The Supreme Court will decide
tomorrow whether there is a right to die so that those who are physically
unable to end their own lives can receive assistance from individuals and medical
professionals.
This article sets out the
background to the case and the issues. Part 2 of the article will discuss the
Supreme Court’s judgment.
The Issue
Some individuals who have
permanent and catastrophic physical disabilities decide (with full mental
capacity) that they want to end their own lives. They are unable to end their
lives because of their disability and seek assistance, either from individuals such
as relatives, or from medical professionals, to end their lives. However, the
law provides that it is a criminal offence to assist another to commit suicide.
Section 2(1) of the
Suicide Act 1961 provides it is an offence for a person to do an act
capable of encouraging or assisting the suicide or attempted suicide of another
person, if that person intends to encourage or assist suicide or an attempt at
suicide. The maximum sentence for the offence is 14 years imprisonment.
Under section 2(4) of
the Act, a prosecution for encouraging or assisting suicide may only be
brought with the permission of the Director of Public Prosecutions (DPP), the
head of the Crown Prosecution Service (CPS).
On the face of it, the law is
clear: helping others to commit suicide is a very serious offence. Suicide
itself is not an offence, under section 1 of the 1961
Act.
Individuals who want assistance
to end their lives have argued that article 8 of the European Convention on
Human Rights (ECHR) permits them to determine how their lives should end. Article
8(1) of the ECHR sets out the right to a private life and is part of the
law in the United Kingdom under the Human Rights Act
1998. It provides: ‘Everyone has the right to respect for his private and
family life, his home and his correspondence’. Those wanting to end their lives
argue that self-determination is an important part of their private lives; therefore
to prevent their determination to end their lives by denying them assistance to
die breaches their human rights. Accordingly they argue the Suicide Act 1961
should be changed or not enforced to be human rights compliant.
The challenge for the courts has
been to try and determine where the law actually lies.
Previous Cases
The first major case in this area
was R (Pretty) v Director of Public Prosecutions
(2001). Dianne Pretty suffered from motor neurone disease and was unable to end her own
life. Her husband was willing to assist her with her final wish. Assisting his
wife would amount to assisting suicide under the 1961 Act. Pretty therefore
sought an assurance from the DPP to the effect that he would not allow her
husband to be prosecuted. When the DPP refused to give such an assurance Pretty
brought a claim arguing that her human rights would be breached in not allowing
her to be assisted. She argued, amongst other things, that the right to life
under article 2(1) of the ECHR included a right to die, and that she should be
able to determine when her life ended under article 8(1) of the ECHR, as
discussed above. The House of Lords (the previous name for the Supreme Court)
dismissed her arguments, holding that there was no right to die and that
article 8 did not include a right to determine when to die. The court held that
even if it was wrong about article 8, and there was a right to determine when
to die, then the current law in the Suicide Act 1961 was justified under
article 8(2) as being in accordance with the law and necessary in a democratic
society to protect the vulnerable from abuse should be law be changed to allow
assisted suicide; the law in the Suicide Act was proportionate to the aim of
protecting the vulnerable in society.
Pretty appealed the decision to
the European Court of Human Rights in Strasbourg (Pretty v United Kingdom (2002)). The
European Court agreed with the House of Lords but for different reasons. It
held that preventing Pretty from determining when to end her life did interfere
with her rights under article 8(1) because self determination formed a part of
an individual’s private life. However, that interference was justified under article
8(2) for the reasons the House of Lords gave.
The next case to deal with these
issues was R (Purdy) v Director of Public Prosecutions
(2009). Debbie Purdy suffered from multiple sclerosis. There would come a time when
life would be unbearable for her. She wanted to end her life in due course
while she was still physically able to do so. By this stage she would require
assistance, so she planned to travel to a country where suicide was lawful
(such as to the the Dignitas clinic in Switzerland). Her husband was willing to
help her make the journey but she was concerned he would then be prosecuted
under the 1961 Act for assisting suicide. She sought information from the DPP
on the factors he would take into account in deciding whether to prosecute, but
he refused. She brought a claim relying on article 8(1). She argued that the
Suicide Act interfered with her private life and breached her rights because
the restrictions imposed on her private life were insufficiently defined in law.
It was argued the law was insufficiently defined since it was unclear when the
DPP would allow a prosecution under section 2(4) of the 1961 Act. The House of
Lords agreed: article 8(2) required restrictions on human rights (including the
right to determine when one’s life will end) to be in accordance with the law.
This meant it had to be accessible and sufficiently precise so that individuals
could understand its scope and foresee the consequences of their actions so
they could avoid breaking the law. However, the DPP’s policy was insufficiently
precise and individuals could not foresee how it would apply to them. Therefore
the DPP had to clarify his policy. That revised policy can be viewed here.
The Current Case
The two previous cases set up the
arguments in the current case, R (Nicklinson) v Ministry of Justice.
This concerns three conjoined cases. The first is brought on behalf of Tony
Nicklinson, who recently died. The second is brought by Paul Lamb. Lamb is and
Nicklinson was unable to commit suicide even with assistance and would require
another to terminate their lives. The arguments on their behalf contend that a
blanket ban against assisted suicide breaches their right under article 8(1) to
determine when they die and is not proportionate. The third claim is brought by
an individual known only as ‘Martin’. He can end his own life with assistance
but has no close relatives able to assist him. He would require the assistance
of a medical professional and is arguing that the DPP’s guidance on when
prosecutions will be brought is still unclear in relation to health
professionals.
All three were unsuccessful in
the High Court. In the Court
of Appeal, Nicklinson’s and Lamb’s appeals were dismissed. The Court of Appeal held that the ban was proportionate for the same reasons
given in Pretty; it was inappropriate
to give rights beyond article 8(1) because it would be against the will of
Parliament, who had expressed its opposition to assisted suicide through the
Suicide Act 1961. It was for Parliament to change the law, not the courts.
Martin’s appeal was successful.
The Court of Appeal agreed that the DPP’s policy was not sufficiently clear in
relation to medical professionals assisting suicide. The DPP appealed this decision.
The Supreme Court has considered all the issues together.
Thoughts on the Case
It is likely that the Supreme
Court will agree with the Court of Appeal. It would be surprising if it
concludes there is a right to die. What is more likely is that it confirms the
issue is for Parliament to decide, not the courts. Nevertheless, the Court is
taking the matter very seriously. It sat as a panel of nine. Only the most
important legal cases demand a panel of nine Supreme Court Justices. Ordinarily
cases are heard by five Justices. More important cases are heard by seven Justices.
The most important cases of all are heard by nine Justices.
If, as predicted, the Supreme
Court decides tomorrow that the matter is an issue for Parliament, it will be
down to Parliament to decide if it will legislate to allow assisted suicide. It
may get the opportunity to consider that later this year, when Lord Falconer’s Assisted
Dying Bill receives further consideration. This is based on the system in
Oregon, United States, where assisted suicide is permissible.
What are your thoughts? Should we
allow assisted suicide?
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