The Inner Temple Yearbook 2021–2022
The Absolute Ban on Assisted Dying and Lessons From Canada
THE ABSOLUTE BAN ON ASSISTED DYING AND LESSONS FROM CANADA From a lecture delivered by Dr Carmen Draghici (City, University of London) via webinar on 8 March 2021.
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The assisted suicide debate explores the law’s response to a human tragedy, perhaps best illustrated by the highprofile case of Mr Nicklinson, a locked-in syndrome sufferer asking for assistance to end what he perceived to be a painful, distressing and undignified life. The predicament of Mr Nicklinson and others in similar situations stemmed from the absolute prohibition of acts assisting a person in committing suicide. In England and Wales, the blanket ban is established in section 2(1) of the Suicide Act 1961, which makes “encouraging and assisting” another to commit suicide a criminal offence. The statute makes no provision for exceptions; however, the consent of the Director for Public Prosecutions (DPP) is required to institute criminal proceedings against assisters. The first legal challenge to the blanket ban heard by the House of Lords was brought in 2001 by Mrs Pretty, who wished to be assisted by her husband to travel to Dignitas in Switzerland without exposing him to the risk of being prosecuted. She complained that the DPP’s failure to grant her husband proleptic immunity from prosecution breached her rights under Articles 2, 3 and 8 of the European Convention on Human Rights (ECHR). The House of Lords disagreed. Mrs Pretty then brought proceedings before the European Court of Human Rights (ECtHR) (2002). In Strasbourg, her claims enjoyed moderate success. The Court recalled that personal autonomy is an important principle underlying article 8 ECHR guarantees, so much so that a person’s ability to conduct their life in a manner of their choosing includes the pursuit of activities perceived by others as physically or morally harmful for them, eg the refusal of life-sustaining treatment. Nevertheless, the restriction on article 8 resulting from the blanket ban on assisted dying was within the state’s margin of appreciation (which is wide in end-of-life decision-making) as well as proportionate to the aim pursued (protection of the vulnerable); the Court reasoned that there was flexibility for individual cases, in that the DPP’s consent to prosecution was required.
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The Purdy case (2009) lamented the insufficient clarity of section 2(4) of the Suicide Act as regards the DPP’s exercise of discretion to prosecute. On this occasion, the House of Lords accepted that the prohibition on assisted dying engaged article 8; that provision protects the right of terminally ill/ severely disabled people to decide when/how to die. It further accepted that it was impossible to anticipate how prosecutorial discretion will be exercised in assisted suicide cases. Therefore, the interference was not “in accordance with the law”. As a result of this judgment, in 2010, the DPP issued a Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide. Prosecution is, thus, less likely to be required in the presence of several factors: the victim had reached a voluntary, settled and informed decision; the suspect was motivated by compassion, had sought to dissuade the victim, and provided reluctant assistance; the acts were of minor assistance; and the suspect reported the suicide and cooperated with the police. The issue returned before the Supreme Court in 2014 with the Nicklinson case. Mr Nicklinson and his co-appellants claimed that section 2(1) of the Suicide Act was incompatible with the Human Rights Act 1998 (HRA) and asked the court to issue a declaration to that effect. The Supreme Court majority disagreed, on the following grounds. First, in the absence of an alternative scheme at hand, it was impossible to say with confidence that a permissive scheme could satisfactorily protect the lives of vulnerable individuals who would feel themselves a burden to their families. Secondly, the legislative process was better placed to assess controversial and complex questions. Finally, parliament had to be afforded an opportunity to consider the matter in light of the case, as the issue was already before parliament.
