Protecting life and assisting death: Is not allowing assisted dying a violation of the right to life?

Is not allowing assisted dying a violation of the right to life?

2.1 Introduction

Article 2 protects the right to life and, central to that protection, is the prohibition of the arbitrary taking of life by the State or its agents.1 In determining whether the blanket ban on assisted suicide is compatible with Article 2, the first question is whether the ban engages the right to life. That is, does the ban interfere with a person’s right to life? It was argued on behalf of Ms Pretty that the right to life encompassed the right not to live, and by denying her the opportunity to die by suicide with assistance (by refusing to immunise her husband from prosecution), the State was violating her right not to live. In rejecting that contention, both the House of Lords and the ECtHR reiterated that Article 2 protects life and, unlike other articles in the ECHR, cannot be said to protect the inverse (i.e. a right not to live). While that may seem determinative of the question of the ban’s compatibility with Article 2 (leaving aside for a moment the fact that the ECHR is a ‘living instrument ... to be interpreted in present-day conditions’2), there is evidence that the ban forces some people who have medical conditions that will result in their physical deterioration such that they will be unable to die without assistance to take their lives prematurely, while they are still physically capable of doing so. This chapter will examine in greater detail that evidence and whether it is sufficient to support the contention that the ban violates the right to life of individuals who feel compelled to take their lives prematurely.

Does the blanket ban engage the right to life?

The trial judge in Carter accepted the anecdotal evidence that the Canadian ban compelled some people to take their lives sooner than they otherwise would if assisted suicide were permitted:

[T]he prohibition on physician-assisted dying had the effect of forcing some individuals to take their own lives prematurely, for fear that they would be incapable of doing so when they reached the point where suffering was intolerable. On that basis, she found that the right to life was engaged.3

The Canadian Supreme Court endorsed that finding, holding that the ban ‘may cause those affected to take their own lives sooner than they would were they able to obtain a physician’s assistance in dying’.4 Consistent with the Canadian jurisprudence, the trial judge in the New Zealand case of Seales accepted the submission made by Ms Seales that the analogous ban in New Zealand engaged her right to life since it ‘may have the effect of forcing [her] to take her own life prematurely, for fear that she will be incapable of doing so when her condition deteriorates further’.5 These findings are not unique to the Canadian and New Zealand contexts; as then-President Neuberger observed in Nicklinsow.

The argument based on the value of human life is not one which can only be raised by the Secretary of State. The evidence shows that, in the light of the current state of the law, some people with a progressive degenerative disease feel themselves forced to end their lives before they would wish to do so, rather than waiting until they are incapable of committing suicide when they need assistance (which would be their preferred option). Section 2 therefore not merely impinges adversely on the personal autonomy of some people with degenerative diseases, but actually, albeit indirectly, may serve to cut short their lives.6

In 2019, 5,691 individuals died by suicide.7 Given the above findings of Lord Neuberger in Nicklinson, the Canadian courts in Carter and the New Zealand High Court in Seales, it is likely that a percentage of those almost 5,700 individuals were ‘forced [as a result of the ban on assisted suicide] to end their lives before they would wish to do so, rather than waiting until they are incapable of committing suicide when they need assistance’.8 Data disclosed by the Directors of Public Health in 2014 revealed that 7 per cent of suicides in England involve people who are terminally ill.9 Assuming, in the absence of evidence to the contrary, that that percentage has remained relatively stable, that means that approximately 398 people who died by suicide in 2019 had a terminal illness. The lack of a central database of coronial conclusions, coupled with the fact that many suicide conclusions are not narrative (therefore do not typically disclose the individual’s antecedents), makes it difficult (if not impossible) to ascertain how many of those individuals felt compelled to take their lives sooner than they otherwise would have chosen to if they could have obtained assistance at a later date. However, the anecdotal evidence strongly suggests that at least some of those 398 individuals and, indeed, other individuals who, while not terminally ill, may nevertheless have degenerative conditions (such as Omid T1()), took their lives sooner than they otherwise would have as a result of the ban.

This is consistent with evidence from the State Coroner given to the Victorian Standing Committee on Legal and Social Issues which was considering the introduction of assisted suicide in Victoria (Australia). That evidence revealed that individuals with grievous and irremediable conditions were dying by suicide in that jurisdiction:

These are people who are suffering from irreversible physical terminal decline or disease, and they are taking their lives in desperate, determined, and violent ways. They are the category of suicides we want to talk to you today about.

I will say that there were at least 197 suicide deaths in those four years [between 2009 and 2012] where the deceased was suffering an irreversible deterioration in their physical health. When you break them down, about 80 per cent involved physical illness and in about 20 per cent, if you like, the aetiology of the deterioration is physical injury.11

Similarly, the Committee charged with considering the introduction of assisted dying in Queensland (Australia) reported that:

Tragically, on average around once every four days, someone suffering a terminal or debilitating condition suicides in Queensland ... Data compiled [over a 24-month period] identified 168 notifications of death to a Queensland coroner where the deceased died as a result of intentional selfharm and suffered from a terminal or debilitating physical condition.12

This evidence accords with that noted by Lord Neuberger in Nicklinson: ‘[t]here is reliable statistical and anecdotal evidence which indicates that, in recent years, hundreds of people suffering from terminal or chronic conditions, whose lives are often painful and/or undignified, committed suicide annually’.13

In addition to the above data, there is first-hand evidence from individuals affected by the blanket ban in England and Wales, and analogous bans overseas, confirming that such bans do indeed cut short the lives of some individuals with grievous and irremediable medical conditions. The trial judge in Carter quoted one of the plaintiffs in those proceedings who described the impact of the (then-analogous) ban in the following way:

The current state of the law deprives me of the freedom to choose how and when I would end my life. The current law may cause me to initiate a premature termination of my life simply because if I wait until I am ready to do so, I may be unable to do so, in any humane fashion, without asking my loved ones to put themselves at legal risk.14

A 2017 report prepared by Dignity in Dying based on, inter alia, interviews with individuals who were terminally ill as well as those whose loved ones had accessed assistance in dying by suicide in permissive jurisdictions overseas, contains multiple statements confirming that the ban in England and Wales ‘servefs] to cut short [the] lives’15 of some individuals:

  • • The best way I could describe that feeling is if you leave it too late, you’re trapped. I want to reach a stage where I say, ‘look, this isn’t an enjoyment anymore’. But there’s no way I’m going to end up trapped.
  • • I feel so strongly about that. If it was available in this country, I could get a few more months with quality of life. Now, you’ve got to end your life early. It’s not practical to say, ‘Oh, let’s go have an extended holiday in Switzerland and then when I come to the end ...’. Because you can’t. I want my children with me and they can’t uproot their lives for me for weeks on end.
  • • They should allow assisted dying here because to go to Switzerland, I would have to travel while I’m still well enough. I’d be ending my life before I should have to.
  • • It’s going to be a hard decision. It’s going to be hard to say, ‘Right, I’ve got to go now. I’ve got to say it’d be nice to stay longer, but if I stay any longer, I could end up not able to make it.’ If it comes to a choice between the two, I’d rather go early than take the risk of leaving it too late. If I could do it here, well, that’d be marvellous. I’d be able to stay longer.
  • • The timing is really difficult. If we’d left it very much longer. Bob would have been in too much pain to travel, and I think he knew that, which is why he pushed it forward a bit, because he didn’t have choice.16

In 2019, the House of Commons considered the ban in light of a letter addressed to Members of Parliament by Geoff Whaley. Mr Whaley, who had motor neurone disease, had travelled to Dignitas to be assisted in dying. During the debate in the Commons, Paul Blomfield MP discussed his father’s suicide following a diagnosis with terminal lung cancer. According to Mr Blomfield:

My father’s experience shows how the existing law not simply fails people, but leads to premature deaths.

... I am sure that what drove him to end his life at that point was the fear that if he did not act when he could and was still able to do so, he would lose the opportunity to act at all. He could not talk to me or his partner about it, because he would have made us complicit. The current law forced my father into a lonely decision and a lonely death.

... If the law had made it possible, he could have shared his plans with us, and knowing that he could, with support, go at the time of his choosing would have enabled him to stay longer. If the law had made it possible, he would have been able to say goodbye and go with his family around him, not in a carbon monoxide-filled garage. He, and many others like him, deserve better. We simply need to change the law.17

This evidence plainly demonstrates that the ban ‘not merely impinges adversely on the personal autonomy of some people with degenerative diseases, but actually, albeit indirectly, may serve to cut short their lives’.18 Indeed, Omid T who had multiple systems atrophy and whose death was not imminent decided to travel to Switzerland in late 2018 while he was still able to do so in order to die with assistance. He did so after a failed attempt to take his life in 2015.19 In those circumstances, the ban can be said to engage the right to life of such individuals. The preceding also supports the conclusion that the prohibition of euthanasia engages the right to life since degenerative conditions such as motor neurone disease will lead to a person’s complete physical incapacity such that they are incapable of dying by suicide, even with assistance. Thus, insofar as individuals with degenerative conditions such as Omid T are being forced to take their lives prematurely while they are still physically capable of doing so, the prohibition of euthanasia ‘not merely impinges adversely on the personal autonomy of some people with degenerative diseases, but actually, albeit indirectly, may serve to cut short their lives’.20 That, however, does not conclude an examination of Article 2 of the ECHR. Having determined that the right to life is engaged, the question remains whether that engagement constitutes a violation of the State’s obligation to protect life. Put plainly, does the fact that the bans on assisted suicide and euthanasia force some people to take their lives prematurely constitute a violation of Article 2 of the ECHR?

 
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