protecting the weak and vulnerable… especially those who are not in a condition to take informed decisions against acts intended to end life or to assist in ending life”[25].

As a normative principle, dignity is at the basis of all principles of healthcare ethics, including human autonomy – supplied by informed consent[26]. The protection of individuals who do not possess the capacity to give informed consent therefore would undoubtedly ensure a preservation of their dignity, however as is observed in Oregon’s Death with Dignity Act, the provision of assisted suicide services under the Assisted Dying Bill would only apply to patients who have “…the capacity to make the decision to end his or her own life”[27].

 

Article 8 perhaps provides the most compelling challenge to the prohibition of euthanasia. It has been acknowledged that the imposition of medical treatment without informed consent is a breach of Article 8 of the ECHR[28]. Critically, it protects the fundamental principle of autonomy and self-determination, even where an individual’s actions or inactions may result in harm to their wellbeing[29]. Regarding Dianne Pretty, there is speculation that her case may have been more successful had she placed more emphasis on her rights under Article 8, as opposed to Article 2. In response to her argument that the Article 2 right to life implies a parallel right to die, the Court (ECtHR) upheld the Supreme Court’s decision, ruling that it:

“cannot… without a distortion of language… be interpreted as conferring… a right to die; nor can it create a right to self-determination… conferring on an individual the entitlement to choose death rather than life”[30].

However, referring to the development of the Court’s interpretation of Article 8 regarding the protection of an individual’s right to self-determination, particularly with regards to medical treatment, there could arguably be room for the consideration of a terminally ill patient’s right to seek life-ending treatment, even where the state would consider this harmful.

 

Conclusion

 

It appears that the position of the British government is vastly out of line with public opinion regarding euthanasia. The reliance upon the non-binding[31] precedent set in Pretty is arguably too strong, as the only legal justification of the government’s refusal to amend the law ultimately lies with the ECtHR’s dismissal of Diane Pretty’s case based on what it deemed to be a justified interference with her rights. This stance must be questioned on the basis that prioritising public safety over autonomy is inconsistent with the judgement in Jehovah’s Witnesses v Russia, that:

“…free choice and self-determination were themselves fundamental constituents of life and that, absent any indication of the need to protect third parties—for example, mandatory vaccination during an epidemic, the state must abstain from interfering with the individual freedom of choice in the sphere of health care, for such interference can only lessen and not enhance the value of life”[32].

 

The arguments on both sides of the issue are convincing and illustrate the depth of the contention concerning the legality of euthanasia. It does not appear that the law regulating euthanasia and PAS in the UK will change any time soon. However, if the principles of dignity and autonomy under Article 8 are truly to be harmonised by lawmakers in the UK, it is clear that more development is needed of national legislation. The focus should not be solely on legalisation, but also on the regulation of the terms and circumstances surrounding life-terminating treatment, in order to bring it into line with not only a rapidly developing area of the law, but, crucially, with public opinion.

 

 

 

 

 

 

 

[1] Universal Declaration of Human Rights 1948, Art. 1, Goodwin v United Kingdom 28957/95 (2002) E.H.R.R. 18, para 90

[2] For the purposes of this essay, ‘dignity’ is defined as “the absolute human moral worth that is equal for all humans”. Henriette Sinding Aasen et al., Human Rights, Dignity and Autonomy in Health Care and Social Services: Nordic Perspectives (Intersentia 2009) p.30

[3] As defined by post-Kantian humanists as the freedom or liberty of an individual. Ibid. p.21

[4] Defined as “the condition of being whole, entire or undiminished”. Ibid, p.32

[5] 2346/02 (2002) 35 E.H.R.R. 1

[6] Ibid. para 65

[7] www.yougov.co.uk/news/2010/03/05/majority-would-support-more-compassionate-euthana/ (accessed 6/11/2016)

[8] Suicide Act 1961, s2(1)(a)

[9] R. (on the application of Purdy) v DPP [2010] 1 A.C. 345, p.353

[10] The Crown Prosecution Service, Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide, February 2010

[11] R. (Nicklinson) and Others v Ministry of Justice and Others [2015] A.C. 657

[12] Parliamentary Papers II 1999-2000, 26691, No.6, p.114

[13] The Termination of Life on Request and Assisted Suicide (Review Procedures) Act 2002

[15] Carter v Canada 2015 SCC 15 1 S.C.R. 331, para 147

[16] Ibid. case digest p.2

[17] Swiss Criminal Code 331.0, Article 115

[18] Airedale NHS Trust v Bland [1993] A.C. 789, p.864

[19] Ibid. per Butler-Sloss L.J. at p.818

[20] Ms. B v An NHS Hospital Trust (2002) EWHC 429 (Fam)

[21] Cartwright, Killing and letting die: a defensible distinction Br Med Bull (1996) 52(2): 354-361

[22] (2001) 33 E.H.R.R. 38

[23] Oregon Ballot Measure 16 (1994)

[24] Assisted Dying (No. 2) Bill 2015-16

[25] Pretty v United Kingdom, para 74

[26] Aasen et al., Human Rights, Dignity and Autonomy in Health Care and Social Services, p.31

[27] Assisted Dying (No. 2) Bill 2015-16, s1(2)(c)(ii)

[28] Glass v United Kingdom 61827/00 (2004) 39 E.H.R.R. 15  

[29] Jehovah’s Witnesses of Moscow and Others v Russia 302/02 (2011) 53 E.H.R.R. 4, para 135-138

[30] Pretty v United Kingdom, para 39

[31] Human Rights Act s2(1)(a)

[32] Jehovah’s Witnesses of Moscow and Others v Russia, para 136

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