Assisted Suicide and the European Convention on Human Rights: A Critical Analysis of the Case Law

AuthorStevie S Martin
PositionLLM (First) (Cantab); LLB (First) (Australia); Bachelor of Psychological Science (Australia)
Pages244-275
© 2018 Stevie S Martin and Dublin University Law Society
ASSISTED SUICIDE AND THE EUROPEAN
CONVENTION ON HUMAN RIGHTS: A CRITICAL
ANALYSIS OF THE CASE LAW
STEVIE S MARTIN
Introduction
It is trite to note that assisted suicide
1
is a topic of considerable debate in
the United Kingdom (UK), Ireland and internationally. While it is certainly
the case that assisted suicide remains unlawful in the majority of
countries, there is an observable albeit slow-moving trend towards the
legalisation of various forms of assisted death.
2
Parliament and the
judiciary in England and Wales, however, continue to resist that trend.
The purpose of this paper is to demonstrate that, contrary to the findings
LLM (First) (Cantab); LLB (First) (Australia); Bachelor of Psychological Science (Australia).
PhD Candidate (Gonville and Caius College) and Teaching Associate, Faculty of Law,
University of Cambridge. The author would like to thank Mary Guest for her invaluable
contributions to the (many) variations of this article.
1
What constitutes ‘assisted suicide’ for legal purposes is by no means settled; however , it is
sufficient to note that it most frequently refers to situations in which a competent person
takes their own life having been provided with the means of doing so by a third party. See,
for example, Benjamin P White and Lindy Willmott, ‘How Should Australia Regulate
Voluntary Euthanasia and Assisted Suicide?’ (2012) J L & Med 20; Emily Jackson in Emily
Jackson and John Keown, Debating Euthanasia (Hart Publishing 2012), 2; Penney Lewis,
Assisted Dying and Legal Change (Oxford University Press 2007), 5; Commission on Assisted
Dying, The Current Legal Status of Assisted Dying in Inadequate and Incoherent (Demos 2011),
37; Julian Savulescu, ‘Autonomy, Interests, Justice and Active Medical Euthanasia’ in Michael
Cholbi and Jukka Varelius (eds), New Directions in the Ethics of Assisted Suicide and Euthanasia
(Springer 2015), 41. In contrast, ‘euthanasia’ derives from the Greek eu meaning good and
thanatos meaning death. It refers to a third party deliberately ending another person’s life.
See, for example, Jackson and Keown, 2.
2
The following are jurisdictions which, as at the date of writing, permit some form of assisted
dying: Belgium (physician assisted suicide and euthanasia); California (physician assisted
suicide); Canada (physician assisted suicide and euthanasia); Colombia (euthanasia);
Colorado (physician assisted suicide); District of Colombia (Washington) (physician assisted
suicide); Luxembourg (physician assisted suicide and euthanasia); the Netherlands (physician
assisted suicide); Oregon (physician assisted suicide); Switzerland (assisted suicide by
anybody without selfish reasons); Vermont (physician assisted suicide); Victoria (Australia)
(physician assisted suicide and euthanasia); Washington State (physician assisted suicide).
245 Assisted Suicide and the ECHR [Vol 21]
of the United Kingdom Supreme Court in Nicklinson
3
and the High Court
in Conway,
4
the blanket ban on assisted suicide in s 2(1) of the Suicide Act
1961 is incompatible with the European Convention on Human Rights
(ECHR) and a declaration to that effect ought to be made under s 4 of the
Human Rights Act 1998 (HRA). In so arguing, this article examines the
scope of the rights to life (Article 2) and private life (Article 8) of the ECHR
in the context of assisted suicide and illustrates that the blanket ban is
incompatible with both articles. Central to that contention is the
demonstration that, contrary to the High Court’s claim in Conway, there
is considerable overlap between the rights at issue and the principles
governing assessments of violations under the Canadian Charter of
Fundamental Rights and Freedoms (Canadian Charter) (in particular the
right to life, liberty, and security of the person enshrined in Article 7) and
Articles 2 and 8 of the ECHR. While, in most cases, domestic courts are
not obliged to follow the case law of overseas courts, the commonalties
across the jurisdictions render the English court’s disregard of the trial and
Supreme Court judgments in the Canadian case of Carter
5
perplexing to
say the least. This comparative analysis is especially pertinent given
present proceedings before the English courts: Omid T’s challenge
6
to the
compatibility of s 2(1) with Articles 2 and 8 of the ECHR is currently
progressing through the courts, while the English Court of Appeal has
very recently granted leave to Mr Conway to appeal the High Court’s
finding that s 2(1) is not incompatible with Article 8 of the ECHR. Insofar
as this paper demonstrates errors in the reasoning of the English courts
and examines the validity of arguments underpinning the complaints of
the applicants in Conway and T, it is directly relevant to the current
proceedings (and any further appeals before the domestic courts and/or
the ECtHR).
I. An Overview of the Relevant Provisions
To facilitate an understanding of the significance of the relevant
jurisprudence, it is first necessary to outline the applicable provisions of
the English legislation and the ECHR. Section 2(1) of the Suicide Act 1961
reads:
3
R (On the Application of Nicklinson and Anor) and Ors v Ministry of Justice and Ors [2014]
UKSC 38 (‘Nicklinson’).
4
Conway v Secretary of State for Justice [2017] EWHC 2447 (Admin) (‘Conway’).
5
Carter v Canada (Attorney General) [2015] 1 SCR 331 (‘Carter’) and Carter v Canada
(Attorney General) 2012 BCSC 886 (‘Carter trial judgment’).
6
T v Secretary of State for Justice [2017] EWHC 3181 (‘T’).
246 Trinity College Law Review [Vol 21]
A person commits an offence if-
(a) [They perform] an act capable of encouraging or assisting the
suicide or attempted suicide of another person, and
(b) [Their] act was intended to encourage or assist suicide or an
attempt at suicide
Article 2(1) of the ECHR provides:
Everyone’s right to life shall be protected by law. No one shall be
deprived of his life intentionally save in the execution of a sentence
of a court following his conviction of a crime for which this penalty
is provided by law.
Article 8 of the ECHR states:
1. Everyone has the right to respect for his private and family
life, his home and his correspondence.
2. There shall be no interference by a public authority with the
exercise of this right except such as is in accordance with the
law and is necessary in a democratic society in the interests of
national security, public safety or the economic well-being of
the country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the
rights and freedoms of others.
II. An Overview of the Relevant Jurisprudence
There have been several notable judgments from various jurisdictions
concerning the compatibility of bans on assisted suicide with the relevant
human rights documents. Leading among these are the decisions of the
Supreme Court of the United States (SCOTUS) in Glucksberg
7
, the
Canadian Supreme Court (and, indeed, the trial judgment) in Carter, and
the United Kingdom Supreme Court in Nicklinson. The New Zealand High
Court has also had cause to examine the compatibility of the domestic
blanket ban with the Bill of Rights
8
and the South African Supreme Court
and the Supreme Court of Appeal has also recently examined analogous
7
Washington et al v Glucksberg et al 521 U.S. 702 (1997) (‘Glucksberg’).
8
Seales v Attorney-General [2015] NZHC 1239 (‘Seales’).

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