A case for the provision of assisted dying in prisons founded on the right to self-determination: Creating equivalence between prisoners and non-prisoners?

Abstract

This article makes the case for the provision of access to assisted death in prisons, founded on the right to self-determination under Article 8(1) ECHR, in order to create equivalence between prisoners and non-prisoners. It considers possible State justifications for interferences with the right under Article 8(2) and whether they would meet the Convention standards of legality and proportionality. In relation to proportionality, it is argued that the foundational basis for restrictions on assisted dying imposed on both the general and prison populations derives from the concept of human dignity, a concept which is also fundamental to prisoners’ rights. Under the banner of proportionality, from an initial presumption of equivalence of access to assisted dying, the article identifies certain conditions inherent in the prison situation that inevitably oppose human dignity and which provide a plausible basis for divergence. Ultimately, it is concluded that an absolute bar on provision of access to assisted dying in prisons cannot be justified, but that the factors that undermine dignity in prison could justify a degree of divergence from creation of equivalence between the prison and the non-prison populations in terms of such access.

Introduction

Prison suicide ¹ is an internationally recognized problem. ² There are now over 10 million people in prison globally, ³ and suicide is often the single most common cause of death in correctional settings. ⁴ England & Wales has registered record numbers of prisoner ⁵ suicides in recent years. ⁶ National prisoner suicide rates are consistently several times higher than in the general population. ⁷ This phenomenon is often associated with mental health issues, ⁸ but also with factors such as poor prison conditions, ⁹ hopelessness and helplessness linked to long-term imprisonment ¹⁰ (especially for those on long-term or life sentences), ¹¹ poor healthcare, ¹² lack of meaningful activity and social support, ¹³ and an increasing number of prisoners who are terminally ill. ¹⁴ Importantly, many of these factors, or analogous factors, ¹⁵ are also cited by non-prisoner users of assisted dying regimes. The emergence of claims by prisoners to access assisted dying services has contributed to significant opposition to reforms to allow the introduction of such services: opponents of assisted dying have argued that the first duty of the state should be to alleviate such conditions, and that safeguards would be insufficient to exclude those whose determination to die is a symptom of mental illness. ¹⁶

Despite such arguments, reform to secure the right to self-determination by legalizing ‘assisted dying’ ¹⁷ has gained pace in recent years in America, ¹⁸ Australia, ¹⁹ New Zealand, ²⁰ Europe, ²¹ and Canada. ²² The reasons are multifarious, but a dominant theme among successful reform campaigns has been to secure not only personal autonomy but also human dignity, ²³ which is also a fundamental goal of prisoners’ rights. ²⁴ To ensure compliance with international treaties on prisoners’ rights, some of these jurisdictions ²⁵ have therefore extended assisted dying to prison populations on the basis of the need to secure equivalence of access to healthcare, ²⁶ albeit subject to practical constraints and, in some cases, on a more limited basis than for the general population. ²⁷

However, litigation concerning the right to self-determination for prisoners is not exclusively associated with the development of assisted dying laws: it has been raised in relation to death row prisoners who have sought to forego appeal processes ²⁸ and in relation to the right to refuse vital medical treatment or sustenance. ²⁹ This article will, however, break new ground in arguing that the right to self-determination requires assisted dying services to be extended to prisoners, thereby ensuring greater, albeit not complete, equivalence between prisoners and non-prisoners in this context. In the course of defending the creation of such equivalence, it seeks to shed new light on familiar objections to such extension while accepting that the inevitable constraints created by the fact of imprisonment provide a basis for some curtailment of the provision of access to assisted dying to prisoners. The discussion of divergence from equivalence will raise and critique diverse theoretical issues related to imprisonment, such as the limits of punishment, and the protection and rehabilitation of prisoners. In espousing equivalence, the article argues that access to assisted dying should be one of the options available to prisoners alongside the availability of other options, such as obtaining access to palliative care or psychiatric treatment.

This piece thus contributes to an extensive literature on prison suicide, ³⁰ including rights-based examinations of the exercise of the right to self-determination in prison in the context of hunger-strikes, ³¹ withdrawal of treatment, ³² and the death penalty. ³³ It offers an original perspective on the academic debate as to whether the right requires countries to extend access to assisted dying schemes to members of the population commonly excluded from them. ³⁴ We build on the emerging, speculative analysis of prisoner access to assisted dying within legal and criminological disciplines, which emphasizes equivalence of access, ³⁵ and nascent practical consideration of this issue in relation to nations that have extended access or are contemplating doing so. ³⁶ Our contribution is therefore to provide a rights-based critique, relying on the European Convention on Human Rights (ECHR), that focuses on specific claims and will address both the nature of the right to self-determination under Article 8(1) ECHR and the legality and proportionality of restrictions upon access to assisted dying in the prison context.

This article begins first by examining the right to self-determination under Article 8(1) ECHR as relevant to assisted dying in prison, followed by consideration of possible state justifications for interferences with the right under Article 8(2) and whether they would meet the Convention standards of legality and proportionality. It proceeds, second, to examine the Belgian and Swiss assisted dying regimes and the English position of prohibition combined with tolerance of travel to access assisted dying abroad in light of three controversial claims made by prisoners in those countries to end their lives; third, it considers their adherence to legality and, fourth, to proportionality. In relation to proportionality, we argue that the foundational basis for restrictions on assisted dying imposed on both the general and prison populations derives from the concept of human dignity, a concept which is also fundamental to prisoners’ rights. Under the banner of proportionality, from an initial presumption of equivalence of access to assisted dying, we find that certain conditions inherent in the prison situation inevitably oppose human dignity and therefore create a plausible basis for divergence. Ultimately, we conclude that an absolute bar on provision of access to assisted dying in prisons cannot be justified, but that the factors that undermine dignity in prison could justify a degree of divergence from a situation of equivalence between prison and non-prison populations in terms of such access.

A prisoner’s right to self-determination under the ECHR

Article 8(1) right to self-determination

No credible theory of punishment now suggests that prisoners generally forfeit fundamental rights to life or wellbeing, ³⁷ and since prisoners are unable to secure their own wellbeing without state assistance, states thus come under a duty to secure the wellbeing of prisoners. ³⁸ European Court of Human Rights (ECtHR) jurisprudence on prisoners’ rights, reflecting standards set by the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment (CPT) ³⁹ and Article 3 of the Convention on Human Rights and Biomedicine (Oviedo Convention), ⁴⁰ finds that the health and wellbeing of detainees must be ‘adequately ensured by providing them with the requisite medical assistance’. ⁴¹ ‘Adequate provision’ may diverge to an extent from the standard of healthcare provision available to the general population, but, implementing principle 11 of the European Social Charter, ⁴² such divergence must be justified, ⁴³ and account must be taken of the particular healthcare needs of the prison population. ⁴⁴ Thus, the principle of equivalence is fundamental to the interpretation of states’ duties to uphold prisoners’ ECtHR rights relevant to their life and wellbeing.

State duties to ensure prisoner wellbeing include respect for the right of the prisoner to control over his or her life and wellbeing, for example, through consent to medical intervention; ⁴⁵ such control is based on respect for physical and psychological integrity and the fundamental value of ‘personal autonomy’. ⁴⁶ The concept of ‘personal autonomy’ is central to medical ethics and human rights, although its content is contested. ⁴⁷ We adopt Beauchamp and Childress’s definition of personal autonomy as self-determination – as the norm that each individual is entitled to make fundamental choices about his or her goals, plans, desires, and ends. ⁴⁸ The ECtHR refers to the right to ‘personal autonomy’ and to ‘self-determination’ in this sense. ⁴⁹ While self-determination does not generally emerge as a specific right, but rather as a principle that is part of the interpretive framework of ECHR rights, ⁵⁰ the ECtHR has recognized that certain decisions fundamental to an individual’s life should receive direct protection under Article 8(1). ⁵¹ Thus, the ECtHR has recognized a right to self-determination that encompasses the decision as to when and how to die. ⁵²

It might seem counterintuitive to refer to the value of self-determination in prison, within which prisoners’ individual spheres of action are necessarily constrained. But the right to self-determination has been found to be engaged directly in limited circumstances in the prison context, ⁵³ and the principle of self-determination has been found to be relevant to the interpretation of ECHR rights in the context of a prisoner’s decision to end their life. ⁵⁴ In Keenan v UK, ⁵⁵ it was claimed, on behalf of a mentally ill prisoner who had taken his own life, that the UK government had failed in its responsibility to protect the life and wellbeing of the prisoner, contrary to its obligations under Articles 2 and 3, respectively. Under Article 2, it was argued that the prisoner’s suicidal behaviour should have been recognized by the prison and action taken to prevent his suicide. ⁵⁶ The Court held that there had been no violation of Article 2 of the Convention due to the failure to prevent the suicide since the response of the prison authorities had been reasonable. This was in part because the ECtHR accepted the government’s argument that principles of ‘dignity and autonomy’ prohibit oppressive removal of a person’s freedom of choice under Article 8. ⁵⁷

However, the ECtHR has, in certain cases concerning hunger-strikes, appeared to indicate that prisoners cannot rely on Article 8(1), if their decisions would lead to their death or to severe harm to themselves. ⁵⁸ In Nevmerzhitsky v Ukraine, the applicant, who was on hunger-strike, was subjected to force-feeding, which he claimed had caused him significant mental and physical suffering amounting to inhuman and degrading treatment, contrary to Article 3. ⁵⁹ He complained, in particular, about the manner in which it was carried out, which, he alleged, included being handcuffed to a heating facility in the presence of guards and held down while being forced to swallow a rubber feeding tube. ⁶⁰ The Court found that force-feeding was not in itself a measure that was contrary to Article 3 on the basis that ‘[a] measure which is of therapeutic necessity from the point of view of established principles of medicine cannot in principle be regarded as inhuman and degrading. [. . .]’ ⁶¹ provided it was ‘. . . aimed at saving the life of a particular detainee who consciously refuses to take food’. ⁶²

In Nevmerzhitsky, the ECtHR’s acceptance that medically necessary force-feeding could not amount to inhuman and degrading treatment enabled it to respect the balance struck by Ukraine and various other ECHR states, by which the duty to preserve the life and wellbeing of prisoners on hunger-strike is placed above respect for the principle of self-determination, but the finding does not suggest that the principle must give way as a matter of interpretation of the ECHR in general. Reading the Convention as a whole, in light of the ECtHR’s acceptance that, other than liberty-rights, prisoners’ enjoyment of ECHR rights is equivalent to that of non-prisoners, ⁶³ there is a basis for finding that a prisoner’s decision as to the manner and timing of death could be framed as a prima facie interference with Article 8(1). Such an interpretation is consistent with the ECtHR’s findings in other contexts that compulsory treatment of capacitous patients violates Article 8(1). ⁶⁴

Article 8(2) standards of legality and proportionality

The ECtHR has confirmed that where the right to self-determination is engaged, a state must provide a justification for the restriction of the interest under Article 8(2). ⁶⁵ As is well established, such a justification will only be successful if the state satisfies various duties, which can be divided into two distinct standards: legality and ‘proportionality’, ⁶⁶ which will be considered in turn.

Legality

In Gross v Switzerland, the applicant wished to end her life using sodium pentobarbital, which could be legally prescribed for that purpose, subject to certain conditions, ⁶⁷ including that medical practitioners acted within the rules of medical practice and had regard to medical ethics guidelines. On this basis, prescriptions were only exceptionally to be offered to patients, such as the applicant, who did not suffer from a terminal illness, and doctors had so far refused to issue her a prescription. The court emphasized that to meet the standard for legality demanded by the requirement that an interference with the right to respect for private life must be ‘in accordance with the law’ under Article 8(2), state laws regulating the exercise of the Article 8(1) right to self-determination must clearly state whether others are authorized to assist in a suicide, such as by issuing a medical prescription, and if that would only be authorized under certain circumstances, they should be defined. ⁶⁸

The Court considered the relevant medical guidelines in Switzerland and found that they lacked the ‘formal quality of law’, ⁶⁹ and that there were no ‘principles or standards’ to serve as guidelines for the issuing of a prescription of sodium pentobarbital in the particular situation of the applicant, who did not suffer from a terminal illness. In finding a breach of Article 8, the Court considered that the lack of guidelines could create a ‘chilling effect on doctors who would otherwise be inclined to provide someone such as the applicant with the requested medical prescription’, ⁷⁰ and as a result, the applicant had experienced ‘anguish and uncertainty . . . regarding the extent of her right to end her life’. ⁷¹ Gross was appealed by Switzerland to the Grand Chamber where no breach of Article 8(1) was found on the facts, since the applicant had received the requested prescription, but the first instance Court’s findings as to the requirements of Article 8(2) in relation to legality remain significant. ⁷²

There has not yet been any judgement of the ECtHR concerning prisoner-assisted dying, but the exercise of the right to self-determination by a prisoner was considered in the case of Munjaz v UK. In Munjaz, the right to self-determination under Article 8(1) was found to be engaged because the applicant, a mentally disordered prisoner, had been subjected to periods of solitary confinement. ⁷³ The imposition of solitary confinement was not directly authorized by the Mental Health Act 1983, but rather was pursuant to the psychiatric hospital’s ‘seclusion policy’ as well as a national Code of Practice, issued by the Secretary of State for Health under the Mental Health Act, which included a section on the seclusion of psychiatric patients. ⁷⁴ The applicant claimed that the law and guidelines governing the imposition of solitary confinement in the psychiatric hospital failed to meet the requirements of legality. ⁷⁵ He submitted that ‘there was a greater need for precision when considering the law governing the circumstances of detained psychiatric patients because such persons were frequently at the mercy of the medical authorities’, and that further safeguards were needed to prevent ‘arbitrary or mistaken interferences with Convention rights’. ⁷⁶

The ECtHR first found that the policy was not required to have the status of law ⁷⁷ and went on to consider whether the hospital’s policy on seclusion met the requirements of the ‘quality of law’ aspect of the test of legality. ⁷⁸ The Court found that the policy was accessible since it was published by the hospital and went on to apply the test of foreseeability to the discretion conferred on the hospital to depart from the national Code of Practice. ⁷⁹ It determined that there needed to be sufficient clarity as to the scope and manner of exercise of the discretion to protect against arbitrary interference with the applicant’s Article 8(1) right. ⁸⁰ The appropriate degree of clarity turned on the specific circumstances of the case: the fact that the applicant was a particularly vulnerable detainee, given his mental illness, favoured a high degree of clarity, but that had to be balanced against the need for appropriate deference to the judgements of mental health practitioners as to the correct treatment, as well as to the protection of the rights of other detainees. ⁸¹ Ultimately, the ECtHR found no breach of Article 8(1) on the basis that the standard of legality was met.

Therefore, applying Munjaz and Gross, guidelines governing a prisoner’s access to assisted dying services should be accessible, possess the ‘formal quality of law’, ⁸² and set out ‘principles or standards’ that govern how decisions about access are exercised, bearing in mind the vulnerable status of prisoners who are contemplating suicide. Support for this view is provided by persuasive international treaties on healthcare, bioethics, and human rights, in particular the Convention on Human Rights and Biomedicine, ⁸³ which narrowly limit the circumstances in which compulsory treatment in prison is permissible to situations in which the patient’s capacity to weigh and understand the information relevant to the decision is compromised, as in emergencies or where the decision is a symptom of mental illness. ⁸⁴ These Treaties require close scrutiny of the quality of law or guidelines authorizing compulsory treatment in such situations. ⁸⁵ The principle of legality is, however, compatible with a degree of discretion necessary to allow an official to strike a balance between self-determination and countervailing considerations in a particular case.

Legitimate aim, necessity, proportionality

The ECtHR in Pretty accepted that the legal prohibition on assisted suicide in the United Kingdom had the ‘legitimate’ aim of safeguarding life. ⁸⁶ More specifically, the aim of the prohibition was considered to be the protection of the ‘weak and vulnerable’ and ‘especially those who are not in a condition to take informed decisions’ against acts intended to end life or to assist in ending life. ⁸⁷ The primary issue for the ECtHR was whether the prohibition was ‘necessary in a democratic society’: whether it corresponded to a ‘pressing social need’ and was proportionate to the aim pursued. ⁸⁸ The ECtHR accepted the UK government’s argument that its role in overseeing necessity and proportionality would be limited due to the concession of a wide margin of appreciation to the United Kingdom, rejecting the applicant’s suggestion that the importance of her right justified particularly close oversight. ⁸⁹

The duty to protect the lives of vulnerable individuals contemplating suicide is also found in Article 2 ⁹⁰ and comparable international human rights instruments. ⁹¹ This duty has been expanded upon in the cases of Haas v Switzerland and Lambert v France. In Haas, it was found that it was appropriate, in the context of examining a possible violation of the right to self-determination under Article 8(1), to refer to Article 2 of the Convention. ⁹² In Lambert, it was found that reference should also be made, in examining possible violations of the duty to protect life, under Article 2, to the right to self-determination under Article 8(1). ⁹³ The duty to protect vulnerable suicidal prisoners, considered in Keenan v UK, is set out in similar terms: ‘persons in custody are in a vulnerable position and . . . the authorities are under a duty to protect them,’ ⁹⁴ but the ECtHR accepts that where a prisoner takes their own life, preventive measures should comprise ‘general measures and precautions . . . to diminish the opportunities for self-harm, without infringing personal autonomy’. ⁹⁵ The ECtHR’s approach in Keenan, interpreted consistently with the finding in Lambert, would therefore suggest that the duty to protect vulnerable suicidal prisoners does not have presumptive priority over respect for prisoner autonomy.

However, in Nevmerzhitsky and Pretty, the ECtHR emphasized that it is for the signatory State to determine the balance to be struck between the duties to protect the lives of vulnerable populations and to respect the right to self-determination, and therefore blanket measures of suicide (or assisted suicide) prevention that are not ‘oppressively’ administered will not violate Article 8(1). This deferential stance has been adopted in other contexts even where there is a decisive ‘European consensus’ in favour of limiting the duty to protect life in favour of personal autonomy. ⁹⁶

It should be noted that protection of the rights of others is not the only aim served by suicide prevention measures relevant to Article 8(2). The ‘protection of the health’ of vulnerable prisoners or, potentially, the ‘prevention of crime’ could also be relevant. For example, the latter has been discussed by the ECtHR in relation to the subjection of prisoners to compulsory medical intervention. ⁹⁷ The ECtHR has also found that taking a breath test or a blood sample from a prisoner was a justified interference with Article 8(1) if done in order to prevent criminal offences. ⁹⁸ The ‘protection of morals’ has also occasionally been accepted as a legitimate aim in relation to measures that restrict self-determination in order to protect life, on the basis that such measures affirm a society’s moral belief in the sanctity of life. ⁹⁹ However, such aims have had limited practical significance in ECtHR jurisprudence in light of its deferential approach to the balance between the right to life and the right to self-determination.

Therefore, in contrast to the stance of certain European national courts, ¹⁰⁰ the ECtHR accepts that the state may prohibit access to assisted dying services in order to protect the lives of vulnerable populations, such as prisoners. Only regimes that permit assisted dying for the general population to an extent, as is increasingly the case in Europe, could be found to breach the right to self-determination under Article 8(1) due to restricting access. ¹⁰¹ Three such regimes are considered below.

Prisoners and assisted dying in Europe: three claims

The emerging acceptance of euthanasia and assisted suicide in Europe has resulted in certain claims by prisoners to end their lives, some of which, as discussed below, have been considered by national courts. Two cases in Belgium and Switzerland which permit assisted dying and a further case in England & Wales in which assistance to travel for assisted dying abroad is tolerated for the general population are used to illustrate the legal issues that arise when prisoners seek the right to self-determination. The compatibility of the restrictions on such access in these regimes with Article 8(2), based on the discussion above, will then be considered in the subsequent sections.

Claims in jurisdictions that allow assisted suicide or euthanasia

Switzerland and assisted suicide: the claim of Peter Vogt

The Swiss approach to assisted suicide by lethal medication ¹⁰² has been characterized as a liberal one. ¹⁰³ Article 115 of the criminal code provides that assisting suicide for ‘altruistic reasons’, and without encouragement, is not an offence; ¹⁰⁴ of particular relevance is the prescription of narcotics used in assisted suicide by doctors, which is governed by a legal requirement that they act within the rules of medical practice ¹⁰⁵ or risk prosecution. ¹⁰⁶ The Swiss Federal Council has not achieved the necessary agreement to impose a common interpretation of medical practice with specific substantive restrictions on the prescription of lethal medication by doctors, ¹⁰⁷ but, while emphasizing that the matter is centrally one of the doctor’s conscience, current medical guidelines favour unbearable suffering as a criterion for access to assisted suicide. ¹⁰⁸ The Federal Supreme Court has clarified the criteria: a thorough examination is required, the request must be based on a medical condition, there must be monitoring over a period by a medical specialist, and regard must be had ‘to the genuineness of the wish to die and capacity for discernment’. ¹⁰⁹

Following a request in 2018 by Peter Vogt, a prisoner serving a life sentence, Switzerland’s cantons, which have responsibility for offender management, parole, and prison sentences, agreed ‘on the principle that assisted suicide should be possible inside prisons.’ ¹¹⁰ The agreement was pursuant to recommendations by the Swiss Centre of Expertise in Prison and Probation (SCEPP). ¹¹¹ However, it was found that assisted suicide rights should apply to prisoners under stricter conditions than those that prevail in the general community. An initial proposal submitted to SCEPP ¹¹² suggested that assisted suicide should be restricted to prisoners who are terminally ill and cannot be released. ¹¹³ Subsequently, SCEPP drafted guidelines that would permit assisted suicide on grounds analogous to those existing in the Benelux countries: unbearable suffering due to somatic or psychiatric illnesses. ¹¹⁴ After a consultation, aspects of the guidelines met with approval, such as the requirement that two independent specialists be consulted in cases of mental illness ¹¹⁵ and that prison authorities must ‘ensure the suicide request is not the result of a short-term emotional crisis’. ¹¹⁶ However, there was opposition to the breadth of the proposals from a number of Cantons, ¹¹⁷ leading to a further review whose results were expected in November 2020, but which have been delayed due to the pandemic. Thus, the Vogt claim remains unresolved at present.

Belgium and ‘euthanasia’: the claim of Frank Van den Bleeken

Belgian law permits ‘euthanasia’, which is defined as ‘intentionally terminating life by someone other than the person concerned, at the latter’s request’. ¹¹⁸ The law is directed at physicians, so a physician who performs ‘euthanasia’ does not commit a criminal offence, provided they ensure that various conditions are met. Most significantly, the physician must be satisfied that ‘the patient is in a medically futile condition of constant and unbearable physical or mental suffering that cannot be alleviated, resulting from a serious and incurable disorder caused by illness or accident’ ¹¹⁹ and that ‘there is no reasonable alternative’. ¹²⁰ The law also requires the physician to be satisfied that the ‘request is voluntary, well-considered, repeated and not the result of external pressure’ ¹²¹ and made by an individual who has the capacity to understand and weigh the factors involved in making the decision. ¹²² Detailed procedural requirements that are directed at confirming these conditions must also be met: discussion of alternative treatments or palliative care; having several conversations with the patient spread out over a reasonable period of time; accounting for the progress of the patient’s condition in consultation with another physician; and establishing that the patient has had the opportunity to discuss his or her request with persons he or she chooses. ¹²³ Further procedural conditions must be satisfied if a patient is not terminal, such as consultation of an additional physician, and there is a requirement that there must be a period of at least a month between the patient’s written request and the act of euthanasia. ¹²⁴

The issue of the lawfulness of euthanasia for prisoners was raised in 2014 following a request by a prisoner, Frank Van den Bleeken (VDB), who had been tried for committing multiple rapes and a murder and was detained on a correctional psychiatric basis (‘insanity’). ¹²⁵ VDB initiated the request for euthanasia under Belgian law on the basis of unbearable psychological suffering due in part to his mental illness, which included an obsession with deviant sexual fantasies. ¹²⁶ In accordance with the Euthanasia Act, two psychiatrists were asked to advise as to whether he met the requirements for euthanasia. It was determined that he did, and an independent medical expert was therefore sought to confirm that finding; this expert found that an alternative treatment was available – a specialist secure psychiatric palliative care unit in the Netherlands. ¹²⁷ The alternative treatment was considered by VDB, but the transfer was deemed administratively unworkable; in the interim, VDB sought a judicial determination as to whether it would be lawful to administer euthanasia in his situation; it was found that it was, and the finding was upheld on appeal. ¹²⁸ Subsequently, a different independent medical expert was found who was prepared to agree to euthanasia ¹²⁹ and an agreement was reached with the Belgian Justice Minister to transfer VDB to a hospital for that purpose. Just six days prior to the agreed date, the independent medical expert withdrew his support, and the feasibility of the transfer to the Dutch care unit was re-evaluated. While VDB’s claim did not proceed, the clarification of the legal situation that VDB’s claim prompted has subsequently meant that Belgium has recorded a number of euthanasia requests from prisoners, some of which have been approved. ¹³⁰ Thus, Belgium has now achieved equivalence of access to assisted dying between the prison and non-prison population.

The claim of Re W and the English prohibition of euthanasia and assisted suicide

Unlike the permissive jurisdictions discussed above, England & Wales prohibited suicide as a criminal offence under common law until the abolition of the offence by s1 Suicide Act 1961, after which accessory liability (‘abetting’ suicide) was retained in statutory form (s2 Suicide Act 1961). ¹³¹ In common with Switzerland and Germany, but in contrast to the Benelux countries, England & Wales has not recognized a ‘euthanasia’ exception to the law of murder. ¹³² The consent of the Director of Public Prosecutions (DPP) is required to bring a prosecution for assisted suicide, ¹³³ and the DPP has issued Guidelines that discourage prosecution of compassionate and open assistance where the victim has the capacity to weigh and understand the significance of the decision, and where the decision has an informed and voluntary character. However, no assurance of non-prosecution can be issued. ¹³⁴ There is significant parliamentary support for reform to allow lawful assisted dying in the United Kingdom, both in Westminster and in regional legislative assemblies; ¹³⁵ the recent decision by the British Medical Association to adopt a neutral stance on reform to allow physician-assisted dying is likely to strengthen the case for legislative reform. ¹³⁶

No prosecution has been successfully brought against an individual for aiding or organizing a suicide in the Dignitas clinic in Switzerland. The latest figures from Dignitas record that 457 individuals from Great Britain ended their lives at the clinic between 1998 and 2019. ¹³⁷ The civil courts in England & Wales have so far declined to authorize or mandate interference with such suicides, ¹³⁸ and the UK Government has recently recognized that travelling for assisted suicide abroad is acceptable under Covid-19 regulations, which permit only ‘essential’ travel. ¹³⁹ While suspected assistance that has been reported to the police is investigated, ¹⁴⁰ and police operations can disrupt assistance, the Association of Chief of Police Officers advises police to adopt a multi-agency approach under the relevant Local Authority safeguarding vulnerable adults policy, with an emphasis on determining the ‘victim’s’ capacity and the informed and voluntary nature of the decision, rather than on disruption of the assistance. ¹⁴¹ That position in England & Wales may be characterized as the acceptance of ‘death tourism’. ¹⁴²

Despite English prosecutorial tolerance of such ‘death tourism’, there are no instances in which a prisoner in England & Wales in a situation analogous to that of VDB or Peter Vogt has been permitted to arrange access to assisted dying services abroad. However, the right to self-determination, including the decision to die, finds some protection in the limited circumstance of refusal of vital treatment or sustenance, and prisoners who have sought to end their lives in this way have been found to be entitled to do so. ¹⁴³ As is well established, such refusals require an assessment of the capacity of the patient to weigh up the factors contributing to the decision to die, and if the patient is found to lack capacity, then life-preserving treatment can be administered without consent. ¹⁴⁴ This position is cognate with the common requirement found in assisted dying regimes to the effect that a determination of the capacity of the individual to request assisted dying is needed before lethal medication may be administered. Therefore, parallels can be drawn between acceptance of a suicidal refusal of treatment by a prisoner and allowing access to assisted dying in prisons, given that both answer to the demand for respect for dignity under Article 8(1). Such parallels mean that consideration of such a refusal is illustrative of a potential legal response to a prisoner’s determination to die due to his or her medical condition which may be exacerbated due to prison conditions. It may therefore shed light on a potential future scheme enabling prisoners to access assisted dying in England & Wales.

The case of Re W provides a particularly stark example of a suicidal refusal of vital treatment in prison. It concerned Glenn Wright, a notorious prisoner suffering from mental illness who requested treatment in a secure psychiatric hospital, rather than in a standard prison. ¹⁴⁵ When the prison authorities would not comply, he sought to bring about his death by inserting infectious material into a wound he had opened in his leg and refusing treatment over a period of five months. It was determined that he had capacity to refuse treatment and therefore that there was no lawful basis upon which to treat him. ¹⁴⁶ If Glenn Wright had, however, sought permission to arrange for his suicide in Dignitas under the English position of acceptance of ‘death tourism’, ¹⁴⁷ for example, by requesting a meeting with members of the organization, the request would have been refused, on the basis that such assistance would be unlawful. Thus, the failure of the United Kingdom to adhere to the principle of creation of equivalence of access to assisted dying services between the prison and non-prison populations has resulted in an anomalous tolerance in English law for inhumane forms of suicide as in Re W ¹⁴⁸ alongside a prohibition of dignified suicide by access to assisted dying services.

Compliance of the Swiss and Belgian regimes with the right to self-determination: legality

The law and policies governing prisoner access to assisted dying in Switzerland and Belgium must meet the standards of legality, but the legal prohibition of assisted dying in England & Wales means that such standards are inapplicable. ¹⁴⁹ However, the inconsistencies in the English position could give rise to a breach of the substantive right to self-determination under Article 8(1) considered in the next section. The Swiss and Belgian assisted dying regimes have historically been criticized in terms of standards of legality due to their flexibility, ¹⁵⁰ which contrasts with the detailed and rigid safeguards that characterize modern assisted dying regimes. ¹⁵¹

In Switzerland, legislative paralysis has resulted in a regime regulated disparately by canton criminal prosecutors and assisted dying organizations rather than by a comprehensive framework led by the legislative body, the Federal Assembly. ¹⁵² Its deficiencies in terms of legality have already been found to breach Article 8(1). The issue raised in Gross v Switzerland, discussed above, was ultimately resolved by acquiescing to the applicant’s request, ¹⁵³ but the cantons have not yet accepted such a permissive approach to prison assisted suicide, due to concerns raised by penal organizations that the lives of vulnerable prisoners may thereby be endangered. ¹⁵⁴ On that basis, an expert reviewer considering assisted suicide in Swiss prisons has accepted as ‘obvious’ that Switzerland does not satisfy the Article 8(2) test of legality, and Peter Vogt’s case similarly demonstrates that the availability of prisoner-assisted suicide in Switzerland is not yet governed by clear or accessible law or guidelines that identify when access is permitted. ¹⁵⁵

In Belgium, by contrast, the relatively recent amendment to the euthanasia law ¹⁵⁶ has meant that the law governing the practice of ‘euthanasia’ has become much more rigorous, a reform that has drawn upon lessons from over two decades of legal assisted dying in the Benelux countries. ¹⁵⁷ But despite the comprehensive legislative scheme, the ability to circumvent its protections in some circumstances has given rise to procedural challenges. ¹⁵⁸ Nevertheless, the Belgian response to VDB’s claim, while intensely controversial, ¹⁵⁹ demonstrates that the regime makes no distinction between prisoners and the general population.

Overall, the Belgian approach, by creating equivalence of access to assisted dying between prisoners and non-prisoners, creates greater procedural fairness than does the Swiss scheme and is less likely to give rise to a breach of Article 8(1). It is also more clearly in conformity with international law on the rights of prisoners which requires that there be no significant difference between prisoners and the general population in relation to access to healthcare services. ¹⁶⁰ Switzerland’s stance, in contrast, is not one of equivalence because in relation to prisoners it fails to meet the standard of legality; to remedy this, clear guidelines would need to be created to govern prisoner access to assisted dying, which set out the basis of any restrictions applicable to prisoners that go beyond those applicable to the general population. ¹⁶¹

The balance between self-determination and prevention of prison suicide: proportionality

We contend that provision of access to an assisted dying scheme in prison contributes to enabling a dignified exercise of the right to self-determination for prisoners, but it is not our contention that there can never be a pressing social need to restrict assisted suicide in prisons. The claims in Re W and of Peter Vogt and VDB raise important questions about state duties, recognized under Article 2 ECHR, to prevent prison suicide. ¹⁶² However, restrictions upon access to assisted dying cannot merely be assumed to be justified on the basis of the protection of vulnerable lives If a model of divergence is adopted, as is contemplated in Switzerland, and as has come to exist under the prosecutorial tolerance in England & Wales, it requires governments to demonstrate that restrictions affecting prisoners satisfy the ‘necessary in a democratic society’ test under Article 8(2).

As discussed above, the ECtHR in Pretty v UK failed to provide clear criteria to assess the proportionality of restrictions on assisted suicide: the blanket prohibition in England & Wales was accepted to have the potential to protect terminally ill individuals whose desire to die was a symptom of ‘vulnerability’, but the ECtHR went no further than that; it determined that it was for the state to assess the risk, ¹⁶³ and that compelling reasons were not required to justify interference with this intimate aspect of private life. ¹⁶⁴ A future challenge from a prisoner brought on the basis of a claim similar to those in the three claims considered above would, however, give rise to an issue distinct from the one considered in Pretty: in a state that already operates an assisted dying regime and manages the risk to the vulnerable in the general population, does the risk to the prison population justify a blanket restriction on access to it by prisoners? In that situation, if the Court were to abandon the deferential stance taken in Pretty, it would have to assess the bases for finding that equivalence should not be created in this context between prisoners and the general population. In order to do so, it would have to consider at least four distinct objections to the extension of assisted dying regimes to prisoners, put forward by various commentators, as discussed below.

First, and most significantly, it may be argued that prisoners’ suicidal ideation is not typically associated with informed and rational suicide. ¹⁶⁵ Second, it has been considered that prison conditions will inevitably form a significant part of a prisoner’s desire to end his or her life, ¹⁶⁶ and third, that suicide in prisons, unlike the general population, affects the rights of others by, for example, causing psychological trauma to other inmates and staff, ¹⁶⁷ which could outweigh the right of the prisoner to self-determination. Finally, some have criticized self-determination in the prison context because they consider the punitive basis of imprisonment to be incompatible with respect for prisoners’ decisions to end their lives. ¹⁶⁸ These points will be considered in turn and analysed to consider whether they could plausibly justify a blanket restriction upon prisoner access to assisted dying schemes.

Mental competence to decide to die in prison

Under the Strasbourg jurisprudence, contracting states have a duty under Article 2 ECHR to manage the risk of suicide associated with mental illness in prison, which includes implementing preventive measures if prison staff judge that there is an immediate risk of suicide. ¹⁶⁹ That duty was implicitly acknowledged in the finding in Keenan v UK, discussed above, to the effect that it was not sufficiently apparent to the authorities that the prisoner’s mental illness had created such a risk; clearly, the implication was that had it been apparent, preventive measures should have been put in place. Similarly, in Re W it was found that the decision to refuse vital treatment was not a symptom of the prisoner’s mental illness, but had it been he should have been forcibly treated. ¹⁷⁰ However, in the context of assisted dying generally, safeguards adopted by states typically go beyond merely excluding suicides caused by mental illness and demand clear evidence of capacity. ¹⁷¹

Globally, laws on assisted dying almost always place an emphasis on the need for restrictions designed to limit its availability to the ‘terminally ill’ and/or persons undergoing ‘unbearable suffering’, ¹⁷² but the relationship between such qualifying requirements and mental competency is disputed, ¹⁷³ and this issue has not so far been addressed by the ECtHR. ¹⁷⁴ Under certain utilitarian-consequentialist positions, such requirements are understood to be separable from the question of mental competency and are instead theorized to underpin objective criteria that measure the quality of an individual’s wellbeing in order to establish whether it is in their ‘best interests’ to die. ¹⁷⁵ From a natural law viewpoint, however, this view runs contrary to the fundamental Convention principle that all lives are equal in dignity and rights since it has been taken to imply that imposing such requirements reduces the moral status of the sufferer. ¹⁷⁶

We prefer the view that such qualifying requirements should be designed to ensure that those receiving assistance to end their lives view their medical condition subjectively as one that fundamentally undermines their ‘dignity’. ¹⁷⁷ Dignity is clearly a disputed concept, ¹⁷⁸ but in the context of the ECHR it can be specified: the fundamental notion of ‘human dignity’ in the preamble reflects the Kantian notion of dignity as capacity for autonomy. ¹⁷⁹ While ‘unbearable suffering’ and ‘terminal illness’ cannot destroy human dignity in the Kantian sense, a decision to end one’s life on the basis of such medical conditions would be a ‘dignified’ decision since they can reasonably be understood to compromise the body’s ability to support a dignified existence. ¹⁸⁰ For example, ‘unbearable suffering’ drastically interferes with the sufferer’s ability to experience life and is thus capable of destroying the freedom of thought that is the basis of autonomy, ¹⁸¹ while ‘terminal illness’ is associated with suffering, dependency on others, and lack of hope for the future. In contrast, a decision to die based on a condition that caused minor pain or from which a full recovery could be made could be viewed as ‘undignified’. ¹⁸² Therefore, restrictions on assisted dying services, confining them to the ‘terminally ill’ or those ‘suffering unbearably’, can be understood to serve the aim of protecting the vulnerable by excluding persons from the services whose decision to die appears to lack a dignified basis.

The ‘unbearable suffering’ requirement of laws in Europe allowing assisted dying ¹⁸³ supports our view that such qualifying requirements are designed to exclude ‘undignified’ decisions to die, since a condition of ‘unbearable suffering’ is readily conceptualized as a condition contrary to human dignity. ¹⁸⁴ Similar concerns are also apparent in national assisted dying laws that adopt a ‘terminal illness’ criterion, as is evident from the understanding of the schemes by end-users, ¹⁸⁵ the practitioners involved, ¹⁸⁶ and the general public. ¹⁸⁷

In relation to prison, as a coercive and compromised environment characterized by mental illness and impulsivity, ¹⁸⁸ we accept that the state has a clear duty to prevent undignified suicides through schemes of suicide prevention. ¹⁸⁹ Where a prisoner’s suicidal ideation is based on factors that are compatible with dignified suicide, however, suicide prevention is inappropriate. ¹⁹⁰ Therefore, the state can meet its duty in such cases by requiring evidence of sustained deliberation and capacity to weigh and understand the decision as well as conditions of ‘unbearable suffering’ or ‘terminal illness’. There would also be prison-specific factors that may be required, including consideration of alternative places of treatment or detention, as raised by the claims in VDB and Re W, as well as legal factors, such as the possibility of parole. ¹⁹¹

Prisoners would generally struggle to evidence the sustained deliberation required for dignified suicide, but not necessarily more so than users of assisted dying services in general. ¹⁹² The difficulty of achieving the competency necessary for dignified suicide is well illustrated by Diane Pretty, whose motor neurone disease was progressively destroying her quality of life with no realistic hope of recovery, a condition which would overwhelm the capacity of most people to weigh the decision to die with the requisite dignity. ¹⁹³ Nevertheless, she was found by the ECtHR to be able to do so. ¹⁹⁴ VDB, Peter Vogt, and Re W also demonstrated the ability to understand and weigh their decisions, and there is no suggestion that prisoners are inherently incompetent to take medical decisions that shorten life. ¹⁹⁵ Therefore, a prohibition on assisted dying that singled out prison populations would only be legitimate on grounds of mental competency if a specific feature of the prison environment could be identified that could frustrate competence for every prisoner indefinitely, but since no such feature is apparent, a blanket prohibition is indefensible. ¹⁹⁶

An example of an approach reflective of the above arguments is provided by the current proposals of the SCEPP. ¹⁹⁷ As discussed above, these proposals, if implemented, would limit prisoner access to assisted dying services to those prisoners who meet strict conditions, including – on one proposal – a requirement that the prisoner must suffer from a terminal illness, have refused palliative care, and be ineligible for release. ¹⁹⁸ Such restrictions demonstrably meet the legitimate aim of protection of vulnerable life since they help to secure prisoner competence to decide to die in prison. The SCEPP proposals reflect safeguards that are typically enacted by assisted dying regimes to prevent undignified suicides for the general population and thus respect the premise of equivalence of access. ¹⁹⁹

Deaths in prison due to psychiatric conditions as contrary to Articles 2 and 3 ECHR

It is well established in Council of Europe states that the state has a duty under both Articles 2 and 3 to account for deaths in custody that are the result of a failure to provide sufficient psychiatric, rehabilitative, or therapeutic support to a detainee who has as a result committed suicide. ²⁰⁰ This is especially relevant to Belgium, where failures to provide specialized mental health provision for prisoners have resulted in numerous findings of violations of those Articles. ²⁰¹ The full range of relevant duties under Articles 2 and 3 are too numerous to list here, but they include the possibility of release by providing psychotherapeutic programmes to manage the risk posed by the offender to the community. ²⁰² The significance of the state’s duty to provide conditions compatible with human dignity, including suitable psychiatric treatment and the possibility of rehabilitation, is illustrated by the three claimants discussed above: had such a viable alternative been available for Peter Vogt, then he would have considered his life to be bearable and would have withdrawn his decision, ²⁰³ while the claims of VDB and Re W were entirely premised on objections to the lack of appropriate treatment.

While this article is arguing in favour of providing assisted dying services to prisoners, we do not dispute that the State’s first duty in this context is to provide conditions of detention that prevent suicide by securing the dignity of those detained. ²⁰⁴ In agreement with Downie, Iftene, and Steeves, ²⁰⁵ we find that governments contemplating the extension of assisted dying services to the prison population must address issues of mental illness and provide therapeutic and rehabilitative alternatives in order to comply with Articles 2 and 3. The eventual response of Belgium to VDB’s case throws some light on the responsibilities of the state in cases of prisoner-assisted dying: arrangements for euthanasia were made as a last resort only once alternative treatments had been considered and the arrangements for euthanasia were cancelled as soon as a viable alternative (transfer to a Dutch psychiatric facility) became available. ²⁰⁶ In addition to such medical alternatives, the state should also consider eligibility for release or pardon or the possibility of transfer to a different, more suitable institution for prisoners with mental health conditions. ²⁰⁷ Only in the most exceptional situations, such as those of Peter Vogt or VDB who could not be released safely into the community, would assisted dying in prison be deemed appropriate if treatment options had been exhausted or were ineffective, and capacity was present. In other words, governments cannot deny the right to self-determination in relation to access to assisted dying if the unbearable conditions driving a prisoner’s decision persist. In agreement with Urwyler and Noll, an argument for such denial would deny the enjoyment of the right because it would leave the prisoner in a situation of suffering in which ‘systemic deficiencies of a penal system cannot address his problems’. ²⁰⁸ Therefore, the state’s duties to protect prisoners under Articles 2 and 3 are not sufficient to justify a blanket restriction on access to assisted dying services.

Interference with the interests of prison staff and other inmates

The potentially severe psychological impact of deaths in custody on the prison as an institution, comprising prison staff and other inmates, is well attested to, ²⁰⁹ and therefore, governments would be expected to take these interests into account in relation to the design of assisted dying schemes for prisoners. Clearly, if there is any possibility of arranging assisted dying outside the prison facility, that should occur, especially where so doing would not pose significant administrative difficulty, as demonstrated in the case of VDB who was transferred to a hospital to undergo euthanasia. It is an important aspect of the right to self-determination that a person has control over the manner of death, and location can be an extremely significant factor in the choice to use assisted dying services, particularly in relation to those wishing to die at home rather than in a hospital setting. ²¹⁰ Nevertheless, all states that permit assisted dying impose procedural hurdles that affect the manner of death, and a location requirement to protect others, for example from the psychological trauma of witnessing suicide, could readily be imposed without restricting access to assisted dying for prisoners in all circumstances. Thus, the protection of others is clearly insufficient to justify a blanket restriction on such access for prisoners.

Incompatibility between assisted dying and the purpose of punishment?

It is striking that in Belgium, Switzerland, and England & Wales, the prevention of ‘crime and disorder’ has not been found to provide a legitimate basis to restrict the right to self-determination in prison in relation to the decision to die, ²¹¹ in contrast to the position in certain common-law jurisdictions. ²¹² In those jurisdictions, such claims are sometimes denied on the basis that giving permission to refuse treatment would lead to disorder and undermine deterrence. ²¹³ Furthermore, retributivist ‘forfeiture’ approaches to prisoners’ rights are also sometimes relied on in support of such findings, on the basis that an offender forfeits those rights which his or her conduct has denied the victim. ²¹⁴ This position focuses on the impact of the offending on victims and their families. ²¹⁵ The potential relevance of forfeiture and victims’ rights approaches to assisted dying is illustrated by the victims’ families’ response to VDB’s claim for euthanasia: they were vocal opponents of granting euthanasia on the basis that his offending (murder-rape) had ended his victims’ lives in an undignified manner and therefore that he should be deemed to have forfeited his right to a dignified death. ²¹⁶

However, the principle of acceptance of equivalence of medical care between prisoners and the general population provides a decisive argument against such punitive approaches and argues in favour of extending the right to self-determination to prisoners for fundamental decisions concerning their health. ²¹⁷ This principle is confirmed by international treaties on prisoners’ rights ²¹⁸ and, as discussed above, by ECtHR jurisprudence. ²¹⁹ It is clear that while states are entitled to balance the protection of the life of prisoners with the right to self-determination, punitive concerns cannot justify a blanket denial of access to assisted dying in prison. ²²⁰

While it has been argued that none of the above objections would be sufficient to justify an absolute prohibition on prisoners accessing assisted dying services, that does not mean that the right to self-determination requires states to implement complete equivalence of access to assisted dying services between prisoners and non-prisoners.

Therefore, provided prisoners are not subject to a blanket prohibition on access to assisted dying services, prisoners may justifiably be required to access them on stricter terms than those applicable to the general population.

Conclusions

Having considered various objections to allowing access to assisted dying in prisons, it is concluded that if a state provides such access for the general population, then there is no legitimate basis for imposing a blanket exclusion on such access for prisoners. Even on the minimal standard of review applied to a legal position intended to obviate risk to vulnerable lives in Pretty, such a position would violate the right to self-determination under Article 8(1): it would fail to satisfy the demands of proportionality since the prohibition would not be found to be rationally connected to the legitimate aim. ²²¹ Therefore, in agreement with Downie, Iftene, and Steeves, assisted dying regimes should implement the principle of equivalence. ²²² It is beyond the scope of this article to consider the introduction of assisted dying schemes for the general population in states that are opposed to their introduction, although, clearly, the arguments put forward above as to self-determination would support their introduction. But in pursuit of the argument as to equivalence, this article now turns to consider provision of assisted dying in prisons in a jurisdiction which has in place no such scheme for the general population – England & Wales.

Compatibility of the English position with Article 8(1)?

In England & Wales, the prohibition on assisted suicide is ostensibly maintained to protect vulnerable lives, but the acceptance of what has been termed ‘death tourism’, ²²³ discussed above, does raise an apparent inconsistency in that prisoners, unlike the general population, are unable to travel abroad. ²²⁴ This position is unlikely to change due to a successful claim from a prisoner at Strasbourg: the Court does not appear to be receptive to arguments that this lack of equivalence could amount to a violation of Article 8(1), despite the fact that the current tolerance of ‘death tourism’ would appear to fatally undermine the state’s primary justification for the prohibition on assisted dying for prisoners – that the policy is genuinely designed to protect vulnerable life. ²²⁵ A powerful illustration of the ECtHR’s unprincipled position in this regard is provided by the case of ABC v Ireland, which concerned three applicants who were prevented by the Irish prohibition from receiving abortions domestically and so travelled to Britain to obtain abortions. The acceptance of such ‘abortion tourism’ was found to be compatible with Article 8(1), despite the fact that the domestic prohibition imposed disproportionate burdens on certain categories of women, such as those in poverty. ²²⁶ The reluctance of the ECtHR to capture the arbitrariness of such a situation as a violation of Article 8(1) has been the subject of sustained academic criticism ²²⁷ and could clearly be analogised to the situation of prisoners who cannot access ‘death tourism’.

The ECtHR has found that where a state permits assisted dying, its assessment of the necessity of measures intended to secure the protection of vulnerable life should be accorded deference, due to the emergent nature of such regimes and the lack of a ‘European consensus’. ²²⁸ Therefore, it is likely that, although England & Wales does not observe the principle of equivalence, that would be found to be justifiable at Strasbourg. However, that leaves the domestic legislature and the courts free to resolve this issue ‘for themselves’, ²²⁹ since it is reasonably clear that if a decision is to be made on this matter in future, it falls within the margin that the Court has decided to leave to the member states. So the decision-maker need not be constrained in its decision by the relevant jurisprudence discussed, although it might seek some guidance from such jurisprudence.

It follows that a hypothetical claim under Article 8(1) in the domestic courts challenging, for example, a prison official’s refusal to assist a prisoner to collect information on access to assisted dying services abroad and submit documents necessary to gain such access (e.g. during a weekend family release visit) ²³⁰ could plausibly lead to a finding of a violation. A similar claim was advanced successfully in Open Door and Dublin Well Woman v Ireland, in which the applicants argued that an injunction imposed by the Irish courts on the provision of information to pregnant women seeking abortion in Great Britain had created a breach of Article 8(1) ²³¹ and of Article 10(1) – the right to receive or impart information. ²³² The ECtHR found a violation of Article 10 on the basis that, while protection of the life of the unborn was a legitimate aim under Article 10(2), the fact that women were permitted to travel abroad for abortion in Great Britain undermined the government’s argument that the restriction upon information met a pressing social need. ²³³ That was because the information was generally available to the population from other sources and the services were lawful in other ECHR signatory States. Although the decision did not expressly reference the need to create equivalence of access to abortion services as between women in poverty and women with private resources, it was consistent with acceptance of that need and with the general principle that states must guarantee effective enjoyment of the Convention guarantees.

By analogy, therefore, a violation of the right to self-determination under Article 8(1) or of the right to receive information under Article 10(1) could be found where a prisoner had been denied information on assisted dying services. ²³⁴ Such interference would have to be justified under Article 8(2) or 10(2) by demonstrating a link between the refusal and the legitimate aims discussed above, particularly the protection of vulnerable life. That could, for example, require the government to show that its policy was intended to prevent prisoners accessing assisted dying services that lacked capacity. Given the discussion of that objection – among others – to allowing such access, above, it would be likely that the court would not accept that justification. Thus, it may plausibly be argued that the English regime which excludes prisoners in absolute terms currently violates the right to self-determination of prisoners, just as an absolute bar on prisoner access to assisted dying services would be likely to do in an assisted dying regime.

Conclusion

It has been argued that the principle of equivalence of access to assisted dying services founded on the right to self-determination as between the general population and prisoners cannot accept a bar on such access for prisoners justified by particular state responsibilities towards the latter group. As is illustrated by the response to Peter Vogt’s claim, creation of equivalence is not a matter states are entitled to avoid or obscure: since clear, accessible regulations governed access to assisted dying for the general population, it was accepted that they must also do so for prisoners. The UK position more clearly violates the principle, since it tacitly endorses divergence whereby the general population are able to travel abroad for assisted services within the DPP’s Guidelines relatively freely, while prisoners, however unbearable their suffering due to certain medical conditions, cannot. Perhaps the most fundamental point raised by defending this principle of equivalence is that if the general population can access assisted dying, any blanket restriction directed at prisoners, or any group of persons, that is not based on clear evidence that it leads to protection for life should be condemned as a violation of Article 8(1) and contrary to the State’s fundamental duty to uphold human dignity.