THE European Court of Human Rights dismissed complaints that the UK violated the right to respect for private life, guaranteed by Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, when Parliament failed to legalise assisted suicide and voluntary euthanasia and the Supreme Court refused to declare that the provision of assistance to end another person’s life would not be unlawful.
The complaints against the UK were brought by Jane Nicklinson, the widow of Tony Nicklinson, who died in 2012 (News, 24 August 2012), and by Paul Lamb (News, 20 December 2013).
In June 2004, Mr Nicklinson suffered a stroke that left him with “locked-in syndrome”. He was paralysed and unable to speak or carry out any physical functions on his own, except limited movement of his eyes and head. He initially communicated by blinking at a board of letters, and subsequently he used an eye-blink computer. He was able to eat only mashed food, and was housebound. He was in regular physical and mental pain.
He gradually decided that he did not wish to continue living. In November 2007, he made a living will asking that all treatment, save pain relief, be ended, and he stopped any medication intended to prolong his life. Because of his disabilities, however, he was unable to kill himself without assistance, other than by refusing food and water.
Mrs Nicklinson considered that prospect to be “too painful to watch”, and Mr Nicklinson did not wish to inflict pain and suffering on his family. He wanted a more dignified exit from this life. His preference was for a third party to kill him by injecting him with a lethal drug. That would amount to voluntary euthanasia by the person who administered the injection, and under English law that would amount to murder.
He issued a claim in the High Court, seeking a declaration that the provision of medical assistance to end his life would not be unlawful because it could be justified under the common-law defence of necessity; or that the law on murder and assisted suicide was in breach of his human rights.
His lawyers obtained a statement from a Dr Nitschke, who had invented a machine that, after being loaded with a lethal drug, could be digitally activated by Mr Nicklinson, using a pass phrase, via an eye-blink computer. The claim proceeded on the basis that Mr Nicklinson was prepared to consider assisted suicide through the use of Dr Nitschke’s machine.
When his application to the High Court failed, Mr Nicklinson refused nutrition, fluids, and medical treatment, and he died of pneumonia in August 2012. His widow was granted permission to appeal on his behalf.
Mr Lamb was involved in a car accident, as a result of which he sustained multiple injuries, which left him paralysed. He is immobile, although he can move his right hand to a limited extent. His condition is irreversible, and he requires constant care. He experiences severe pain, for which he has to take morphine.
He wishes to end his life, but is unable to commit suicide, even with assistance. He would require the administration of lethal drugs by a third party, which would amount to murder under English law. He sought the same declarations as Mr Nicklinson.
Both appeals failed in the Court of Appeal, and they appealed to the Supreme Court, which, sitting as a nine-judge panel, dismissed their appeals by a majority of seven to two.
Under the Suicide Act 1961, suicide ceased to be an offence under English law, but section 2(1) of that Act states that a person commits an offence if he does an act capable of encouraging or assisting the suicide or attempted suicide of another person.
Section 2(4) provides that no proceedings shall be instituted for an offence under section 2(1), except by or with the consent of the Director of Public Prosecutions (DPP). The intentional killing of another person, even with his consent, would constitute the common-law offence of murder.
In February 2010, the DPP issued a final policy statement on assisted suicide. He stated that the fact that a victim had a terminal illness, and severe and incurable physical disability, or a severe degenerative physical condition from which there was no possibility of recovery, was not included as a factor tending against prosecution.
The DPP also confirmed, in his evidence to the Supreme Court, that, to date, there had been only one prosecution under section 2(1) of the Suicide Act. He also informed the Supreme Court that, according to Dignitas, the Swiss organisation that provides euthanasia, between 1998 and 2011 a total of 215 people from the UK had used its services, and that nobody had been prosecuted for providing assistance in that connection.
In March 2012, the House of Commons debated the subject of assisted suicide, and passed a motion welcoming the DPP’s 2010 policy statement, and encouraging further development of specialist palliative care and hospice provision.
In June 2014, the Assisted Dying Bill was introduced to the House of Lords by Lord Falconer. It would have allowed a terminally ill person to request, and lawfully be provided with, assistance to end his or her life, subject to certain conditions. The Bill was debated in November 2014, and in January 2015, but Parliament was dissolved in March 2015. The Bill will, therefore, not progress any further.
Mrs Nicklinson complained to the Human Rights Court that the domestic courts of the UK violated her rights, and those of her late husband, by refusing to determine the compatibility of section 2(1) of the Suicide Act 1961 with their right to respect for their private life under article 8 of the Convention.
Mr Lamb complained that his human rights were infringed by the failure to confer on him, and on others in a similar situation, the opportunity of seeking the authority of the court to permit a volunteer to administer lethal drugs to him with his consent.
The Human Rights Court said that it was satisfied that the majority of the Supreme Court judges had dealt with the substance of Mrs Nicklinson’s claim. They concluded that she had failed to show that developments in the law meant that the ban on assisted suicide could no longer be considered Article 8 rights.
The fact that, in making their assessment, the majority in the Supreme Court attached great significance or “very considerable weight” to the views of Parliament did not mean that they failed to carry out any balancing exercise. Rather, the Supreme Court had chosen, as it was entitled to do in the light of the sensitive issue at stake and the absence of consensus among contracting states, to conclude that the views of Parliament weighed heavily in the balance.
Mrs Nicklinson’s claim was manifestly ill-founded, the Human Rights Court ruled.
Mr Lamb’s position was that he would be unable to commit suicide even with assistance. His complaint was directed at the absence of a judicial procedure authorising voluntary euthanasia in certain circumstances, and the alleged inadequacies of the Supreme Court’s judgment.
The Human Rights Court said that the appeal in the Supreme Court concerned only the prohibition on assisted suicide, and not voluntary euthanasia. The two matters were distinct from each other. Given their different legal bases, it could not be assumed that the Supreme Court would have disposed of an argument in relation to voluntary euthanasia in the same way as it disposed of the claim in respect of the prohibition on assisted suicide.
Mr Lamb’s complaint was also rejected.