How the Human Rights Act has helped the law on assisted suicide in England and Wales develop, and why we still need it

In this post, Nataly Papadopoulou, of Leicester Law School, considers the important ways in which the Human Rights Act shapes one of the most sensitive issues that any person could encounter in life - assisted suicide - and demonstrates the importance of retaining the protections which the Act provides. 

Background     

      

Although suicide is no longer a crime in England and Wales, section 2(1) of the Suicide Act 1961 established that to assist or encourage another to commit suicide is a criminal offence (‘the prohibition on assisted suicide’). It is unsurprising that this is the subject of intense debate and controversy.      

     

Horrible diseases cause suffering, indignity, loss of autonomy and prompt some individuals to seek to control how and when they die. The impact the prohibition on assisted suicide has on these individuals and their loved ones, but also on healthcare professionals, the criminal justice system, and society in general is profound.    

 

Police investigations continue for people like Geoffrey Whaley, who was assisted by his wife, Ann, to travel to Switzerland to end his life. Dignitas, a Swiss clinic, reported that Britons hold second place for ‘accompanied suicides’ between 1998-2019. Individuals who travel abroad to die choose an expensive ‘option’, one that involves a number of hurdles, and of course the risk of prosecution.      

 

The option of committing suicide, although not a crime, is rightly not a desirable or acceptable option. Others stop taking food (‘self-starvation’), a prolonged and distressing exercise, one taken by high-profile campaigners Tony Nicklinson and Debbie Purdy. There are media reports of ‘euthanasia kits’ or illegal drugs or gas used without medical supervision or the protection of the law for individuals to take control of their deaths. Meanwhile, the situation in other jurisdictions is different. Legislation is expected in New Zealand, while debates are currently taking place in Ireland, Portugal, Spain, and in the US.      

 

Against this backdrop, the important role the Human Rights Act (HRA) 1998 has had on the development of the law on assisted suicide in England and Wales, as well as why we still need it, is noted below.

 

The Human Rights Act and assisted suicide     

     

There is no doubt that a regulated framework involving legal and medical safeguards, reviewing and monitoring mechanisms is preferrable than the current domestic situation described above. Yet the prohibition on assisted suicide remains in place, with several Private Members’ Bills failing to convince Parliament on the need for reform. 

     

A shaft of light for those impacted by the law and its practice is the HRA. The HRA has been the most influential piece of legislation for assisted suicide in England and Wales. The HRA has contributed towards mitigating the harshness of the prohibition on assisted suicide by recognising that it interferes with Article 8 of the European Convention on Human Rights (ECHR). The HRA has prompted the Director of Public Prosecutions (DPP) to create an offence-specific guidance for assisted suicide. The HRA gives the opportunity to claimants and courts to voice their views for Parliament to consider.    

     

Although progress has been slow, the HRA has helped the law on assisted suicide develop, and has given hope to those who fight for reform. Below, I provide a summary of the domestic case law to highlight the positive impact the HRA has had, and argue that English judges should make greater use of their power under section 4(2) HRA and issue a declaration of incompatibility if the find that the law is incompatible with human rights. This may prompt Parliament to actively engage with the matter of legalising and regulating, giving choice to those who want it to control the manner and timing of their deaths while creating a robust legal and procedural framework.

 

The Pretty case          

     

The first to challenge the compatibility of the prohibition on assisted suicide with the HRA was Mrs Diane Pretty who suffered from motor neurone disease. Unable to end her own life, she asked for prosecutorial immunity for her husband who was willing to assist her. The DPP refused as he had no power to ‘grant an advance pardon’ for a criminal offence.[1] The judicial review of the decision failed, and the House of Lords found no violation of the ECHR.[2]

 

The most significant facet of her case stems from the decision of the European Court of Human Rights (ECtHR) which considered her application in April 2002. The ECtHR disagreed with the House of Lords and found, for the first time, that Article 8 was engaged by the prohibition of assisted suicide. It found that Mrs Pretty was prevented ‘from exercising her choice to avoid what she considers will be an undignified and distressing end to her life’.[3] The ECtHR, however, found that this interference was justified by the need to protect the weak and vulnerable, and that the UK enjoyed a wide margin of appreciation in regulating assisted suicide.[4] The decision is nonetheless important as it ensured that, from that point onwards, the prohibition of assisted suicide prima facie interfered with Article 8 and the right of individuals to control the manner and timing of their deaths. Significantly, it ensured that the UK and other Member States have legitimate, proportionate, and necessary reasons for interfering with such intimate right.[5]

 

The Purdy case          

 

In July 2009, the House of Lords accepted for the first time that the prohibition on assisted suicide in S.2(1) interferes with Article 8, confirming what the ECtHR held already. Ms Purdy suffered from progressive multiple sclerosis, and unlike Mrs Pretty, did not seek immunity from the prohibition of assisted suicide. Rather, she sought clarification on the likelihood of prosecution of her husband if he were to assist her to die. It was this rather more specific claim that led the House of Lords to find that section 2(4) of the Suicide Act 1961 (consent required for the prosecution by the DPP) did not satisfy the ‘legality requirement’ in Article 8(2), and specifically that it did not allow Ms Purdy to make a decision affecting her private life, failing the test of accessibility and foreseeability.[6]    

 

On this basis, the House of Lords ordered the DPP to create an offence-specific policy on which prosecutors will rely to decide whether a case should be brought for a reported assisted suicide.[7] This is, in practical terms, the most significant development for the law on assisted suicide, one that was made possible by the HRA. Though the policy does not decriminalise assisted suicide, and indeed creates no right to assisted suicide, it does recognise the harshness of the prohibition, providing prosecutors with the means to mitigate an absolute rule, and recognising the key role of compassion when suicides are assisted.[8]

     

In October 2014, the DPP revised the policy following the decision of the UK Supreme Court (UKSC) in Nicklinson.[9] The change seems to indicate that a healthcare professional providing assistance is more likely to be prosecuted if the patient was ‘in his care’ at the time. 

 

The Nicklinson case - changing judicial views, and the declaration of incompatibility     

 

In June 2014, in a highly publicised decision on assisted suicide, the UKSC decided against making a declaration of incompatibility of section 2(1). The case, however, highlights changing judicial attitudes towards assisted suicide,[10] but sadly also a misconceived idea of the power judges have under section 4(2) of the HRA. There were six different judgments relating to the case, the issues complicated and involving applicants joining at different stages and with different claims. Key to the discussion here is the UKSC’s judgment which had to deal with two questions: whether the DPP’s policy was lawful,[11] and whether section 2(1) breached Article 8. The UKSC found that the policy was lawful, and that section 2(1) did not breach Article 8.

     

However, the judgment is important for several reasons. Perhaps the most obvious one is the two dissenting judgments by Lady Hale and Lord Kerr, who found section 2(1) incompatible with Article 8 for the first time in the history of these legal challenges. But beyond this, at least three of the other Justices (Lords Neuberger, Mance, and Wilson) were openly critical towards the law and practice[12] and offered proposals for how the law could be reformed.[13] This left many to wonder why a declaration was not made on a 5:4 basis, considering the clear dissatisfaction of the three Justices with regards to the prohibition on assisted suicide.

     

As many others have argued, this is likely down to a misconceived idea of the power and role of section 4(2) of the HRA. Contrary to what most Justices have said about the need to give Parliament the opportunity to review the law first or leave the matter entirely to Parliament, section 4(2) does exactly that: creates a dialogue between the domestic courts and Parliament through a power vested on the courts by Parliament itself. This power on senior courts is anyway limited, and unlike other jurisdictions, it has no impact on the validity of a particular provision. This very fact does not explain the reluctance of, at least, Lords Neuberger, Mance, and Wilson to join the dissenters and issue a declaration in response to the serious concerns expressed in their judgments on the functionality and rationale of the prohibition on assisted suicide.[14]       

 

Many describe the case as one that sends a clear message to Parliament to review the law. Although Parliament has indeed since reviewed a couple of Private Members’ Bills, none have been given proper scrutiny or been referred to an independent committee as in 2005. An important point is also that none of the Bills that Parliament has so far ‘reviewed’ will have covered the applicants in Nicklinson. Overall, the judgment recognises the ‘flawed nature of the current universal prohibition of assisted suicide’, and raises difficult human rights questions especially in relation to the role of domestic courts under the HRA.[15] The fact remains, nonetheless, that none of this would have been possible without the HRA.

 

The Conway case     

 

In 2018, the UKSC refused to allow an appeal by Mr Noel Conway on the grounds that his case had low chances of success. Previously, the High Court,[16] with which the Court of Appeal agreed,[17] found that the interference of section 2(1) with the claimant’s Article 8 was justified, this time also citing two additional reasons: the sanctity of life, and the need to promote trust between doctors and patients. This is a worrying expansion of the justifications put forward by the government. Since, three more applicants have seen their cases dismissed by courts, perhaps indicating that focus must now turn to Parliament.

 

Concluding remarks          

 

Although the prohibition on assisted suicide remains in place, the HRA has allowed the law to develop. 

 

In recognising that the prohibition of assisted suicide interferes with Article 8, the HRA is keeping the government accountable in justifying the interference with the important right of individuals to control the manner and timing of their deaths. 

 

This leaves the door open for claimants to challenge the justifications put forward by the government, which although, as seen in Conway, seem to expand, they remain open for challenge of their compatibility with the HRA.

 

Further, the HRA has mitigated the harshness of the prohibition by allowing prosecutors to exercise their discretion for assisted suicides cases. The offence-specific policy allows for a balancing exercise to take place to recognise that a majority of assistances take place on compassionate grounds.      

 

Whether prosecutorial discretion is the best way forward is doubtful, with the ball now back to Parliament to consider whether, and if so, how to change the law. Interested parties, including claimants and their families, campaign groups, 18 Police and Crime Commissioners, certain prominent MPs, and some recent parliamentary debates,[18] are calling for a governmental inquiry into assisted suicide, a call that must not be ignored.      

 

Overall, the HRA is there to remind everyone the importance of recognising the rights and needs of those who choose death over life, keep courts and Parliament under scrutiny, but also give hope to those directly impacted by the prohibition that a change may be possible in the near future.

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[1] R (on the application of Pretty) v DPP [2001] EWHC Admin 788 [2], [8]-[9], [33].

[2] R (on the application of Pretty) v DPP [2001] UKHL 61.

[3] Pretty v the UK (2002) 35 EHRR 1 [62]-[65], [67].

[4] ibid. [74].

[5] See further: Dan Morris, ‘Assisted Suicide under the European Convention on Human Rights: A Critique’ (2003) 1 European Human Rights Law Review 65; Michael Freeman, 'Denying Death its Dominion: Thoughts on the Dianne Pretty Case' (2002) 10(3) Medical Law Review 245; Antje Pedain, ‘The Human Rights Dimension of the Diane Pretty Case’ (2003) 62(1) Cambridge Law Journal 181; Andrew Ashworth, ‘Dying, Human Rights and Quality of Life’ (2002) 5 Archbold News 4; and John Keown, ‘No Right to Assisted Suicide’ (2002) 61(1) Cambridge Law Journal 8.

[6] R (on the application of Purdy) v DPP [2009] UKHL 45 [40], [42], [53].

[7] ibid. [56], [69], [83]-[86], [88], [101]-[102].

[8] See further: Nick Cartwright, ‘48 Years on: Is the Suicide Act Fit for Purpose?’ (2009) 17(3) Medical Law Review 467; Roger Daw and Alex Solomon, ‘Assisted Suicide and Identifying the Public Interest in the Decision to Prosecute’ (2010) 10 Criminal Law Review 737; Kate Greasley, ‘R(Purdy) v DPP and the Case for Wilful Blindness’ (2010) 30 Oxford Journal of Legal Studies 301; Penney Lewis, ‘Informal Legal Change on Assisted Suicide: The Policy for Prosecutors’ (2011) 31 Legal Studies 119; Ben Livings, ‘A Right to Assist? Assisted Dying and the Interim Policy’ (2010) 74 The Journal of Criminal Law 31; Alexandra Mullock, ‘Overlooking the Criminally Compassionate: What are the Implications of Prosecutorial Policy on Encouraging or Assisting Suicide?’ (2010) 18 Medical Law Review 442; Jonathan Rogers, ‘Prosecutorial Policies, Prosecutorial Systems, and the Purdy Litigation’ (2010) 7 Criminal Law Review, 543; and Hazel Biggs, 'Legitimate Compassion or Compassionate Legitimation? Reflections on the Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide' (2011) 19 Feminist Legal Studies 83.

[9] R (on the application of Nicklinson and another) v Ministry of Justice; R (on the application of AM) (AP) v DPP [2014] UKSC 38 [141], [143]-[145].

[10] Nataly Papadopoulou, 'From Pretty to Nicklinson: Changing Judicial Attitudes to Assisted Dying' (2017) 3 European Human Rights Law Review 298.

[11] I will not deal with this issue here. In summary, the DPP’s policy was deemed lawful, but the UKSC said that if there was any lack of clarity, the DPP should make amends. I note the change to the policy earlier in the discussion.

[12] R (on the application of Nicklinson and another) v Ministry of Justice; R (on the application of AM) (AP) v DPP [2014] UKSC 38 [96], [111], [186].

[13] ibid. [107]-[108], [186], [205], [314]-[316], [355].

[14] See further: Jonathan Rogers, ‘Assisted Suicide Saga - The Nicklinson Episode’ (2014) 7 Archbold Review 7; and Alexandra Mullock, ‘The Supreme Court Decision in Nicklinson: Human Rights, Criminal Wrongs and the Dilemma of Death’ (2015) 31(1) Professional Negligence 18; and Elizabeth Wicks, ‘The Supreme Court Judgment in Nicklinson: One Step Forward on Assisted Dying; Two Steps Back on Human Rights’ (2015) 23(1) Medical Law Review, 144.

[15] Elizabeth Wicks, ‘The Supreme Court Judgment in Nicklinson: One Step Forward on Assisted Dying; Two Steps Back on Human Rights’ (2015) 23(1) Medical Law Review, 144.

[16] R (on the application of Conway) v The Secretary of State for Justice [2017] EWHC 2447 (Admin).

[17] R (on the application of Conway) v The Secretary of State for Justice [2018] EWCA Civ 1431.

[18] HC Deb, 23 Jan 2020, vol.670, cols186-210; HC Deb, 4 July 2019, vol662, cols1412-1451; HC Deb, 8 Oct 2019, vol664, cols1622-1623.