{"id":232,"date":"2012-03-18T21:46:43","date_gmt":"2012-03-18T21:46:43","guid":{"rendered":"http:\/\/www.kslr.org.uk\/blogs\/humanrights\/?p=232"},"modified":"2022-06-08T12:06:37","modified_gmt":"2022-06-08T12:06:37","slug":"assisted-suicide","status":"publish","type":"post","link":"https:\/\/blogs.kcl.ac.uk\/kslr\/2012\/03\/18\/assisted-suicide\/","title":{"rendered":"Assisted Suicide"},"content":{"rendered":"

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).\u00a0 What seems to be a fairly unquestionable right, in fact carries with it the weight of controversy and uncertainty. \u2018Not only is the right to life protected by law but the State should take steps to safeguard life;\u2019[1]<\/a> a statement made by Philip Havers QC and Caroline Neenan, two practising barristers from top Chambers 1 Crown Office Row. \u00a0This 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.\u00a0 The main focus of this article will be the impact of human rights, in particular Article 2, on euthanasia and assisted suicide.<\/p>\n

 <\/p>\n

Article 2 of the ECHR states the following:<\/p>\n

\u2018Everyone’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.\u2019<\/p>\n

 <\/p>\n

For clarification, the Article further explains that:<\/p>\n

\u2018Deprivation 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:<\/p>\n

(a) in defence of any person from unlawful violence;<\/p>\n

(b) in order to effect a lawful arrest or to prevent escape of a person lawfully detained;<\/p>\n

(c) in action lawfully taken for the purpose of quelling a riot or insurrection.<\/p>\n

 <\/p>\n

By the very words that \u2018everyone\u2019s right to life shall be protected by law\u2019, it is easy to infer that the State has a positive duty to protect its people\u2019s lives.\u00a0 This is, understandably, the interpretation taken by Havers and Neenan in the above statement, as cases including Osman v UK<\/em>[2]<\/a> and Andronicou v Cyprus<\/em>[3]<\/a> illustrate that this is the way the ECtHR has interpreted it too.\u00a0 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\u2019s custody or when the State has enough information showing that the person\u2019s life is in danger).\u00a0 It is this second duty which patients at the end of their lives experiencing severe medical conditions fall under.<\/p>\n

 <\/p>\n

The court\u2019s interpretation, in my opinion, seems bizarre.\u00a0 In unraveling the State\u2019s duty under Article 2, the first duty mentioned above seems reasonable, though its source is debatable.\u00a0 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.\u00a0 It is through investigating a death that it can be decided whether the right to life has been respected or not.<\/p>\n

 <\/p>\n

The second duty, to protect the life of persons, is more questionable.\u00a0 Where this duty stems from is doubtful, as Article 2 establishes the State\u2019s duty to protect its people\u2019s right to life<\/em>, not life itself.\u00a0 The distinction, which will be further explored below, is small and subtle;\u00a0 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.<\/p>\n

 <\/p>\n

In relation to end of life cases, Article 2 is often used as an argument against euthanasia and assisted suicide.\u00a0 It is frequently argued that the State\u2019s positive duty inferred from this Article is to protect the person\u2019s life, sometimes even from the person himself.\u00a0 Great philosophers, including Bentham, support this argument, which is based on legal paternalism.\u00a0 In protecting its people\u2019s lives, the State consequentially criminalizes euthanasia and similar acts.\u00a0 However, according to a strict interpretation of Article 2, the State\u2019s duty is only to protect their right<\/em> to life, therefore, if the patient is given this right, and the right is respected, the State\u2019s duty ends there.\u00a0 It is not, in my opinion, their duty to protect our lives and to keep us alive.\u00a0 To ascertain whether the right to life has been respected, I put forward that the following conditions and tests must be met:<\/p>\n

    \n
  1. \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 i.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Freedom from coercion and pressure;<\/li>\n
  2. \u00a0\u00a0\u00a0\u00a0\u00a0 ii.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Informed and educated decision;<\/li>\n
  3. \u00a0\u00a0\u00a0\u00a0 iii.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Healthy psychological state.<\/li>\n<\/ol>\n

    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.\u00a0 Furthermore, these conditions need further elaboration, but this is not to be dealt with in this article.\u00a0 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.\u00a0 In contrast, the European Humanist Federation (EHF) affirmed in 2002 that euthanasia contradicted Article 2 and compared it to the death penalty[4]<\/a>.\u00a0 This, it seems to me, is going too far.<\/p>\n

     <\/p>\n

    To elaborate my argument further, I will compare euthanasia to the act of suicide.\u00a0 Suicide ceased to be a criminal act in the UK through the passing of the Suicide Act 1961.\u00a0 Keown[5]<\/a> strongly agrees with the judges in Pretty v UK<\/em>[6]<\/a>, who observed that, although suicide was decriminalised by the Suicide Act, \u2018this 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.\u2019[7]<\/a>\u00a0 Parliament\u2019s reasons for its lenience towards suicide seem irrelevant here, because the end result is that it has resulted in discrimination.\u00a0 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.\u00a0 Lord Bingham in Pretty<\/em>[8]<\/a> 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.\u00a0 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.<\/p>\n

     <\/p>\n

    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.\u00a0 More importantly, surely, since Article 2 is no barrier to committing suicide, it can neither be a barrier to assisted suicide and euthanasia.\u00a0 If the State had a real positive duty to protect people\u2019s lives (as opposed to right of life) in accordance to Article 2, then suicide would still be classified as criminal.\u00a0 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<\/em> to life has been respected i.e. when the suggested test has been met.<\/p>\n

     <\/p>\n

    In terms of arguments relating to euthanasia and its legality, much deliberation is centered on the idea of a \u2018right to die\u2019.\u00a0 Unfortunately, no such right exists, as it may have serious implications within a range of legal areas. The Law Lords in Pretty<\/em>[9]<\/a> held that Article 2 could not be interpreted to include a right to die without seriously distorting its wording and meaning.\u00a0 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.\u00a0 The first human right to look at is Article 2.\u00a0 As argued above, the State\u2019s duty is only to protect its people\u2019s right to life; it is not there to protect them from voluntary death.\u00a0 So should someone choose to die under the right circumstances i.e. in meeting the test set above, then they should be allowed to.<\/p>\n

     <\/p>\n

    The next relevant right is Article 8, which encompasses our right to respect for private and family life.\u00a0 By its very nature, this right no doubt includes death, as I am unable to think of anything more personal.\u00a0 The Court in Pretty<\/em>[10]<\/a> 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 \u2018necessary in democratic society\u2019 and that national authorities enjoyed a margin of appreciation.\u00a0 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.\u00a0 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\u2019s requirements to end their life.\u00a0 Should this happen, Article 8 would protect someone\u2019s choice to die and Article 8(2) could not be used to justify an infringement of the right to respect for private life.<\/p>\n

     <\/p>\n

    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\u2019s reach; a right that is so personal that no outside paternal body should influence.\u00a0 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.<\/p>\n

     <\/p>\n

    The Archbishop of Wales (on behalf of the Catholic Bishops\u2019 Conference of England and Wales) stated that \u2018the 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.\u2019[11]<\/a>\u00a0 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.\u00a0 During an interview with Channel 4 News, Terry Pratchett, a sufferer of Alzheimer\u2019s disease, made the following poignant remark; \u2018Why does the government think it owns my life?\u2019\u00a0 This, I believe, is the tragic result of the interpretation of Article 2; the government takes ownership of our lives and essentially our death.\u00a0 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 \u2018right to die\u2019.\u00a0 This demonstrates a change in the Court\u2019s approach in even admitting that Mr. Nicklinson has a case in terms of a right to die.\u00a0 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.<\/p>\n

     <\/p>\n

    \n

     <\/p>\n

    \n
    \n

    [1]<\/a> Havers, P and Neenan, C; \u2018Impact of the European Convention on Human Rights on medical law\u2019; Postgrad Med J 2002;78:573\u2013574<\/p>\n<\/div>\n

    \n

    [2]<\/a> [1998] EHRR 101<\/p>\n<\/div>\n

    \n

    [3]<\/a> [1997] 25 EHRR 491<\/p>\n<\/div>\n

    \n

    [4]<\/a> Debate on Voluntary Euthanasia in the Parliamentary Assembly of the Council of Europe ; 4 October 2002; EHF press release<\/p>\n<\/div>\n

    \n

    [5]<\/a> John Keown, ‘European Court of Human Rights: Death in Strasbourg-assisted suicide, the Pretty<\/em> case, and the European Convention on Human Rights’ [2003] 1 International Journal of Constitutional Law<\/em> 722\u2013730<\/p>\n<\/div>\n

    \n

    [6]<\/a> [2002] ECHR 427<\/p>\n<\/div>\n

    \n

    [7]<\/a> John Keown, ‘European Court of Human Rights: Death in Strasbourg-assisted suicide, the Pretty<\/em> case, and the European Convention on Human Rights’ [2003]<\/p>\n<\/div>\n

    \n

    [8]<\/a> [2002] ECHR 427<\/p>\n<\/div>\n

    \n

    [9]<\/a> [2002] ECHR 427<\/p>\n<\/div>\n

    \n

    [10]<\/a> [2002] ECHR 427<\/p>\n<\/div>\n

    \n

    [11]<\/a> At the Intervention of the Catholic Bishops’ Conference of England and Wales pursuant to article 36<\/p>\n

     <\/p>\n

    By Miray Gorgy<\/p>\n

    King’s College London<\/p>\n<\/div>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

    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).\u00a0 What seems to be a fairly unquestionable right, in fact carries with it the weight of controversy and uncertainty. \u2018Not only is the right to life protected by… More Assisted Suicide<\/span><\/a><\/p>\n","protected":false},"author":260,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[164],"tags":[],"class_list":["post-232","post","type-post","status-publish","format-standard","hentry","category-forum-articles"],"_links":{"self":[{"href":"https:\/\/blogs.kcl.ac.uk\/kslr\/wp-json\/wp\/v2\/posts\/232","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.kcl.ac.uk\/kslr\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.kcl.ac.uk\/kslr\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.kcl.ac.uk\/kslr\/wp-json\/wp\/v2\/users\/260"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.kcl.ac.uk\/kslr\/wp-json\/wp\/v2\/comments?post=232"}],"version-history":[{"count":1,"href":"https:\/\/blogs.kcl.ac.uk\/kslr\/wp-json\/wp\/v2\/posts\/232\/revisions"}],"predecessor-version":[{"id":2095,"href":"https:\/\/blogs.kcl.ac.uk\/kslr\/wp-json\/wp\/v2\/posts\/232\/revisions\/2095"}],"wp:attachment":[{"href":"https:\/\/blogs.kcl.ac.uk\/kslr\/wp-json\/wp\/v2\/media?parent=232"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.kcl.ac.uk\/kslr\/wp-json\/wp\/v2\/categories?post=232"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.kcl.ac.uk\/kslr\/wp-json\/wp\/v2\/tags?post=232"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}