EUTHANASIA and RIGHT TO DIE

A case study of Dianne Pretty

Imagine we live in a world where medical science has made such advancements that it is possible to predict the personality; behavior and life of a person. Just imagine that science can (to a level of statistical precision) predict the life expectancy and death of a person at any time. In other words the uncertainties regarding illnesses that exist today are no longer their.

This dream is far from reality and even though science has made astonishing discoveries; improved the standard of life and found cure for diseases, but there is a long way to go. Motor Neuron Disease is such a disease to which science has not yet been able to find an answer. This was the same disease from which Mrs. Dianne Pretty was suffering. It is gradual degeneration of nerves that ultimately result in death. This fact was known to Mrs. Pretty and she wanted to end her life while she was in her senses and at a time she thought appropriate. She had perfectly legal right to do that[1]. However due to her inability caused by the same disease meant that she could not physically kill herself. She required assistance and wanted her husband to do that. This was not legal under the current law of the England and Wales. Suicide Act [hereinafter ‘the Act’] s2 (1) states that “a person who aids … another to commit suicide shall be liable on conviction on indictment to imprisonment for a term not exceeding fourteen years”.

Further, a consent from the Director of Public Prosecution[2] (hereinafter D.P.P.) was needed before a case could be brought before the court. Mr. Pretty was willing to help his wife but only if D.P.P gives an undertaking not to prosecute him. The D.P.P refused to give such an undertaking. It needs to be added that this was the norm and he was entitled to do follow it. Against this decision Mrs. Pretty brought judicial review proceedings at the High Court and than House of Lords. When House of Lords rejected her claim of a right to be assisted in dying she brought proceeding in-front of the European Court of Human Rights (hereinafter ECtHR) for breach her Convention rights 2 (Right to life), 3 (Prohibition of torture), 8 (Right to respect for private and family life), 9 (Freedom of thought, conscience and religion), and 14 (Prohibition of discrimination).

Finally on 29 April 2002 the ECHR unanimously rejected Mrs. Pretty contention of breach of any Convention Right[3]. The decision immediately ran into criticism by popular media and right to die movements. However it is submitted that we can spare the media for falling to the situation. The circumstances faced by Mrs. Diane Pretty were truly frightening[4] and it is in this context the media’s response can be understood.

The starting point of our discussion is the interest of an individual against, inter alia social well being of a state. This question though in its’ very basic state, is highly subjective and value laden and therefore eludes any legal definition or rigidity.

Having said that, and as Dr. Campbell explains, our problem does not end here. It runs much deeper. That is, before we even consider the question of the interest of state versus the right of the individual we need to first overcome our prejudice against illnesses and disabilities. She argues that before we start talking about the right to die we fully appreciate the value of life.

However prior to our own discussion; we first need to identify the nature of our rights’ discourse i.e. philosophical, legal, or political. In legal forums in UK the request to end life had not come up before; and the debates in media are often of a social and political level. Same is true for Parliamentary debates[5]. I am not suggesting that all of the discussions are mutually exclusive or the distinction is easy to maintain; rather, if we just look at an argument in its context we can better appreciate it. And it is through this prism we need to look at Dr. Jane Campbell’s arguments and her apparent hostility to the media.

A humble effort is made henceforth to identify the difference between these natures in light with the questions asked the Dianne Pretty Case. I will approach this by looking at the arguments raised by the counsel for Mrs. Pretty under each article[6], the European Court of Human Rights’ response (hereinafter: ECHR) and wider social and political aspect of the case.

ARTICLE 2

1. 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.
2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

§ in defence of any person from unlawful violence;

§ in order to effect a lawful arrest or to prevent escape of a person lawfully detained;

§ in action lawfully taken for the purpose of quelling a riot or insurrection.

René Descartes the famous French rationalist argued that life and health are chief among all goods. In other words we need life and good health if we want to do anything else. On the other hand we have personal autonomy and individuals’ right to self determination. Mrs. Pretty argued that Article 2 of the convention gave her the right to self determination and therefore a right to do die. The Director for Public Prosecution by not granting her husband the immunity from prosecution under Sec. 2 of the Suicide Act 1961 had deprived her of that right. She argued that Article 2 protects right to life not life itself. For instance it protects against interference by the State. If a person wanted to kill him/herself than he/she may do so and if that person is not able to do that (due to a disability) the person should be able to get assistance. If state did not allow this it will be in breach of this article.

We know from L.C.B. v U.K. (1998) that state is under a negative as well positive obligation under this article. That is, not only should there be no threat to life to an individual by any action of the state, the state needs to take steps to ensure that such is the case.[7] Having said that the Court (ECHR) said that there was no right to die and as long ago as 1979 it was noted by the Commission that Art.2 exists to, "Primarily provide protection against deprivation of life only"[8] Court also referred the wording of the Article and the sanctity it holds in the European Culture. Further possible explanation is that the Court has over the years emphasized how important the article is and to keep the sanctity it was felt that the scope ought to be kept narrow[9]. The view that death or dying was a natural ‘corollary’ of life was rejected.

Diane Pretty was able to show that if State allowed assisted suicide the it will not be in breach of it’s obligations under Article 2. Having said that, and as the House of Lords highlighted, this was not enough. She had to show that State is in breach of Article 2 for prohibiting assisted suicide. This she was not able to do and therefore the claim under the Article was rejected.

ARTICLE 3

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

This Article is one of rights which are absolute, i.e. there are no exception and therefore no justification. Further more the State is under positive obligations; so mere inadvertence is not enough. Mrs. Pretty argument was primarily based on the cases[10] A v United Kingdom[11] and D v United Kingdom[12], where it was held that state were in an obligation not to inflict the proscribed treatment[13] and suffering attributable to another factor (disease) may amount to such [proscribed] treatment if the State can prevent it and does no do so, respectively. Failing to allow her assistance in death, left her to suffer inhuman and degrading treatment. However as their lordship highlighted that the word ‘treatment’ needs to have some limits and it was difficult to see how the actions of the UK government amounted to proscribed treatment. The Court went on to say that the concept of treatment is subjective and has been developed on a case to case basis but (what Mrs. Pretty is asking) this would be new and extended construction on the concept of treatment if this is allowed. The Court also said that the minimum level of severity required by the Article was not reached. This was due to the fact that palliative care and all possible medical treatment was available (and being provided) to Mrs. Pretty[14].

ARTICLE 8

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.

Article 8 is unique in its wording. Its broad and vague it calls for ‘respect’ of private/ family life as apposed to ‘right’ in other articles. This apparent distinction however has not dissuaded the Court to treat the Article as any less important. And it is this article and the Court’s ruling under this it that has come under fierce criticism[15]. Dianne Pretty argued that this Article protects her from external interference and gives her a right of self determination[16]. She argued that she had a right to die so that she could avoid the indignity and suffering caused by her illness. She also argued that if it can be shown that there is interference, it is for the state to justify it under sub para 2 of Article 8[17] and had failed to do so as no consideration was given to her situation.

The Court in response to this said that it recognizes the domestic law which gave people a right to refuse treatment of any kind. The Court referred to Lord Hope’s judgment in the same case said that “…in an era of growing medical sophistication combined with longer life expectancies, many people are concerned that they should not be forced to linger on in old age”. Therefore it concluded that there was interference on part of UK. Then there was the question of justifiability of this interference under sub para 2 of the Article.

The margin of appreciation in certain intimate matters (such as sexuality) is narrow than others. For example in Dudgeon v. UK and A.D.T v. UK the Court said that matters of sexuality are so intimate that the margin of appreciation is ‘narrow’. The Court went on to say that in this case the margin was much wider. At first glance it seems as though the Court is suggesting that issues of life/ death are not as intimate as sexuality[18]. However this is not the case, the court is suggesting that there is no real consensus between member states on the issue. This observation is true if we see that lately only Netherland and Belgium have legalised euthanasia. The court said that “… the more serious the harm involved the more heavily will weigh in the balance considerations of public health and safety against the countervailing principle of personal autonomy.”

The European Court referred to the flexibility provided by the Act, which requires an approval from the D.P.P before a case is brought against a person. This coupled with the fact that only on 1 case has been brought since the Act took effect. This observation has been criticised and in fairness does seem out of line with the previous case law.

In Dudgeon v UK even though the law prohibiting homosexuality was ‘not used’ its existence was accepted as a violation Article 8. The two decisions do seem opposite. It is submitted that the two situations are quite different and so cannot be compared because the legalizing of assisted suicide does entail risks to a vulnerable group of people which is not the case with homosexuality.

Dan Morris suggests an alternative observation to Court’s on Article 8. He builds his arguments by, referring to the case Botta vs. Italy where it was accepted that personality and personal development as intimate part of private life and thus covered under Article 8. He suggests that dying is part of personal development and personality and the Court protects “posthumous autonomy”[19]This argument though valid again runs victim to the general issue at hand that there are simple too many variables. For example Dan Morris argues that there is no evidence to support the slippery slope argument. He refers to two different researches carried out in the Netherlands; the findings suggest that in Netherland in the year of the survey % 0.7 people where euthanized without consent as apposed to % 3.5 in Australia (where euthanasia is illegal). The % 0.7 still means 1000 people[20] I.e. that legalising will not result in many unwanted deaths. However it is suggested that where important issues of life and death are concerned one need to be ever more careful. It has also been suggested that matters of (medical) ethics should be left to doctors[21]. It is for this reason the medical profession is against any legislation to regulate such a sensitive issue[22].

There can be a number of options for the future. For instance, the 1994 Report of the New York State Task Force on Life and Law concluded on that basis that the legalizing of any form of assisted suicide or any form of euthanasia would be a mistake of historic proportions, with catastrophic consequences for the vulnerable and an intolerable corruption of the medical profession[23]. Alternatively, as Richard H. S. Tur suggests, there is a less need for radical reform as apposed to need for transparency in law[24].

After discussing the Pretty case one has to accept that result was based on a policy; a policy to prefer protection of weak and vulnerable as apposed to personal autonomy; a social question that needs acceptance from the society before it can be legally accepted. Dr. Jane Campbell gives evidence to suggest how our society gives credence to beauty and physical appearances. Until such stigmas exist or the futuristic picture presented at the start of this article are met euthanasia should not be legalized.

BIBLIOGRAPHY:

• Assisted suicide under the European Convention on Human Rights: A critique Dan Morris
• http://dignityindying.nvisage.uk.com/information/factsheets.asp?id=84
• British woman denied right to die at http://news.bbc.co.uk/1/hi/health/1957396.stm
• The Assisted Dying Bill – ‘Death Tourism’ and European Law by John Coggon and Søren Holm
• Diane Pretty: The fight continues available at at http://news.bbc.co.uk/1/hi/health%20/1682321.stm
• Dying woman loses her battle for assisted suicide by Clare Dyer available at http://www.pubmedcentral.nih.gov/articlerender.fcgi?artid=1123022
• Euro court rejects Diane Pretty's 'right to die' appeal by David Barrett and Geoff Meade
• Is assisted suicide a human right? a public debate on the issue at http://newsvote.bbc.co.uk/1/hi/talking_point/1500552.stm
• Suicide tourism a grisly problem for the Swiss by Antonio Ligi
• 2006: Not a good year for the right-to-die movement; available at http://www.internationaltaskforce.org/iua38.htm
• Assisted Dying for the Terminally Ill Bill Written evidence collated by The Royal College of Physicians of London On behalf of The Academy of Medical Royal Colleges; available at http://www.aomrc.org.uk/pdfs/assisteddying.pdf.
• No way to protect the vulnerable; available at http://observer.guardian.co.uk/uk_news/story/0,,824890,00.html
• Disability Rights Commission Policy statement on voluntary euthanasia and assisted suicide. Link http://www.drc-gb.org/library/policy/health_and_independent_living/drc_policy_statement_on_volunt.aspx
• Just How Unlawful is “Euthanasia” by Richard H. S. Tur
• A Pretty fine line: life, death, autonomy and letting it B by Hazel Biggs

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[1] Suicide Act 1961 sec 1

[2] Section 2 (4) provides:

“No proceedings shall be instituted for an offence under this section except by or with the consent of the Director of Public Prosecutions.”

[3] Case of Pretty v United Kingdom (2346/02) 29 April 2002

[4] See for example Lord Bingham in House of Lords “ No one of ordinary sensitivity could be unmoved by the frightening ordeal which faces Mrs. Dianne Pretty ..."

[5] There has been long debates on the issue in the House of Lords for and against it and despite Lord Joffe’s persistence the bill has still not passed through.

[6] Apart from Article 2, 3 and 8 Article 9 and 14 were also raised by Dianne Pretty but they are beyond the scope of this essay and will not be discussed.

[7] L.C.B. v. the United Kingdom judgment of 9 June 1998, Reports of Judgments and Decisions 1998-III, p. 1403, § 36

[8] X v Austria Appl. 8278/78, 18 D.R. 154 at 156

[9] Assisted suicide under the European Convention on Human Rights: A critique Dan Morris para. 12- 15.

[10] ECHR para 11

[11] (1998) 27 EHRR 611

[12] (1997) 24 EHRR 423

[13] Proscribed treatment implies that treatmet needs to be directed from the state, in other words there needs to be a causal link between individual’s suffering and State.

[14] See for example Ireland v. the United Kingdom judgment, p. 66, § 167 and V. v. the United Kingdom [GC] no. 24888/94, ECHR 1999-IX, § 71 ; ECHR para 52.

[15] Assisted suicide under the European Convention on Human Rights: A critique Dan Morris. See also the case of R (on the application of Burke) v General Medical Council [2004] All England Reports (D) 588. The High Court in the case said that patient had complete autonomy in matters of life and death. See also Just How Unlawful is “Euthanasia” by Richard H. S. Tur

[16] X & Y v. the Netherlands (1985)

[17] She referred to the ECHR case of R v. A (No. 2) [2001]

[18] ECHR see para 71.

[19] X v. Germany App. No.8741/79, 24 D.R. 137

[20] This is quite a large figure It is submitted that there is no evidence to the contrary as well!

[21] Jonathan Montgomery (2006) Law and the demoralisation of medicine Legal Studies 26 (2), 185–210

[22] In a survey by Association of Palliative Medicine, 2006 % 94 of the medical professionals are against a change in law.

[23] ECHR para 30

[24] Just how Unlawful is “Euthanasia” by Richard H. S. Tur