“…An individual’s right to decide by what means and at what point his or her life will end, provided he or she is capable of freely reaching a decision on this question and acting in consequence, is one of the aspects of the right to respect for private life within the meaning of article 8 of the Convention [right to private and family life].” So said the European Court of Human Rights in Haas v Switzerland (2013) 56 EHRR 6, at para 51.

This seems to me to be right: you should, in principle, be able to choose for yourself how you spend the last phase of your life. The State should not put unreasonable or unjustified or disproportionate obstacles in your way. As Lady Hale says (at para 312-3 of the decision of the Supreme Court in R (Nicklinson and another) v Ministry of Justice; R (AM) v The DPP [2014] UKSC 38), protecting the vulnerable is a reason to justify a general ban on assisting suicide, but is not sufficient to justify a universal ban.

The problem is section 2 of the Suicide Act 1961, which makes it a criminal offence to encourage or assist the suicide of another person. Should it be an offence for anyone in any circumstances to help someone commit suicide?

Nine judges considered this question in the Supreme Court. Or rather, they considered a series of questions, which included the constitutional and somewhat technical question of whether it was for the judiciary to strike down section 2, or whether they should leave the question to Parliament. By a majority of seven to two, they voted not to issue a declaration that section 2 is incompatible with article 8. So – no change ahead?

I’m with the minority, Lady Hale and Lord Kerr. They aren’t so very radical: all they would have done is issue a ‘declaration of incompatibility’ to force Parliament to decide what to do next: they are not telling Parliament what to do. If they’d had their way, Parliament would now have had three options:

(i) amend section 2 by way of remedial order under section 10 of the Human Rights Act 1998 (very unlikely that Parliament would choose to change primary legislation by secondary on this controversial issue!);

(ii) amend the law by a new Act of Parliament (my preferred option); or, of course

(iii) do nothing – either because it doesn’t agree that the present law is incompatible with article 8, or (more likely) because, as a sovereign Parliament, it considers an incompatible law preferable to an alternative.

If our current law is not compatible with Article 8 of the European Convention on Human Rights, the courts have a duty to say so. It is, according to the minority, incompatible because it is too rigid: section 2 fails to admit of any exceptions. Making people like Mr Nicklinson, Mr Lamb and Martin (the appellants in this case) live on is itself a form of cruelty: “The current universal prohibition […] is a disproportionate interference with their right to choose the time and manner of their deaths. It goes much further than is necessary to fulfil its stated aim of protecting the vulnerable. It fails to strike a fair balance between the rights of those who have freely chosen to commit suicide but are unable to do so without some assistance and the interests of the community as a whole.” (Lady Hale, para 317)

The courts have already created a certain leeway, a certain flexibility, which might be seen as a ‘slippery slope’. I summarise how Lord Sumption puts it at para 255:

  1. The state is not entitled to intervene to prevent a person of full capacity who has arrived at a settled decision to take his own life from doing so. However, such a person does not have a right to call on a third party to help him to end his life.
  2. A person who is legally and mentally competent is entitled to refuse food and water, and to reject any invasive manipulation of his body or other form of treatment, including artificial feeding, even though without it he will die. If he refuses, medical practitioners must comply with his wishes. A patient may express his wishes on these points by an advance decision (or “living will”).
  3. A doctor may give objective advice about the clinical options (such as sedation and other palliative care) which would be available if a patient were to reach a settled decision to kill himself. The doctor is not criminally liable merely because he agrees in advance to palliate the pain and discomfort involved should the need for it arise.
  4. Medical treatment intended to palliate pain and discomfort is not unlawful only because it has the incidental consequence, however foreseeable, of shortening the patient’s life.
  5. Prosecutions for encouraging or assisting suicide are rare. Between 1998 and 2011, a total of 215 British citizens appear to have committed suicide with medical assistance at the Dignitas clinic in Switzerland. Not one case has given rise to prosecution. Although cases of assisted suicide or euthanasia are periodically reported to the police, there has been only one recent prosecution for assisting suicide.

And the law currently draws a horribly artificial divide between ‘killing’ and ‘letting die’, which means that those people who can breathe without artificial help are denied a choice which is available to those who cannot breath alone (turning off life support is deemed to be ‘letting die’ and is therefore ‘OK’).

So why not change the law and make it clear that – just sometimes – a person should be allowed help to die? Lady Hale points out that it would not be beyond the wit of a legal system to devise a process for identifying those few people who should be allowed assistance to end their own lives. There would have to be essential safeguards. Her words echo much of what Tim Helme and I wrote more than 20 years ago: see Helme and Padfield’s Setting Euthanasia on the Level (1993) XV (1) Liverpool Law Review 75-92 (PDF).

(P.S. If you are a prospective student thinking about studying law, I recommend a visit to the Supreme Court: it has excellent displays as well as a great café. But check its website first to see what’s going on.)

Nicola Padfield

About Nicola Padfield

Nicola Padfield MA, Dip Crim, DES became Master of Fitzwilliam College in October 2013. She is a Reader in Criminal and Penal Justice at the Law Faculty, University of Cambridge, and has been a Fellow of Fitzwilliam College since 1991.

1 Comment

  1. Unfortunately the distinction between “general” and “universal” is impossible to make in practice in such a way that enables some individuals to take their own lives while preserving the principle which protects the vulnerable from pressure to do so, or avoiding the emergence of a culture in which it is considered the “right” thing to do.

    Lady Hale’s view, that “it would not be beyond the wit of a legal system to devise a process” will always come up against the objection that to create categories of persons entitled such treatment will quickly be regarded as indefensible discrimination, and once the principle is established for one person it must be made available for all.

    The only way to protect the vulnerable is to enshrine the priority of life over death in our legal system, and that is what s.2 of the Suicide Act does. It has remained on the statute book for so long because the alternative is the monetisation of human life, by which I mean that vulnerable persons will increasingly be assessed with reference to their cost to the health system, or the size of their estate, rather than having an absolute right to life, once physician-assisted suicide become a “right”, and following it very swiftly down the same path, involuntary euthanasia.

    An absolute right to life must always take priority over the desire of some to end it with the aid of a physician, or the desire of the state to minimise the cost of long-term treatment, or the desire of beneficiaries under the will to have access to the estate.

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>