King's Student Law Review

The right to life; this is often thought to be the most fundamental human right, protected by Article 2 of the European Convention on Human Rights (ECHR).  What seems to be a fairly unquestionable right, in fact carries with it the weight of controversy and uncertainty. ‘Not only is the right to life protected by law but the State should take steps to safeguard life;’[1] a statement made by Philip Havers QC and Caroline Neenan, two practising barristers from top Chambers 1 Crown Office Row.  This article will explore the truth and reality behind this statement, how far this duty is placed on the State, and will further question whether there is a correlating right to die.  The main focus of this article will be the impact of human rights, in particular Article 2, on euthanasia and assisted suicide.

 

Article 2 of the ECHR states the following:

‘Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.’

 

For clarification, the Article further explains that:

‘Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

(a) in defence of any person from unlawful violence;

(b) in order to effect a lawful arrest or to prevent escape of a person lawfully detained;

(c) in action lawfully taken for the purpose of quelling a riot or insurrection.

 

By the very words that ‘everyone’s right to life shall be protected by law’, it is easy to infer that the State has a positive duty to protect its people’s lives.  This is, understandably, the interpretation taken by Havers and Neenan in the above statement, as cases including Osman v UK[2] and Andronicou v Cyprus[3] illustrate that this is the way the ECtHR has interpreted it too.  The ECtHR has found that Article 2 imposes two duties on the State: (i) a duty to investigate following a death; and (ii) a duty to positively protect the life of a person when it is found to have been reasonable (for example when a person is in the State’s custody or when the State has enough information showing that the person’s life is in danger).  It is this second duty which patients at the end of their lives experiencing severe medical conditions fall under.

 

The court’s interpretation, in my opinion, seems bizarre.  In unraveling the State’s duty under Article 2, the first duty mentioned above seems reasonable, though its source is debatable.  The duty to investigate a death does not flow directly from Article 2; it is merely a way to ascertain whether Article 2 has been infringed.  It is through investigating a death that it can be decided whether the right to life has been respected or not.

 

The second duty, to protect the life of persons, is more questionable.  Where this duty stems from is doubtful, as Article 2 establishes the State’s duty to protect its people’s right to life, not life itself.  The distinction, which will be further explored below, is small and subtle;  nonetheless it exists and becomes crucial in its interpretation when it comes to applying Article 2 to cases where a person is reaching the end of his life in hospital.

 

In relation to end of life cases, Article 2 is often used as an argument against euthanasia and assisted suicide.  It is frequently argued that the State’s positive duty inferred from this Article is to protect the person’s life, sometimes even from the person himself.  Great philosophers, including Bentham, support this argument, which is based on legal paternalism.  In protecting its people’s lives, the State consequentially criminalizes euthanasia and similar acts.  However, according to a strict interpretation of Article 2, the State’s duty is only to protect their right to life, therefore, if the patient is given this right, and the right is respected, the State’s duty ends there.  It is not, in my opinion, their duty to protect our lives and to keep us alive.  To ascertain whether the right to life has been respected, I put forward that the following conditions and tests must be met:

1.        i.         Freedom from coercion and pressure;
2.       ii.         Informed and educated decision;
3.      iii.         Healthy psychological state.

It is true that ensuring the test has been met is hard, and some patients may fall through the cracks of the system, but this is not to say that the test is incorrect.  Furthermore, these conditions need further elaboration, but this is not to be dealt with in this article.  Should the test above be met, I believe that what the patient then wishes to do with their right to life is then up to them.  In contrast, the European Humanist Federation (EHF) affirmed in 2002 that euthanasia contradicted Article 2 and compared it to the death penalty[4].  This, it seems to me, is going too far.

 

To elaborate my argument further, I will compare euthanasia to the act of suicide.  Suicide ceased to be a criminal act in the UK through the passing of the Suicide Act 1961.  Keown[5] strongly agrees with the judges in Pretty v UK[6], who observed that, although suicide was decriminalised by the Suicide Act, ‘this was not out of recognition of a right to commit suicide. The policy of the law remained firmly opposed to suicide, as the continuing prohibition on assisting suicide made clear.’[7]  Parliament’s reasons for its lenience towards suicide seem irrelevant here, because the end result is that it has resulted in discrimination.  The real question is this: how can it be right for the State to decriminalise suicide for able bodied people, but continue to criminalise assisted suicide for disabled people who are physically unable to commit the act themselves, and so request for help in doing so.  Lord Bingham in Pretty[8] suggested that a blanket prohibition on assisted suicide treats everyone, able bodied or disabled, equally and that the law cannot be criticised as discriminatory because it applies to all.  Lord Bingham, however, has manoeuvred around the problem that the laws on suicide as a whole are discriminatory, and not just the law on assisted suicide.

 

To put it bluntly, I have no doubt that the result is discriminatory against the disabled; against those who are physically unable to commit the act themselves, but want the same result as an able bodied person.  More importantly, surely, since Article 2 is no barrier to committing suicide, it can neither be a barrier to assisted suicide and euthanasia.  If the State had a real positive duty to protect people’s lives (as opposed to right of life) in accordance to Article 2, then suicide would still be classified as criminal.  For the sake of consistency, therefore, UK law has one of two options: (i) to criminalize suicide again (an unlikely option since Parliament has lengthily deliberated the topic and already altered the law), or (ii) to permit euthanasia and assisted suicide in situations where the right to life has been respected i.e. when the suggested test has been met.

 

In terms of arguments relating to euthanasia and its legality, much deliberation is centered on the idea of a ‘right to die’.  Unfortunately, no such right exists, as it may have serious implications within a range of legal areas. The Law Lords in Pretty[9] held that Article 2 could not be interpreted to include a right to die without seriously distorting its wording and meaning.  However, if we take account of our other human rights, perhaps the overlap between them imply a right to die and protect us from the State and the courts who tell us that we have no right to chose over the matter.  The first human right to look at is Article 2.  As argued above, the State’s duty is only to protect its people’s right to life; it is not there to protect them from voluntary death.  So should someone choose to die under the right circumstances i.e. in meeting the test set above, then they should be allowed to.

 

The next relevant right is Article 8, which encompasses our right to respect for private and family life.  By its very nature, this right no doubt includes death, as I am unable to think of anything more personal.  The Court in Pretty[10] admitted that Article 8 was engaged in the case of assisted suicide, but felt that a ban on assisted suicide was justified under Article 8(2) as ‘necessary in democratic society’ and that national authorities enjoyed a margin of appreciation.  The Court observed the UK law on assisted suicide and declared that States were entitled to use criminal law to regulate such activities, and that the more serious the harm involved, the more heavily public health and safety weighed against individual autonomy.  In answer to this, I have argued above that, logically, the UK law on assisted suicide should be altered to allow those who meet the test’s requirements to end their life.  Should this happen, Article 8 would protect someone’s choice to die and Article 8(2) could not be used to justify an infringement of the right to respect for private life.

 

The implication of these two Articles (2 and 8 ) is that alongside a right to life we may also have an implied right to die; a human right that should be out of the State’s reach; a right that is so personal that no outside paternal body should influence.  Because of this, euthanasia and assisted suicide should not be criminalized, and the UK should follow the footsteps of other European countries such as the Netherlands, and some USA States, for example Washington and Oregon.

 

The Archbishop of Wales (on behalf of the Catholic Bishops’ Conference of England and Wales) stated that ‘the ending of a life is not a private matter, but is a legitimate concern of public authorities whose duty is to protect the lives of citizens.’[11]  However, to make that statement to a terminally ill patient who wishes to die in a pain-free and dignifying manner is distressing and heartbreaking.  During an interview with Channel 4 News, Terry Pratchett, a sufferer of Alzheimer’s disease, made the following poignant remark; ‘Why does the government think it owns my life?’  This, I believe, is the tragic result of the interpretation of Article 2; the government takes ownership of our lives and essentially our death.  It was, somewhat controversially decided this week that Tony Nicklinson, an ex-rugby player with locked-in syndrome, has succeeded in the High-Court who have permitted him to proceed with his case of ‘right to die’.  This demonstrates a change in the Court’s approach in even admitting that Mr. Nicklinson has a case in terms of a right to die.  We are yet to see how this case pans out in Court, but should Mr. Nicklinson succeed, it would be a huge advancement in UK law.