Assisted Dying – Update

The effect of section 2(1) Suicide Act 1961 makes it a criminal offence in England and Wales for a person to intentionally encourage or assist the suicide or attempted suicide of another person.
In April 2019, former Supreme Court justice Lord Sumption expressed his view that while this legal position should not be changed, citizens are not necessarily under any moral obligation to obey it.
Modern law It is important to distinguish between three types of assisted dying; (1) active euthanasia, (2) passive euthanasia; and (3) assisted suicide.
As of August 2019, ‘active euthanasia’ (i.e. a person taking steps to compassionately bring about the death of another — imagine a doctor injecting a patient with a lethal drug) is legal in certain circumstances in Belgium, Canada, Columbia, Denmark, Holland, Luxembourg, South Korea, Switzerland and Uruguay. ‘Passive euthanasia’ (i.e. a person compassionately withdrawing life-sustaining treatment from another) is presently legal in certain circumstances in Argentina, Belgium, Canada, Chile, Finland, Germany, Holland, India, Luxembourg, Mexico, South Korea, Spain, Sweden and throughout the United States.
Assisted suicide (i.e. a person compassionately helping a person to end their own life — imagine a doctor providing a lethal drug for a patient’s self-administration) is presently legal in certain circumstances in one Australian state (Victoria), Belgium, Canada, Colombia, Holland, Luxembourg, Switzerland and some parts of the United States (California, Colorado, Hawaii, New Jersey, Oregon, Washington, Washington D.C., Vermont and, from 1 August 2019, New Jersey).
In the UK, section 2(1) Suicide Act 1961 prohibits ‘active euthanasia’ and ‘assisted suicide’. ‘Passive euthanasia’, however, is lawful. So, while criminal liability bites on the doctor who injects his patient with lethal drugs on their request (or provides such drugs for the patient’s self-administration) a doctor may lawfully withdraw life-sustaining treatment from a patient who is in a persistent vegetative state (see Airedale NHS v Bland [1993]). For convenience, we may call this a ‘blanket ban’ on assisted dying because it is presently illegal for a person to help another end their life (unless the person who wishes to die happens to be on life-supporting treatment).
It’s been suggested that this blanket ban is inconsistent with the European Convention of Human Rights (ECHR). Article 8(1) ECHR enshrines the ‘right to respect for his private and family life’. The European Court of Human Rights (ECtHR) has held that Article 8(1) is engaged when an individual seeks assistance in ending their life (Pretty v UK (2002) and Haas v Switzerland (2011)).
However, Article 8(2) allows states to restrict citizens’ Article 8(1) rights if so doing is “necessary in a democratic society”. So framed, the fight for individuals’ right to die takes place entirely within Article 8. On the one hand, the ECtHR has held that Article 8(1) gives European individuals a prima facie right to seek assistance in ending their lives. On the other, Article 8(2) allows states to render unlawful the provision of such assistance if so doing is “necessary in a democratic society”.
The UK justifies the blanket ban on assisted dying is “necessary in a democratic society” on grounds that, without it, society’s most vulnerable might feel pressured into ending their lives. The argument runs as follows: (i) old and severely ill individuals are often dependent on others; (ii) such individuals may have low self-esteem and feel that they are burdensome on their carers; (iii) if assisted dying were legal, vulnerable individuals might feel compelled to seek it out so as to relieve others from the burden they feel they impose.
The fiercest challenge to this justification was brought in R (Nicklinson) and it is to that case which we now turn. Mr Nicklinson Before 2005, Tony Nicklinson was a successful civil engineer. While on a business trip to Athens, Nicklinson tragically suffered a stroke and developed ‘locked in syndrome’. This paralysed him from the neck down and restricted his communication to specific eye movements and patterns of blinking. Nicklinson foresaw the rest of his life as being “dull, miserable, demeaning, undignified and intolerable” and sought assistance to die in a manner of his choosing. After the High Court dismissed this request, Nicklinson refused all nutrition and passed away on 22 August 2012.
Before the Supreme Court, the widowed Mrs Nicklinson joined two other applicants and challenged the UK’s blanket ban on assisted dying on two grounds. First, relying on section 3 of the Human Rights Act 1998 (HRA 1998), applicants sought an interpretation of section 2(1) Suicide Act 1961 that was compatible with and left unviolated individuals’ Article 8(1) rights. Second, if a ‘convention-compatible’ reading was impossible, that the court make a ‘declaration of incompatibility’ (DI) between UK law and ECHR pursuant to section 4 HRA 1998.
As it happened the Supreme Court refused to issue a DI by a majority of 7-2. The court refused to issue a DI, in part, because they hadn’t been served with sufficient factual evidence to understand the risks and benefits associated with changing the blanket ban on assisted dying. Lord Mance felt that, without evidence, “it would be impossible for this court to arrive at any reliable conclusion about the validity of any [such] risks”.
To reach a sound conclusion, Lord Mance considered that “detailed examination of first-hand evidence, accompanied by cross-examination” was required. Lord Neuberger agreed, expressing that “on the basis of the arguments and evidence which have been put before the court, there would have been too many uncertainties to justify our making a declaration of incompatibility”.
To understand the importance of factual evidence, we return to Article 8 ECHR. As explained above, Article 8(2) ECHR renders compatible states’ interference with Article 8(1) ECHR if such interference is “necessary in a democratic society”. Put another way, if evidence can establish that the British blanket ban on assisted dying is not “necessary in a democratic society”, its interference with individuals’ Article 8(1) rights will be unjustified.
In such circumstances, there will be incompatibility between UK law and the ECHR. Mr Newby Phil Newby is a 48-year-old man who, in 2014, was diagnosed with motor neurone disease (a neurological affliction causing muscle wastage and progressive loss of control over voluntary movement). Newby could lawfully seek assistance in dying only if he deteriorated to such an extent that he required continual life-sustaining treatment (which may lawfully be withdrawn). The problem is that Newby’s disease is progressing comparatively slowly. Newby does not expect to require life-sustaining treatment at any time in the near future. Instead, as set out in his letter before claim, his primary concern is “the psychological suffering he will endure as his body gradually ceases to function”.
To predecease this suffering, Newby would require ‘active euthanasia’ or ‘assisted suicide’, neither of which are legal under British law as it presently stands. That is why Newby states he must challenge section 2(1) Suicide Act 1961. The challenge to section 2(1) of the Suicide Act 1961 has two limbs; (1) the blanket ban on assisted dying disproportionately and unjustifiably interferes with individuals’ Article 8(1) rights; and (2) the blanket ban brings a ‘real risk’ of driving individuals to commit suicide while they are still physically capable of doing so, thereby violating their right to life under Article 2 ECHR. Newby’s challenge to section 2(1) Suicide Act 1961 is different from previous cases challenging the law because it will ask the courts to look at the evidence on assisted dying in more detail than the English courts have ever done before.
This would include detailed cross-examination of expert witnesses, allowing judges to test the strength of the evidence. This is the approach that was taken in Carter v Canada, the case that ultimately prompted law change on assisted dying in Canada. Newby’s challenge is significant as it promises to involve a sufficient volume of factual evidence about the likely consequences of legalising some form of assisted dying to allow a court to assess whether, as the UK government assert, the current blanket ban on assisted dying truly is “necessary in a democratic society”.
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