News of the death of Noel Conway earlier this year has again led to calls for a change in the law to allow people the ultimate expression of autonomy by allowing them to choose when to die and to be given lawful assistance to do so (BBC News, 2021).
Noel Conway, who had motor neurone disease, was a campaigner for a change in the law and took his case to court, arguing that the law forbidding assisted dying violated his rights under Article 8 of the European Convention on Human Rights (ECHR) (Council of Europe, 1950).
The right to respect for a private and family life, home and correspondence
Article 8 of the ECHR is an example of a qualified human right. It begins by asserting in Article 8(1) that:
‘Everyone has the right to respect for his private and family life, his home and his correspondence.’
It then adds considerable qualification to that right under Article 8(2) that gives considerable scope for derogation:
‘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.’
The concept of private life is broadly defined by the European Court of Human Rights and includes matters of individual freedom such the right to choose one's sexual identity (R v North West Lancashire HA Ex p. D; A; G [1999]) and how one looks and dresses (R (on the application of E) v Ashworth Special Hospital [2001]). It also includes matters concerning consent to treatment, autonomy and dignity (R (on the application of Oliver Leslie Burke) (Respondent) v General Medical Council (Appellant) & The Disability Rights Commission & 8 Others (Interveners) [2005]).
Article 8 and assisted suicide
In R (on the application of Conway) v Secretary of State for Justice [2017], Noel Conway argued that the blanket prohibition on assisting a person to die under the provisions of the Suicide Act 1961, section 2, was a disproportionate interference with his rights under Article 8 of the ECHR and sought a declaration of incompatibility under the Human Rights Act 1998, section 4.
The Suicide Act 1961 (as amended) provides that:
‘A person commits an offence if they intentionally do an act capable of encouraging or assisting the suicide of another person.’
Assisted suicide is therefore prohibited whether performed by a relative, friend or a doctor, and a person who does so would be liable on conviction to 14 years in prison.
The aim of the prohibition is to protect vulnerable people from being pressured into killing themselves by unscrupulous family members or friends. In R v McShane [1977] a daughter was found guilty of trying to persuade her 89-year-old mother, who was residing in a nursing home, to kill herself so that she could inherit her mother's estate. The police obtained incriminating evidence of the daughter by using a hidden camera at the nursing home that showed the daughter handing her mother drugs, hidden in a packet of sweets, and pinning a note on her mother's dress telling her not to bungle it.
Although such protection is laudable, the same provisions prevent people who cannot take their own lives because of a debilitating condition from being helped to do so by a friend, relative or health professional.
In Pretty v DPP [2001] the House of Lords refused to grant Diane Pretty's application for a judicial review challenging the decision of the Director of Public Prosecutions, who had refused to give an undertaking that he would not prosecute her husband if he assisted in her suicide at some time in the future.
The European Court of Human Rights subsequently confirmed that the Suicide Act 1961 did not violate the European Convention on Human Rights because:
- The right to life protected under Article 2 did not include a right to die at a chosen time
- It was not the Government subjecting Mrs Pretty to inhuman or degrading treatment under Article 3 but the motor neurone disease from which she suffered and
- Mrs Pretty's right to respect for her private life under Article 8 was not absolute. The right could be restricted by the Government passing legislation that had the legitimate aim of protecting vulnerable individuals from being forced into agreeing to be assisted to die
- Banning assisted suicide therefore was not a disproportionate or unlawful action by the Government.
However a softening of this stance was signalled in R (on the application of Purdy) v Director of Public Prosecutions [2009], when the House of Lords ruled that the Director of Public Prosecutions should issue guidelines for prosecutors setting out when it would be in the public interest to bring charges under the Suicide Act 1961, section 2.
Currently the Crown Prosecution Service (CPS) is unlikely to prosecute relatives and friends of a person who makes a clear and consistent request to be helped to die if they act out of compassion.
A woman who bought a lethal drug on the internet and mixed it into a form that could be taken by her parents who had entered a suicide pact was not prosecuted because the CPS decided that it would not be in the public interest to do so. The woman had acted out of compassion in response to a direct request from her parents (Marsden, 2014)
Those who forced the person into killing themselves or sought to profit from their death still face prosecution (Director of Public Prosecutions, 2010).
The guidelines also state that public interest factors that tended to favour prosecution included circumstances where:
‘The suspect was acting in his or her capacity as a medical doctor, nurse, other healthcare professional, a professional carer [whether for payment or not], or as a person in authority, such as a prison officer, and the victim was in his or her care’
Director of Public Prosecutions 2010: 6
This clause in the guideline is seen as forbidding nurses and other health professionals from participating in action that would assist the death of patients in their care. However, in R (on the application of AM) v DPP [2013] the Court of Appeal considered an appeal brought by a man who wished to end his life but needed the assistance of a third party to do so. He argued that it should be lawful for a doctor or nurse to help him travel abroad to die with the help of a suicide organisation in Switzerland. He argued that, while the Director of Public Prosecutions' policy provided clarity for spouses, friends or family with emotional ties to the person committing suicide, the policy did not give adequate clarity to those with no emotional ties to the person committing suicide, such as health professionals.
The Court of Appeal held that it was not sufficient for the policy merely to list the factors taken into account when deciding whether to prosecute, rather the policy should indicate the weight accorded to the fact that the helper was acting in their capacity as a health professional so that the application of the policy in relation to health professionals such as nurses was more foreseeable.
Interference not violation of Article 8
In R (on the application of Conway) v Secretary of State for Justice [2017] the Court of Appeal held that the right of an individual to decide how and when to end their life was an aspect of the right to respect for private life protected by Article 8 (R (on the application of Nicklinson) v Ministry of Justice [2014]).
The Court of Appeal agreed that Section 2 of the 1961 Act did interfere with that right. It could, however, be a valid interference if it satisfied the requirements of Article 8(2), and was necessary in a democratic society for the purposes of the protection of health and morals and the protection of the rights of others.
This it did by:
- Protecting the weak and vulnerable
- Protecting the sanctity of life as a moral principle
- Promoting trust and confidence between doctor, nurse and patient, which encourages patients to seek and then act upon medical advice
The Court of Appeal further held that Parliament was a far better body for determining the difficult policy issues in relation to assisted suicide in view of the conflicting, and highly contested, views within society on the ethical and moral issues and the risks and potential consequences of a change in the law.
Conclusion
Despite the efforts of campaigners such as Noel Conway, the law on assisted dying remains little changed and it continues to be unlawful. The courts do recognise that although the Suicide Act 1961, section 2 does interfere with a person's right to a private life under Article 8 of the ECHR, it does not violate that right as the law is necessary in a democratic society to protect the vulnerable, promote the sanctity of life and the trust between nurse and patient.
In his final statement, Noel Conway confirmed that he had chosen to have his ventilator removed knowing that without its support he would die. This was the only lawful option open to him.
KEY POINTS
- Noel Conway, one of several people who have campaigned for a change in the law to allow assisted dying, has died of motor neurone disease
- The right of an individual to decide how and when to end their life was an aspect of the right to respect for private life protected by Article 8 of the European Convention on Human Rights
- However, section 2 of the Suicide Act 1961 interferes with that right
- The Court of Appeal held that such interference was necessary in a democratic society for the purposes of the protection of health and morals and the protection of the rights of others