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

• Author: Stevie S Martin
• Position: LLM (First) (Cantab); LLB (First) (Australia); Bachelor of Psychological Science (Australia)
• Pages: 244-275

© 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’).