Joint Committee On Human Rights

Joint Committee On Human Rights Seventh Report

Private Members' Bills

44. This Bill was introduced to the House of Lords by Lord Joffe. It would make it lawful for a physician to assist a person (A) to die, either by ending A's life or by providing A with the means of ending A's own life, if A: (i) is a qualifying patient; and (ii) has made a declaration which remains in force under the Bill.

45. This would effect a major change in the criminal law of England and Wales and Scotland.[32] In each jurisdiction, intentionally doing anything to hasten a person's death constitutes the crime of murder contrary to common law, and assisting someone else to hasten his or her own death constitutes the crime of assisting suicide under section 2 of the Suicide Act 1961. The issues which the Bill addresses have immense moral and medical significance, and are highly controversial. Our job is only to consider the human rights implications.

46. We have considered two broad issues, arising mainly out of the right not to be intentionally deprived of life (ECHR Article 2) and the right to respect for private life (ECHR Article 8). First, would any Bill to permit the intentional taking of life at the request of someone who wants to die be unavoidably incompatible with the right not to be intentionally deprived of life under ECHR Article 2, having regard to the case-law of the courts in the United Kingdom and Strasbourg? Secondly, are the safeguards contained in the Patient (Assisted Dying) Bill likely to be adequate to ensure that the powers that the Bill would confer would be used in a manner compatible with Convention rights in each case?

47. We have come to the conclusion that the answer to the first question is 'No', and that the answer to the second question is 'Yes'. As a result, the Bill would not, in our view, give rise to a significant risk of incompatibility with Convention rights. In view of the importance and sensitivity of the Bill's subject matter, we think it right to explain our reasons rather more fully than we ordinarily would in these circumstances.

48. Intrinsic compatibility or incompatibility. The current law, which prohibits any act done with the intention of hastening death, is a compromise between the values of the sanctity of life and personal autonomy. The law is compatible with ECHR Article 2, which prohibits the intentional deprivation of life save under certain circumstances. This was established in litigation brought by Mrs. Diane Pretty in 2001 and 2002. Mrs. Pretty was suffering from motor neurone disease. She wished to end her life, but was physically unable to do so without assistance. In the English courts, she sought judicial review of the refusal by the Director of Public Prosecutions to undertake, in advance, not to prosecute her husband for aiding and abetting suicide if he were to take steps to help her to end her life.[33] On her behalf, it was argued that refusing to allow people to die when they want to do so leads to them being subjected to inhuman or degrading treatment contrary to ECHR Article 3, and denied respect for their private lives under Article 8 and their freedom of conscience and belief under Article 9; and that allowing able-bodied people to kill themselves but preventing disabled people from receiving necessary assistance to kill themselves discriminates against them contrary to Article 14. However, the House of Lords held that the prohibition on intentionally taking life in Article 2 prevented an interpretation that would give people a right to be helped by others to die. Articles 3, 8 and 9 were concerned with conditions of life and choices as to how to live, but could not be interpreted as giving a right to decide when and how to die. (Lord Hope of Craighead accepted that the way someone chooses to pass the closing moments of life is part of the act of living, and requires respect, but denied that it could give rise to a positive obligation to give effect to a person's wish to end his or her own life by way of assisted suicide.)[34] Article 14 was not engaged because the Suicide Act 1961, while decriminalizing suicide, did not give a right to commit suicide, and the offence of aiding and abetting suicide was of general application and so was not discriminatory.

49. Mrs. Pretty petitioned the European Court of Human Rights. The Court reached the same conclusion, but by a rather different route.[35] Article 2 is clear in its terms. The prohibition on intentionally depriving people of life cannot be avoided by implying a right to choose to die from the right to live. It would be even less appropriate to interpret Article 2 as giving rise to a positive obligation on the state to allow a person to assist another to die. Such an obligation would be inconsistent with the words and main thrust of Article 2.[36] Article 3 is applicable, but the state had not itself inflicted any inappropriate treatment Mrs. Pretty. While Article 3 is capable of giving rise to positive obligations, they do not extend to allowing a third party to take another's life, or to helping a patient to take her own life: such a positive obligation would be inconsistent with Article 2.[37] Unlike the majority of the House of Lords, the Court held that Article 8.1 was engaged, because (as Lord Hope of Craighead had said in the House of Lords) the way Mrs. Pretty chooses to pass the closing moments of her life is part of the act of living, and she has a right to ask that her choice must be respected.[38] Although no previous case had expressly established that a right to self-determination is part of Article 8, 'the notion of personal autonomy is an important principle underlying the interpretation of its guarantees'.[39] However, the interference with that right was justified under Article 8.2, because (a) it was in accordance with the law, (b) it served a legitimate aim (the protection of the rights of other patients who, unlike Mrs. Pretty, would be vulnerable to an abuse of any freedom to kill),[40] and (c) it was necessary in a democratic society. On the last point, the Court held that the state's margin of appreciation was wider in cases involving protection of life than in cases where the interference was with sexual freedom.[41] Although Mrs. Pretty was not herself vulnerable to an abuse of the freedom to end life,[42] some patients nearing the end of their lives would be, and the rationale for the law was to protect those patients as a class, including vulnerable patients.[43] That being so, the blanket nature of the prohibition on assisted suicide was not disproportionate.[44] Mrs. Pretty's firm views about assisted suicide did not fall within the fields of thought, conscience and religion and belief protected by Article 9.[45] Finally, there was no violation of Article 14 taken together with Article 8. While it might violate Article 14 to treat similarly people in relevantly different situations,[46] there could be a justification on objective and rational grounds, the state being allowed a margin of appreciation in assessing whether and to what extent differences in otherwise similar positions justify different treatment. There was an objective and rational justification for not treating differently those who are and are not physically capable of committing suicide, the reasons being the same as those that led the Court to hold that the interference with the right under Article 8.1 had been justified.[47]

50. This decision gives rise to a serious doubt as to whether legislation permitting assisted suicide would be compatible with Article 2. In the Pretty case, it was argued for Mrs. Pretty that a decision such as the Court reached on Article 2 would place those countries which allow assisted suicide (such as the Netherlands and Switzerland) in breach of the Convention. The Court responded—

It is not for the Court in this case to attempt to assess whether or not the state of the law in any other country fails to protect the right to life. As it recognised in the case of Keenan,[[48]] the measures which may reasonably be taken to protect a prisoner from self-harm will be subject to the restraints imposed by other provisions of the Convention, such as Articles 5 and 8 of the Convention, as well as more general principles of personal autonomy (see § 91 [of the judgment in Keenan]). Similarly, the extent to which a State permits, or seeks to regulate, the possibility for the infliction of harm on individuals at liberty, by their own or another's hand, may raised conflicting considerations of personal freedom and the public interest that can only be resolved on examination of the concrete circumstances of the case ...[49]

51. In view of this, we cannot state categorically that a Bill to allow assisted dying would be compatible with Article 2. Nevertheless, we find the following propositions persuasive—

The State usually has a duty not to deprive people of life intentionally.

It also has a positive obligation to take appropriate steps to protect the lives of people whom it knows to be at risk of being intentionally deprived of life.

The State's positive obligations are not absolute. They depend on what is reasonable and practicable in the circumstances of each case. When considering this matter, the State has a margin of appreciation (or, in domestic courts, a discretionary area of judgment) in which the courts must, within limits, respect a properly made assessment by the primary decision-maker.

When deciding what positive steps are appropriate to protect life within its area of judgment, it is legitimate for the State to take account of other rights and the circumstances of individual cases.

Patients have other rights, beside the right to life. As established in Pretty v. United Kingdom, competent patients have a right to self-determination and personal autonomy under Article 8.1. The State may, if it sees fit, interfere with this right in order to protect the rights of vulnerable patients, and does not thereby violate either Article 8 or Article 14. However, the State may equally come to the conclusion that there are good reasons for not interfering with decisions of particular patients and with the acts of professionals pursuant to those decisions. In other words, within its area of discretion it would be legitimate for a State to decide that it would be inappropriate to take State action through the criminal law to interfere with personal autonomy so as to give positive protection to life, if the circumstances are right.

Those circumstances include, crucially, the adequacy of safeguards to ensure that vulnerable patients are not subjected to assisted dying against their wills.

52. We consider that changing the law to permit assisted dying would not in itself constitute a deprivation of life by the State. ECHR Article 2 would only be engaged when a person sought to assist someone else to die, and the State's responsibility would be to comply with its positive obligations in relation to such cases. The central question is, what are the State's positive obligations in such a case? The decisions of the House of Lords and the European Court of Human Rights in the Pretty case show that the State has a discretion to prohibit assisted suicide as a way of protecting the sanctity of life which ECHR Article 2 protects. However, those decisions do not establish that the State has a positive obligation to protect people against being helped to die at their own request, or (to put it another way) that the State would necessarily be acting unlawfully under international human rights law in permitting people to help other people to end their lives. Indeed, as noted above, the European Court of Human Rights expressly left that question open.

53. We are fortified in this view by the terms in which the International Covenant on Civil and Political Rights (ICCPR) recognizes the right to life. Article 6.1 of the ICCPR states—

Every human being has the right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.

ICCPR Article 6.1 prohibits only the arbitrary deprivation of life, not all intentional deprivation of life, and it leaves States to define the content of the right to life. Our view of the obligations arising under ECHR Article 2 is in harmony with the terms of ICCPR Article 6.1: helping someone to die is compatible with Article ICCPR 6.1 as long as it is not arbitrary. It would not be arbitrary to allow a person to assist another to die at that other person's request and subject to appropriate safeguards against abuse.

54. We have therefore concluded that ECHR Article 2 does not prohibit legislation such as the Patient (Assisted Dying) Bill. The compatibility of such legislation would depend on the extent to which allowing such a measure to be operated would be consistent with the State's positive obligations under Article 2 to take active steps to protect life. We consider that the State has a discretion to allow such a measure in order to respect some patients' rights under ECHR Article 8, if satisfied that the rights of other, vulnerable, patients would be adequately protected.

55. The circumstances in which a person could be assisted to die. We now examine the safeguards in the Bill to see whether they would be sufficient to avoid arbitrariness and to provide adequate safeguards for vulnerable patients.

56. The Bill would allow a physician to assist a qualifying patient to die in specified circumstances. A qualifying patient would be someone who—

has reached the age of majority (currently 18);

has been resident in the UK for at least twelve months before making the declaration; and

has satisfied the conditions set out below.

57. Before A makes the declaration, it would have been necessary for the attending physician—

to have been voluntarily asked by A to help him or her die without the request being the result of external pressure;

to have examined A and found him or her to be competent;

to have found A to be suffering unbearably as a result of having an irremediable condition; and

to have informed A of the diagnosis, the prognosis, the process and probably consequences of being assisted to die, and the available alternatives.

In addition, a consulting physician would have to have examined A after examining the medical notes, to have confirmed the views of the attending physician, and to have been satisfied that the required steps have been taken.[50]

58. A would have to have made a declaration, which would have to have been witnessed by two independent individuals. One witness would have to have been a solicitor holding a current practising certificate, who would have to have been satisfied that A understood the full force and effect of the declaration.[51]

59. Before taking any steps to help A to die, the attending physician would have to have satisfied himself that A had made an informed decision. The physician would have to have informed A of his or her right to revoke the declaration at any time, to have verified that the declaration is in force and has not been revoked, and to have asked the patient immediately before assisting A to die whether he or she wished to revoke the declaration.[52]

60. There would be other safeguards against abuse, including provisions about documentation and record keeping, the establishment of a commission to monitor the operation of the legislation and the documentation, and a power for the Secretary of State to make regulations determining classes of people who would be unable to make a declaration.

61. In our view, the safeguards set out in the Patient (Assisted Dying) Bill would be adequate to protect the interests and rights of vulnerable patients. They would ensure that nobody could lawfully be subjected to assisted dying without his or her fully informed consent. We consider that this would respect the right to personal autonomy and self-determination of mentally competent patients under ECHR Article 8.1, and would not be incompatible with the positive obligations of the State to protect life under ECHR Article 2.

Other private Members' Bills

62. In our view, the following private Members' Bills raise no human rights issue requiring to be drawn to the attention of either House at this time—

Fireworks Bill

Retirement Income Reform Bill

Municipal Waste Recycling Bill

National Lottery (Funding of Endowments) Bill

Equine Welfare (Ragwort Control) Bill

Marine Safety Bill

Pensions (Winding-up) Bill

Litter and Fouling of Land by Dogs Bill

Human Fertilisation and Embryology (Amendment) Bill

Animals (Electric Shock Collars) Bill