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RL 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.
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. 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.
In 2017, the Conway case revived the matter in the courts. The case regarded a terminally ill patient still physically capable of the act of ending his life. Also, an alternative legislative scheme was put forward, based on a six-month prognosis and court authorisation. The appeal was dismissed in 2018 largely on two grounds. Parliament was better placed to assess such a highly contested policy issue and the conflicted evidence on the matter. Moreover, the Court of Appeal considered itself “restricted to considering the suitability of the precise scheme proposed” (which it found unpersuasive). This arguably distorted the ordinary scope of judicial review. Instead of a human rights scrutiny of the status quo, the proceedings took the form of an examination of a legislative proposal.
In Canada, the evolution of the law on assisted suicide has followed a radically different trajectory. The starting point was a blanket prohibition similar to the one in force in England and Wales (section 241(b) of the Criminal Code). A first challenge to the prohibition was brought before the Canadian Supreme Court in the Rodriguez case in 1993. The Court found that the ban engaged several rights protected by the Canadian Charter of Rights and Freedoms 1982: section 7 protects everyone’s right to life, liberty and security of the person. The restriction was, however, found to be justified: first, by the difficulty in creating effective safeguards to prevent abuse; second, by the need to uphold respect for life and discourage those who might see themselves as a burden from committing suicide.
All this changed with the Carter case in 2015; the Canadian Supreme Court was prepared to find that the blanket ban amounted to an infringement of Charter rights of competent adults who clearly consent to the termination of life and have a grievous and irremediable medical condition, causing suffering that is intolerable to the individual. First, the ban constituted indirect deprivation of life, in that it forced some individuals to take their lives prematurely for fear they would be incapable of doing so when the suffering becomes intolerable. Secondly, the ban also amounted to a breach of the right to liberty; patients were unable to make decisions concerning bodily integrity and medical care, and individual response to a grievous condition is critical to one’s dignity and autonomy. Finally, the assisted dying ban constituted a breach of the right to security of the person because individuals were left to endure intolerable suffering. The infringement had a legitimate objective (protecting the vulnerable) but was overbroad: it caught individuals outside the class it intended to protect. It was also disproportionate to the objective: a permissive regime with proper safeguards could protect the vulnerable. The Court left the specific scheme of access to medical assistance in dying to parliament.
In 2016, parliament amended the Criminal Code; the new section 241.2(1) allows medical assistance in dying for adults who suffer from a grievous and irremediable medical condition, make a voluntary request for assistance (with no external pressure), and give informed consent after being advised of available treatment/palliative care. The assessment of eligibility is entrusted to two medical professionals rather than the courts. Following a constitutional challenge in Quebec in Truchon (2019), parliament is due to amend the law further, removing the section 241.2(d) requirement that the patient’s natural death be “reasonably foreseeable”. While both Supreme Courts recognised that self-determination encompasses the right not to choose life-at-all-costs over a minimum quality of life, recently the UK’s High Court and Court of Appeal have taken a regressive approach to the doctrinal underpinnings of the ban: the sanctity-of-life principle could justify an interference with privacy rights, being subsumed under the “protection of morals” aim contained in article 8(2) ECHR. Conway also attempted to rationalise the legality of withdrawal of life-saving treatment, which “allows causes present in the body to operate”, whereas assisted dying presupposes “introducing an external agency of death”. This is a variation of the largely discredited distinction between act and omission (killing as opposed to letting die).
The debate in both jurisdictions revolved, however, around pragmatic concerns, the so-called ‘slippery slope’ argument. It was readily accepted in both courts that a permissive regime might induce certain individuals to commit suicide. The crux of the debate lies not in the existence of the ban, but in the complete absence of any opportunity for exceptional authorisation. The question was whether it is necessary to address vulnerability through a blanket ban and whose burden it was to prove that no lesser measures were adequate. According to Carter, the onus was on the government to justify the absolute prohibition. By contrast, British courts doubted the effectiveness of safeguards against error and abuse and expected litigants to provide a fully-fledged scheme.
The case-by-case retrospective prosecutorial assessment has often been invoked as evidence of proportionality. In Nicklinson, the Court indicated that the DPP practice comes close to tolerating assistance in dying. In Conway, the Court said that the “possibility of prosecution is not a high risk”. A similar permissive trend existed in Canada as a result of prosecutorial and judicial discretion. Consequently, administrative law has accepted assistance as morally/ legally permissible in certain circumstances. This negates the need for the absolute ban, since there is evidently room for departure. It also discredits the logical connection between the purpose and effects of the absolute prohibition. It further creates a conflict between primary legislation and prosecutorial practice. It is undesirable for courts to endorse a corrective tool going against the statute rather than inviting parliament to carve out a legislative exception; certainty of law is not well served by this approach. Finally, it contravenes the aim of the statute: the review of circumstances after the patient’s death offers less protection to the vulnerable.
The aforementioned litigation has also raised a fundamental constitutional question: how is the legal system structured to decide sensitive ethical matters? According to Carter, courts can determine compatibility with the Canadian Charter rights regardless of the subject matter. Conversely, the UK courts refused to issue section 4 declarations in respect of section 2 of the Suicide Act, either because the dispute was seen as non-justiciable or out of deference to parliamentary sovereignty. According to Pretty, a court is “not able to make ethical and moral decisions” because it is “not a legislative body”. In Nicklinson, consideration of sensitive issues of social policy and moral judgment were found to be better left to parliament. For several justices, the law might have been incompatible, but it was inappropriate for the Court to decide before giving parliament an opportunity to consider its position in light of the judgment. Only two justices were prepared to issue a section 4 declaration.
The prevailing approach is not unproblematic. Most section 4 declarations have arisen and are likely to arise in morally sensitive areas. There is also no rule in the HRA that a section 4 declaration cannot be issued while the matter is before parliament. The highest courts’ legal opinion is, on the contrary, a welcome contribution to debates. Moreover, a formal record of incompatibility is appropriate, as the House of Lords held in Bellinger, although parliament had already announced its intention to change the law. Importantly, there is no rule in section 4 that a viable legislative scheme must be available before issuing a declaration. The exact remedy is left to parliament; courts only signal the incompatibility. If anything, for courts to choose the ‘correct’ alternative would be out of step with the separation of powers.
Finally, the “margin of appreciation” left by Strasbourg authorities was arguably misconstrued in the UK as parliamentary discretion. Although the ECtHR found no consensus on end-of-life decision-making in Europe and hence allowed a wide margin of appreciation, domestic courts can go further. A section 4 declaration of incompatibility with the HRA is not precluded by Strasbourg’s acceptance of both blanket bans and permissive regimes as compatible with the Convention. As the House of Lords acknowledged in Re G (2008), incompatibility with the HRA can occur even where there is no breach of the ECHR at the international level; a stricter standard of review is applied by domestic courts. Domestically, the margin of appreciation left by Strasbourg is shared by all branches. Arguably, Canadian law better reconciles competing interests: on the one hand, the patient’s autonomy; on the other, societal concerns. First, ethical concerns over devaluing life: the Canadian compromise lies in a general prohibition mitigated by exceptional authorisation in limited circumstances and deferral of ethical judgment over sanctity versus quality of life to private opinion. As regards practical concerns over the protection of the vulnerable, the Canadian response was implementation of permissive legislation accompanied by safeguards against error and abuse; its credibility rests on the fact that doctors are already deemed able to assess competence to give consent to medical treatment (including withdrawal of life-saving treatment), and courts are deemed able to assess mental competence where in dispute.
The Canadian response was implementation of permissive legislation accompanied by safeguards against error and abuse; its credibility rests on the fact that doctors are already deemed able to assess competence to give consent to medical treatment (including withdrawal of life-saving treatment), and courts are deemed able to assess mental competence where in dispute.
Canadian assisted dying law when compared to the UK has demonstrated both a superior substantive scheme and a better understanding of courts’ constitutional role in monitoring human rights compliance. A scheme based on prior authorisation (following medical assessment of eligibility for assistance) aligns assisted dying regulation with other areas of medical law. Medical law recognises competent adults’ right to refuse, or request the withdrawal of, lifesustaining treatment for no reason at all. It also accepts that prolonging life-sustaining treatment for children afflicted by extreme illnesses and patients in permanent vegetative state may not be in their best interests. The sanctity-oflife justification and the absolute bar on assisted dying are inconsistent with these principles. Exceptional authorisation of assisted dying also promotes the pre-eminence of selfdetermination over collective beliefs and paternalistic concerns; it ensures tolerance of different subjective views and individual choices. Finally, it offers humane assistance in ending prolonged suffering, preventing a distressing death or a premature and traumatic self-inflicted death. Overall, the Canadian experience demonstrated the profound role of courts in upholding human rights: where an issue affects a small sector of the population but with grave consequences, the courts can place it firmly on the legislative agenda.
Dr Carmen Draghici
Academic Fellow
For the full version of the video recording: innertemple.co.uk/lectures
