A Right to die? 

The case of Diane Pretty

A right to die? The Case of Diane Pretty


Introduction

The aim of this essay is to address the legal and ethical issues arising from the case of Diane Pretty, and the alleged right to die. In doing so, it will discuss the facts, arguments and judgments of the Pretty cases; the broader context of assisted suicide in general, including academic and other opinions expressed in relation to the issue; the state of law in Switzerland; and the proposal for a new law of assisted dying in the United Kingdom. A conclusion is then offered, which attempts to synthesise the preceding arguments and offer a summary of the issues involved.

Factual Scenario

Diane Pretty was born in 1958, and met her husband Brian fifteen years later. The couple were married for twenty-three years with two children when Mrs Pretty was diagnosed in November 1999 with the degenerative condition of motor neurone disease (MND). She was forty-three years old. MND is a progressive fatal condition which affects the motor neurons in the brain and spinal chord. Motor neurones originate in the spinal cord and connect with muscle fibres to enable muscle contraction. Degeneration of these cells leads to weakness and wasting of muscles, eventually resulting in complete paralysis. The disease reaches its critical point when the muscles which control respiration are affected, and this can result in a disturbing death of suffocation. The average life expectancy of a person diagnosed with MND is between three and four years.

By June 2000, Diane Pretty had decided that she did not want to carry on living with the disease, which she felt had taken away her dignity and liberty. She claimed she was afraid of a painful and difficult death, and wished to go at a time and in a manner of her own choosing. Her husband had written a letter to the Prime Minister, asking for a change in the law relating to assisted suicide, stating that Diane wished him to assist her in ending her life, which was forbidden under the Suicide Act 1961. In August 2001, another letter was written, this time to the Director of Public Prosecutions (DPP), requesting that Brian be granted immunity from prosecution under the Act. This request was denied, and with her husband’s help, and the support of several charitable organisations, Diane Pretty launched a legal battle which lasted for almost a year. Her efforts were ultimately unsuccessful, and Diane died without assistance on 11th May 2002.

The decisions

Diane Pretty, with the help of charities such as Liberty and the Voluntary Euthanasia Society – now called Dying with Dignity – launched a claim for judicial review of the decision of the DPP not to grant Brian Pretty prospective immunity from prosecution under s.2(1) of the Suicide Act 1961 if he assisted his wife to die.

Although Mrs Pretty’s legal battle commenced in the Court of Appeal, that decision is not addressed in detail here, as a more comprehensive evaluation of the arguments and conclusions can be achieved by examining the subsequent House of Lords and European Court of Human Rights (ECtHR) decisions. It will suffice to note that the Court of Appeal held that the DPP could not suspend or disapply existing law, as this would be contrary to the Bill of Rights 1689, section two of which provides that “the pretended power of suspending of laws or the execution of laws by regall authority without consent of Parlyament is illegal.”

It was also established that the DPP’s decision not to grant immunity was not amenable to judicial review, Tuckey LJ stated that “an offence has not been committed and so the facts, which might be relevant to the exercise of the discretion to consent, are not known… Secondly, no information was put before the DPP explaining how Mrs Pretty proposed to commit suicide and what help her husband was proposing to give her and thus the DPP did not have sufficient material before him to enable him to reach a decision.”

Diane Pretty’s claim therefore rested fully on the rights provided by the European Convention on Human Rights, as implemented by the Human Rights Act 1998. As Lord Bingham states at the outset of his leading judgment, “under the common law of England [Mrs Pretty] could not have hoped to succeed.”

It seemed that the most Mrs Pretty could hope to gain from her proceedings was a declaration of incompatibility, which would not have changed the substantive law in force at that time, and therefore would not have assisted her in committing suicide even if it had been granted. This fact suggests that Mrs Pretty was acting not for the sake of herself, but for people like her, who would in the future face the same disturbing prospect of a slow and painful death if they were unable to take their own life; or the risk of prosecution of a loved one or physician, if they attempted to assist in this regard.

Counsel for Mrs Pretty delivered an argument which attempted to glean from the ECHR a right which she could rely on in order to establish that the Suicide Act 1961 was incompatible with the Convention; this hypothetical right was effectively a right to die. The argument was scrutinized – and ultimately rejected – by the House of Lords and the ECtHR. What follows is a discussion and analysis of her argument and the response of both the House of Lords and the ECtHR in each case. However, it is first necessary to further examine of the concept of a ‘right to die’.

Yale Kamisar correctly identifies four different rights encompassed by the phrase ‘a right to die’:

the right to reject or to terminate unwanted medical procedures, including life-saving treatment;
the right to commit suicide or, as some call it, the right to ‘rational’ suicide;
the right to assisted suicide, that is, the right to obtain another’s help in committing suicide; and
the right to active voluntary euthanasia, that is, the right to authorize another to kill you intentionally and directly.

Although this essay is properly concerned with the third definition, the right to assisted suicide, it necessarily delves into the other three definitions, because, as Kamisar points out in his essay, the boundaries between the discrete definitions are not easily maintained, and a discussion of one inevitably entails discussion of the others.

Kamisar states that “assisted suicide falls somewhere between the termination of life support and active voluntary euthanasia… assisted suicide takes place when another person commits the last act herself.” This is a good working definition for the purposes of this essay, and shall be adopted as such. Although Kamisar’s essay should be considered in relation to the American legal context, many of the concepts discussed therein are applicable to the current line of enquiry, which deals with the English legal system and the European Convention on Human Rights.

Kamisar rejects the claim that there is a right to commit suicide. He states that “although one usually has the capacity to commit suicide, one does not have the right to do so. The fact that we no longer punish suicide or attempted suicide does not mean that we approve of these acts or that we recognize that an individual’s right to ‘self-determination’ or ‘personal autonomy’ extends this far” Keown agrees with this analysis, and states that “the Suicide Act… did not create a ‘right’ to suicide. Suicide, though no longer a criminal offence, remains ‘unlawful’… Consider, for example, breach of contract. It is not a criminal offence to breach a contract but to claim that such conduct is lawful, or that there is a ‘right’ to breach a contract, is clearly misleading.” As will be seen later on in this essay, similar reasoning figured prominently in the judgments of the House of Lords and the European Court of Human Rights.

Article 2 –Right to Life

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.

Mrs Pretty attempted to argue that Article 2 protects not life itself but the right to life; and necessarily the right to self-determination. It was submitted that the right to die is the corollary and not the antithesis of right to life. Lord Bingham countered that there must be a right to be killed if there is a right to self-determination, and that this would be seriously adverse to the general aim of Article 2. Both the House of Lords and the ECtHR acknowledged that there are some articles which infer the implied right not to do that which those articles guarantee.

Lord Bingham noted the effect of Article 11 in conferring a right not to join an association, such as in Young v UK, and the effect of Article 9 in providing a right to freedom from any obligation to express thoughts or convictions, for which he cited the authoritative writings of Clayton and Tomlinson.

The ECtHR affirmed the centrality and pivotal role of the right to life, without which no other right could be enjoyed. It noted how the state had not only a negative duty not to take life, but also a positive duty to protect the lives of its citizens, and reiterated that the emphasis in the authorities was the duty of the state to preserve and protect life. It was therefore ‘not persuaded’ that the right to life could involve a negative aspect, and concluded that “Article 2 cannot, without a distortion of language, be interpreted as conferring the diametrically opposite right, namely a right to die; nor can it create a right to self-determination in the sense of conferring on an a individual the entitlement to choose death rather than life.”

Lord Bingham cited the case of Osman v United Kingdom as being adverse to Mrs Pretty’s argument that Article 2 supports a right to die. In this case it was acknowledged by the ECtHR that Article 2 imposed a duty on member states not only to refrain from taking the life of its citizens, but also to take active steps to protect the lives of its citizens. This should be achieved by utilising the police force to protect vulnerable citizens where it was reasonable to do so, whilst taking account of the limited resources available. It seemed that where there was an established duty to protect life, there could not also be a duty to take life, or even to assist someone in taking their life.

Lord Bingham drew further support from the case of X v Germany in which a prisoner on hunger strike was force fed, and consequently claimed maltreatment contrary to Article 3. This argument was rejected by the court, which held that the authorities were correct to intervene in order to preserve the life of the prisoner notwithstanding the fact that this would result in degrading elements of treatment. This case seems to suggest that the right to life takes precedence over the right to freedom from degrading treatment, even if the individual concerned attempts to waive their right to life.

Another pertinent case was that of Keenan v United Kingdom in which a young prisoner committed suicide. His mother launched a legal claim relating to the prison authority’s failure to take positive action to protect his life. In this case it is interesting to note that one of the Government’s arguments was that “special considerations arise where a person takes his own life, due to the principles of dignity and autonomy which should prohibit any oppressive removal of a person’s freedom of choice and action.” This argument appears to have supported Mrs Pretty’s contention that a right to commit suicide exists, and should not be interfered with because doing so would jeopardise the principles of autonomy and dignity.

In the court’s judgment it was stated that there were two issues to be addressed in determining whether the prison authorities were liable for a breach of Article 2, namely “whether the authorities knew or ought to have known that Mark Keenan posed a real and immediate risk of suicide and, if so, whether they did all that reasonably could have been expected of them to prevent that risk.”

It was held that they were not liable because even though they were aware that Keenan was at risk of suicide, they had taken all reasonable steps to prevent him from committing this act. The important principle to be derived from the case is that Article 2 imposes a duty to prevent an individual from taking their life. It would be difficult, therefore, to assert that the same article is capable of imposing the exact opposite duty, viz. to assist someone to take their life.

Lord Bingham conceded that “these two cases are different from the present, since Mrs Pretty is not in the custody of the state. Thus the state’s positive obligation to protect the life of Mrs Pretty is weaker than in such cases.” He also affirmed that “it would however be a… quite impermissible step to proceed from acceptance of that proposition to acceptance of the assertion that the state has a duty to recognise a right for Mrs Pretty to be assisted to take her own life.”

Mrs Pretty also attempted to argue that countries which subscribed to the Convention and did not criminalise assisted suicide would be in breach of the Convention if that act was prohibited by the Convention under Article 2. However, the ECtHR would not entertain this line of reasoning, stating “it is not for the court in this case to attempt to assess whether or not the state of law in any other country fails to protect the right to life.”

The ECtHR surmised in relation to this point that “even if circumstances prevailing in a particular country which permitted assisted suicide were found not to infringe Article 2 of the Convention, that would not assist the applicant in this case, where the very different proposition – that the United Kingdom would be in breach of its obligations under Article 2 if it did not allow assisted suicide – has not been established.”

Lord Bingham further submitted that the conduct proposed by Mrs Pretty was contrary to two important principles of English law. The first was the distinction between suicide and assisted suicide, the former of which was no longer illegal, and the latter of which had retained its status as an offence under s.2(1) of the Suicide Act 1961.

The second principle was the distinction between the withdrawal of medical treatment with the intention to end life and the administering of a lethal substance to achieve the same end. His Lordship drew on the seminal authority of Airedale NHS Trust v Bland in order to support these propositions. Here it was categorically stated by Hoffman LJ that “sanctity of life entails its inviolability by an outsider”

The distinction between cessation of life saving treatment and the administration of treatment intended to terminate the life of another – with no therapeutic or palliative objective – is, however, ethically and conceptually questionable. Margaret Battin insists that “we must recognise that the distinction between killing and letting die does not succeed in carrying the moral weight often placed on it” Battin submits that killing is not always automatically ‘worse’ than letting die. This proposition appears to reject Hoffman LJ’s categorical ‘inviolability of life by an outsider’ principle. She posits that “each such issue needs to be argued on its own merits, and the conceptual distinction between killing and letting die cannot do all the work instead.” Battin suggests that “killing and letting die are much like teaching and letting learn: acts and omissions, doing and lettings, of which each must be examined more closely for its moral features… we cannot sweep these moral problems under the rug with categorical conceptual claims.”

Here Battin indicates that the moral difference between killing and letting die has been obfuscated by the conceptual difference, in a bid to find an easy answer to the difficult moral questions the distinction gives rise to. John Keown states similarly that “there is surely no significant moral difference between a doctor intentionally killing a patient by, say, choking the patient, and by deliberately failing to stop the patient from choking, when the doctor could easily do so, precisely so that the patient should die.” Another way figuratively to construe the distinction would be to suggest that in Airedale NHS Trust v Bland and cases like it, the law permits a relaxation of the duty of care a doctor owes to his patient. This would allow for the exception Keown identifies without creating moral ambiguity. In Airedale NHS Trust v Bland, the doctors no longer had a duty of care toward Anthony, thus negating their positive obligation to intervene to save his life with feeding tubes. Conversely, a duty of care, and positive obligation, would still exist where a patient started to choke on their own vomit, and a doctor failed to take action to prevent this from occurring. It could be argued that, in the case of Mrs Pretty, the moral issues were not properly addressed in the House of Lords or the ECtHR, and this may have lead to injustice.

On what he perceives to be a religious commandment not to take life, Peter Singer quotes Arthur Hugh Clough’s famous couplet:

“Thou shalt not kill; but need’st not strive
Officiously to keep alive”

He argues that the lines exhibit an inherent irony and suggests “Clough would therefore have supported an extended view of responsibility.” For his part, Singer suggests that the traditional ethic places undue weight on the ‘fine line’ between ending life by withdrawing treatment, and ending it by a lethal injection.

Another ostensibly tenuous distinction is between voluntary active euthanasia (VAE) and assisted suicide. The former is classed as homicide, the penalty for which is life imprisonment. The latter has a maximum penalty of 14 years, and leaves discretion to the Director of Public Prosecutions whether or not to prosecute. Michael Freeman highlights the difficulties concerned in distinguishing between the two acts:

“…at which point does assisting a suicide become voluntary active euthanasia? If you hand her an open bottle of paracetamol and she consumes the contents this is assisted suicide… And what if the person wishing assistance in suicide is so physically disabled that she asks her assistor to push the tablets down the back of her throat? Have we now crossed over from assisted suicide to voluntary active euthanasia? And does it matter?”

In a case such as Diane Pretty, where the patient suffers from profound physical disability, the question of when assisted suicide becomes VAE is central to determining whether the proposed act is, or should be, legal. In relation to the distinction between these two acts, Freeman asks:

“Is there a moral difference? Indeed, is there a moral difference between assisting suicide and withdrawing treatment? Was the ‘Rubicon’ not crossed when the House of Lords allowed nutrition and hydration to be withdrawn from Tony Bland? In refusing Mrs Pretty assistance with her suicide it seems that we treat the competent worse than we do those who lack competence (like Bland). And we treat those who are terminally ill worse that those who have many years of pain-free life… ahead of them.”

Kamisar pursues a similar line of enquiry, and poses the question “how can these distinctions be defended on principle or maintained in practice? Once we cross the line between the termination of life support and the active intervention of another to promote or to bring about death, how can we – and why should we – stop short of active voluntary euthanasia?” He submits that the line between the two acts has been either ‘blurred’ or ‘completely obliterated’, noting the interchangeability of the terms in prominent academic literature. He proceeds then to question why or how, if voluntary active euthanasia is accepted, it should be limited to the terminally ill.

His commentary leads inexorably down what could be described as a second manifestation of the slippery slope. The first manifestation deals with the slippery slope in terms of abuse of process, and is discussed further below. The second describes it in terms of definitional ambiguities and the collapse of moral and conceptual boundaries. It could be for these reasons that the House of Lords and ECtHR were so reluctant to allow even the limited expansion of the law which Diane Pretty requested.

Keown summarises the argument to maintain a distinction between assisted suicide and VAE: “Campaigners… argue that… PAS is an expression of the patient’s autonomy, the patient’s right to self-determination, and the patient remains in control, whereas VAE is an exercise in medical decision-making, if not medical paternalism, and the doctor is in control.”

However, as he acknowledges, the veracity of such assertions is questionable. A patient can no more demand that a doctor assists him to commit suicide than he can demand that the doctor kills him. Furthermore, in the case of VAE the patient necessarily exercises the same level of autonomy as in assisted suicide; otherwise the killing would constitute involuntary or non-voluntary euthanasia. As Keown states: “Why should a patient who wants the doctor to administer a lethal injection (and a doctor who wants to comply) not have their autonomy respected?”

Lord Hope of Craighead concluded that “the margin between assisting suicide and euthanasia is so slender in Mrs Pretty’s case as to be impossible to determine in the absence of a detailed account of the proposed act.”

Article 3 – Prohibition of Degrading Treatment

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

It was recognised by the House of Lords and the ECtHR that the state has a duty not only to refrain from inflicting inhuman and degrading treatment, but also to protect individuals from such treatment administered by others. D v United Kingdom was recognised by Lord Bingham as the most helpful authority to Mrs Pretty in relation to Article 3. Here, a man suffering from AIDS was threatened with deportation to a jurisdiction where this disease would not be treated properly. In this case, stated His Lordship, “the state was proposing to take direct action against the applicant, the inevitable effect of which would be a severe increase in his suffering and a shortening of his life.” Mrs Pretty attempted to draw an analogy by claiming that the DPP’s refusal to grant prospective immunity could be interpreted as causing her to continue suffering when this could be alleviated. She argued that the state had a duty to allow Mr Pretty to assist her to commit suicide in order to cease the degrading treatment she was suffering from.

The ECtHR would not entertain this argument, and asserted that “the situation of the applicant is… not comparable with the case of D v UK… There is no comparable act of ‘treatment’ on the part of the United Kingdom in the present case.” Lord Bingham drew attention to the distinction between positive and negative obligations, and stated that “while states may be absolutely forbidden to inflict the proscribed treatment on individuals within their jurisdictions, the steps appropriate or necessary to discharge a positive obligation will be more judgmental, more prone to variation from state to state, more dependent on the opinions and beliefs of the people and less susceptible to any universal injunction.” In other words, the duty to protect citizens from degrading treatment was not absolute. His Lordship concluded that there was nothing in the Convention to suggest that the state was under an obligation to sanction a lawful means to allow Mrs Pretty to take her own life.

Article 8 – Right to Private and Family Life
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.
Mrs Pretty attempted to argue that Article 8 confers a right to self-determination. It was submitted that the Suicide Act 1961 s.2(1) interfered with the right to self-determination, and therefore it was for the United Kingdom to show that it met the Convention tests of legality, necessity, responsiveness to pressing social need and proportionality, as stipulated under Article 8(2). The House of Lords were in general agreement that Mrs Pretty’s rights under Article 8 were not engaged, but if they were, then the interference with them was justified under the forgoing criteria. Lord Hope submitted that Article 8 was engaged as Mrs Pretty had the right to self-determination. However, he concluded that recognising this fact would not imply that there was an obligation on the state to ensure this right to self-determination in choosing which way to die.

The ECtHR agreed with Lord Hope that Mrs Pretty’s Article 8 rights were engaged. The ECtHR determined that “the only issue arising from the arguments of the parties is the necessity of any interference.” Both the House of Lords and the ECtHR referred to Rodriguez v A-G of Canada the facts of which were closely analogous and legally indistinguishable from the case of Mrs Pretty. Here there was an examination of the rights provided under the Canadian Charter of Rights and Freedoms. The Canadian court concluded that rights relating to personal freedom and integrity were engaged, but the interference with these rights was justified in order to protect others, especially the vulnerable. In the Canadian Supreme Court, four of the nine judges accepted Rodriguez’s argument that the law discriminated against those who were unable physically to commit suicide by proscribing assisted suicide. She lost her argument by a bare majority.

Protection of the vulnerable was also a paramount consideration in the reasoning of the House of Lords. Lord Bingham drew on several authoritative sources in his argument that a blanket ban on assisted suicide was justified, although Freeman has described this approach as a ‘boot-strap’ and suggested that “it does not establish grounds for disengagement under Article 8(2)”

In considering Mrs Pretty’s request that a judgment be given based on the distinct and unique facts of her case, Lord Bingham relied upon the well settled principles of law espoused by Dr Johnson, that “laws are not made for particular cases but for men in general” and that “to permit a law to be modified at discretion is to leave the community without law.”

One of the authorities on which Lord Bingham drew was the report of the House of Lords Select Committee on Medical Ethics. The Committee considered the issue of voluntary euthanasia in considerable depth. They stated that the “prohibition [of intentional killing] is the cornerstone of law and of social relationships. It protects each one of us impartially, embodying the belief that all are equal… individual cases cannot reasonably establish the foundation of a policy which would have such serious and widespread repercussions.” They also stated that “dying is not only a personal or individual affair. The death of a person affects the lives of others, often in ways and to an extent which cannot be foreseen.” Here they echo the argument posited by both the House of Lords and ECtHR which seeks to balance the rights of the individual provided in Article 8, with the safety of the general public acknowledged in Article 8(2).

The Committee also emphasised its anxiety to protect the vulnerable, “the elderly, lonely, sick or distressed – would feel pressure, whether real or imagined, to request early death.” They categorically affirm that “we do not think it possible to set secure limits on voluntary euthanasia.” On the contrary, Battin submits, “I… think it is possible to erect protections against… general, large-scale, ‘normal’ abuse that many forms of the slippery slope argument predict, and thus render unwarranted the large-scale limitation of patient choice that laws prohibiting euthanasia and assisted suicide represent.” Amongst Battin’s suggestions are counselling and psychological evaluation of the patient; a continuity requirement or waiting period; and the extensive documentation and reporting of any procedure involving euthanasia or assisted suicide. Her suggestions appear sensible and feasible, and go some way to alleviate the concerns expressed by the ECtHR, House of Lords, and the Select Committee.

As Freeman correctly points out, “although none of the Lords specifically refer to the ‘slippery slope’, this is implicit in their arguments that the prohibition, even if objectionable under Article 8(1), can be saved under Article 8(2). The disastrous consequence they identify is abuse.” Battin engages in a thorough analysis of the slippery slope concept, and suggests that “adequate evaluation of slippery slope arguments must involve identifying and ascertaining the actual causal force assumed to be at work.” She recognises that “various kinds of pressures, including individual, institutional, and societal ones, that might occur to push a culture from humane practices to morally repugnant ones.” The strength of this argument varies according to the strength of the opposing argument, that which suggests effective safeguards can be implemented.

It was feared by judges in cases such as Rodriguez and Pretty that if assisted suicide were to be permitted, this would provide a new and undesirable defence to murder, and may result in the undue influence of dying relatives by unscrupulous potential heirs, thus vitiating the validity of the consent of the dying individual. This problem has been encountered before in another medico-legal context. In Re T a young woman who refused consent to a blood transfusion on the basis of her religious beliefs as a Jehovah’s Witness was found to have been unduly influenced by her mother. The court, therefore, has experience in dealing with the validity of consent in a variety of contexts, and it is suggested that in no way should this element of the slippery slope argument be seen as decisive.

Article 14 – Prohibition of Discrimination

Mrs Pretty attempted to rely on Thlimmenos v Greece. Here it was held that it was discriminatory to fail to treat an individual differently who was different in relevant terms from other individuals. Mrs Pretty claimed that her disability differentiated her from other able-bodied individuals who were physically capable of committing suicide without assistance.

Lord Bingham held, however, that a claim on this ground must fail; because none of Mrs Pretty’s other Convention rights had been engaged. Article 14 would only operate to prevent discrimination in relation to one of the other Articles. The ECtHR had found that Mrs Pretty’s Convention rights under Article 8 were engaged, and therefore it was necessary for them to consider whether Article 14 was effective. The ECtHR held that “cogent reasons exist under Article 14 for not seeking to distinguish between those who are able and those who are unable to commit suicide unaided… an exemption for those judged to be incapable of committing suicide would seriously undermine the protection of life which the 1961 Act was intended to safeguard and greatly increase the risk of abuse.” The court however, failed to give detailed reasons as to why it thought this would be the inevitable scenario.

In relation to Article 14, Lord Hope considered that there would be ‘disturbing consequences’ for society if Mrs Pretty’s claim were to be accepted.

Assisted suicide in Switzerland

Switzerland has long been known as a place of neutrality and security. It is a member of the Council of Europe, and hence a signatory to the European Convention on Human Rights. It is also the only country in the world which condones assisted suicide by non-physicians. Since 1937 assisted suicide has been governed by Articles 114 and 115 of the Swiss Penal Code, according to which it is not an offence if there is no personal motive or gain for those providing assistance. However Article 114 does not include medical decisions to shorten life, or voluntary euthanasia.

Prof. Dr. Christian Schwarzenegger identifies three problems which need to be overcome in order for assisted suicide to occur legally in Switzerland. The first question to be asked is whether the individual seeking death has legal capacity pursuant to Article 16 of the Swiss Civil Code. If that person has no legal capacity, then their request has no legal validity under Article 18 of the Civil Code, and assisting them to terminate their life does not constitute assisted suicide.

The second question to be addressed is that of who is to carry out the administering of the lethal substance. If the person assisting directly causes the death of the victim, the act does not constitute an assisted suicide under the terms of Article 115. This type of act is classed as a case of direct active euthanasia, which is illegal. If the act is carried out by the victim themselves, the person assisting in the suicide can only be held criminally liable if they act for ‘selfish reasons’, such as pecuniary profit, publicity, or to receive an inheritance. The final question to be addressed is whether a doctor is permitted to prescribe lethal medication for the purposes of suicide. In cases where a terminal illness is diagnosed, the relevant law permits the prescription of lethal barbiturates to eliminate pain. This is very similar to the UK doctrine of double effect, whereby a doctor can administer barbiturates with the intention to eliminate pain, but with the foresight that they may induce or accelerate death.

Since the decision of Pretty v UK, numerous cases of ‘death tourism’ have been reported. The first such widely reported case concerned Reginald Crew, a 74 year old man from Liverpool who had motor neurone disease.  On Monday 20th January, Mr Crew ended his life with an overdose of barbiturates prepared by a doctor in Switzerland. The right to die association, Dignitas, assisted in Mr Crew’s death. It is the only Swiss organisation to accept foreigners into its program of assisted suicide.

In the case of Pretty v UK the ECtHR stated that “It is not for the court in this case to attempt to assess whether or not the state of law in any other country fails to protect the right to life… 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 raise conflicting considerations of personal freedom and the public interest that can only be resolved on examination of the concrete circumstances of the case.”

The dual concepts of proportionality and the margin of appreciation have the result that assisted suicide may be legal in one country which subscribes to the Convention, and illegal in another; and in neither case will the legality or illegality of the act, as the case may be, conflict with the rights guaranteed by the Convention. The ECtHR states clearly that “it is primarily for states to assess the risk and the likely incidence of abuse if the general prohibition on assisted suicides were relaxed or if exceptions were to be created.”

In relation to interference with private life, it stated that “in determining whether an interference is ‘necessary in a democratic society’, the court will take into account that a margin of appreciation is left to the national authorities, whose decision remains subject to review by the court for conformity with the requirements of the Convention.”

Here it is made clear that different states may impose different laws relating to assisted suicide, and different restrictions on the right to private life, which is engaged in relation to assisted suicide, and in each case the legality or otherwise of these choices will depend on the circumstances and context of any case which challenges their legality. This is the essential nature of the Convention; its objective is not to guarantee uniformity of laws throughout its signatory states, or even to guarantee uniformity in the application of rights guaranteed by the Convention.

Re Z concerned an injunction which had been issued by the court on application of the local authority of Mrs Z, who had expressed a desire to travel to Switzerland in order to obtain assisted suicide. The injunction, which had been issued to prevent her from leaving the country, had been granted on the basis that she was classed as a vulnerable individual. Because of her disability, she was not capable of organising the trip to Switzerland herself, and she required her husband’s full assistance in this matter. In his ruling in the High Court, Hedley J stated that “although it is the case that all that Mr and Mrs Z propose to do is not criminal under the law of Switzerland, it seems to me inevitable that by making arrangements and escorting Mrs Z on the flight, Mr Z will have contravened Section 2(1) [of the Suicide Act 1961].”

Because it was held that Mrs Z was a fully competent individual, Hedley J concluded that “Mrs Z’s best interests are no business of mine.”  Hedley J drew on the jurisprudence of Airedale NHS Trust v Bland in weighing up the conflicting principles of autonomy and the sanctity of life. It was held that the injunction should not be extended, because the duty of the local authority did not go so far as to seek to protect a fully competent individual. However, the criminal liability of Mr Z was a decision left to the Police and the CPS. It was noted by Hedley J that “Parliament has committed to the DPP the discretion as to whether to permit a prosecution.”

The ECtHR also noted in Pretty v UK that “flexibility is provided for in individual cases by the fact that consent is needed from the DPP to bring a prosecution… It does not appear to be arbitrary to the court for the law to reflect the importance of the right to life, by prohibiting assisted suicide while providing for a system of enforcement and adjudication which allows due regard to be given in each particular case to the public interest in bringing a prosecution, as well as to the fair and proper requirements of retribution and deterrence.”

However, this claim appears dubious in light of the fact that the DPP has not issued any guidance as to what factors are to be taken into account when deciding not to prosecute. According to Lord Hope in the House of Lords, “the Director is entitled to form a policy as to the criteria which he will apply when he is exercising his discretion under s 2(4) of the 1961 Act… But I do not see how the Director could be compelled to issue a statement of policy.”

It could it be submitted then, that there is a limited right to die which is exercisable by travelling to Switzerland to take advantage of the liberal attitude to assisted suicide. Some have argued, however, that this should not be the only solution open to individuals. Deborah Annetts, Chief Executive of the Voluntary Euthanasia Society (now Dignity in Dying) has stated that “it is of immense public concern that people with terminal illnesses are forced to travel to a foreign country to end their days, in unfamiliar surroundings, and without proper safeguards in place.” She continued “If the government intends to continue denying people such as Diane Pretty the legal choice of asking for medical help to die, it must at least defend its stance with hard facts. What research there is suggests that leaving people to seek help in secret creates serious problems, which need to be addressed through transparency and regulation.”

Assisted Dying for the Terminally Ill Bill

Lord Joffe’s Assisted Dying for the Terminally Ill Bill has so far undergone two incarnations. The first was introduced in the House of Lords on January 2004. This was followed shortly afterwards by an extensive report by a House of Lords Select Committee published in April 2005. The report described and analysed the underlying ethical principles of the bill; the practical issues thereof; the overseas experience; and public opinion. It also offered several conclusions and recommendations. One of the most important of these was that there should be a clear distinction drawn in any future bill between assisted suicide and voluntary euthanasia.

The second version of the bill was published almost two years later in November 2005. The recommendation to distinguish between assisted suicide and voluntary euthanasia was clearly taken into consideration, and the second bill does not authorise voluntary euthanasia. Instead it provides that where the patient is unable to consume an oral preparation, then the doctor may assist the patient to die “by prescribing and providing such means of self-administration of that medication, as will enable the patient to end his own life.”

If the bill is adopted, it would put the state of the law in the UK on a similar footing to that in Switzerland. The main difference will be that in Switzerland the medical profession is not directly involved in the assistance of suicide. Under the proposals of the bill, British doctors would be directly involved in the process, from establishing the patient’s competence, to prescribing the lethal doses of medication, or assisting in other ways if oral consumption is not possible.

The bill is not expected to become law as it lacks government support, and there is still the weight of strong religious opposition against it. Richard Harries, the Bishop of Oxford, has stated “I believe that there is a fundamental philosophical flaw behind this Bill which, indeed, would be behind any successor Bill. It concerns autonomy, which cannot be taken as the overriding principle… We become persons in relation to other persons… We are interdependent, there is mutuality, and our meaning and value are discovered just as much through other people’s attitudes to us when we are dependent as they are in the choices that we make.”

Harries seeks to limit the significance of autonomy in defining the person, and appears to rank it below relationships. It might be argued that he fails to acknowledge that the value of life cannot be redeemed by relationships when, in a case such as Diane Pretty, a disease has all but taken away the capacity to relate.

John Harris argues that “the point of choosing and having the freedom to choose between competing conceptions of how and indeed why, to live, is simply that it is only thus that our lives become in any real sense our own. The value of our lives is the value we give to our lives.”

Harries refutes this claim, and suggests that “our lives have just as much shape, meaning and value when we are in positions of total dependence on other people. For much of our lives we are dependent on other people and may not be capable of making significant choices at all – in the womb, as a child, through periods of sickness, and perhaps for quite a long period at the end of our life. A loss of autonomy does not signify any loss of meaning or value from our lives.”

This assertion is counterintuitive. When a person suffering from MND becomes incarcerated by the disease, would they sincerely be able to maintain that their life had not lost any meaning or value? Diane Pretty wasn’t able to do so. In an interview with Panorama, when asked whether life isn’t always better than death she replied “I am dead.”  When asked about her quality of life, she simply replied “What life?”  It seems adverse to reason to compare the condition of a person suffering from MND to that of a foetus or a child. A child may be totally dependant on its parents, but this is a transient state, common to all children. Moreover it is a natural state, and one which is inherently good, and it is not comparable to a dependence which inflicts suffering such as that imposed by MND.

Conclusion

Diane Pretty died without assistance on 11th May 2002, and nobody will ever know how much pain and discomfort, if any, she experienced in her final hours. Through the courts she sought a right to die, and this right was denied to her both at common law and under the European Convention on Human Rights.

Her case became the focus of a debate on assisted suicide, palliative care, euthanasia and the meaning of life. Lucid and persuasive arguments have been built up on both sides of each discrete debate. One of the most prominent of these debates is that concerning autonomy and the sanctity of life.

Autonomy as a principle is both legally and ethically justified. Vitalists argue that an individual has the right to exercise autonomy except where the exercise of his autonomy will interfere with the sanctity of life. They argue that a patient expressing a desire to end their life should have neither the right nor the will to do so. They suggest, in other words, that it is wrong for them to want to end their lives, that such a desire is misconceived, ethically flawed, and morally untenable.

The ECtHR recognises a right to exercise autonomy in the context of private life, under Article 8, except where this will interfere with the rights of others under Article 8(2). As no empirical evidence was marshalled to support the contention that allowing Mrs Pretty a right to assisted suicide would inevitably interfere with the rights of others, it was sufficient that there was a possibility that such interference would occur. As the ECtHR stated “Clear risks of abuse do exist, notwithstanding arguments as to the possibility of safeguards and protective procedures.” It was therefore the mere risk of abuse which prevented a right to assisted suicide from being recognised. It might be argued that this risk of abuse is unfairly weighted against the actual abuse of the rights of people like Diane Pretty. However, this balancing act is sensitive, and one which the ECtHR was not willing to rule upon, as the margin of appreciation properly left this to individual states.

Keown asserts that “the ‘right to choose’ only arguably makes any moral sense in the context of a moral framework which enables us to discern what it is right to choose.” Further support is added to this argument when considering cases such as R v Brown where autonomy in relation to consenting to bodily harm was limited for policy reasons. Therefore, as Keown states, “the law has, historically, provided scant support for an absolutist understanding on individual autonomy.”

John Finnis states that “if one is really exercising autonomy in choosing to kill oneself, or in inviting or demanding that others assist one to do so… one will be proceeding on one or both of two philosophically and morally erroneous judgments: (i) that human life in certain conditions or circumstances retains no intrinsic value and dignity; and/or (ii) that the world would be a better place if one’s life were intentionally terminated.”

These are broad, sweeping statements which appear to have no rational foundation. It would seems untenable for Finnis to have said to Diane Pretty, “your judgment that your life contains no value or dignity is erroneous.”

In a reply to Finnis’s comments, John Harris states that “both of Finnis’s claims here are false… one can sensibly hold that such intrinsic value as life rains is not so important as to deny people the right autonomously to terminate their own life along with its remaining intrinsic value. It is rational to believe that life without autonomy… is not worthless but simply not worth enough.”

In this debate is embedded an illustration of the classic conflict between autonomy and the sanctity of life. This autonomy was recognised both by the House of Lords and the ECtHR, but it was circumscribed in order to preserve the safety of the vulnerable members of society.

Peter Singer suggests that “the desire for control over how we die marks a sharp turning away from the sanctity of life ethic… the traditional ethic will be unable to accommodate the present demand for control over how we die.” Writing in 1994 he speculated that “Good medical practice in the case of a terminally or incurably ill patient will come to be seen as including the provision of euthanasia, if the patient makes a free and well-informed request for it.” Over a decade later this has not, in the UK at least, occurred. He disassembles what he refers to as the ‘old ethic’, which he perceives to be based on Christian foundations. On the state’s endeavours to discourage suicide he argues “the state has no grounds for interfering, once it is satisfied that others are not harmed, and the decision is an enduring one that has been freely made, on the basis of relevant information, by a competent adult person.”

As we have already seen, however, in the case of Diane Pretty, the state did feel it was necessary to intervene in order to protect others; as did the ECtHR. The safeguards he suggests have also been examined and argued one way or the other by academics, judges, and practitioners. It has been seen that they have been deemed not to go far enough to prevent the risk of harm to others. Until persuasive evidence can be marshalled to prove that this risk can be alleviated, it is unlikely that another person in the situation of Diane Pretty will be able to obtain assisted suicide in the UK in the future.