The right to life at the end of life: A note on Mortier v Belgium App No. 78017/17,4 October 2022

Abstract

The judgment of the European Court of Human Rights in Mortier v Belgium, delivered in October 2022, is the first time the Court has squarely confronted the issue of whether permitting assisted dying is compatible with a state’s obligation to protect life under Article 2 of the European Convention on Human Rights. The case, brought by the son of a woman who had been euthanised, was based predominantly on the argument that the Belgian system of assisted dying failed to adequately protect the lives of vulnerable individuals, such as the applicant’s mother. A majority of the Court held that a permissive assisted dying regime could comply with the positive obligation to protect under Article 2, provided there are safeguards in place including a system capable of ensuring that an individual’s request for assistance is freely made and informed, as well as a posteriori control in the form of supervision of compliance with the legislative and regulatory safeguards. While there were deficiencies in the Belgian system’s a posteriori control which led to a finding of a violation of Article 2, the judgment clearly demonstrates that states can permit assisted dying without violating their protective obligations under Article 2. Significantly, the Court did not consider that permitting assisted dying for individuals whose suffering emanates from a non-terminal condition (including a mental illness) was problematic from a Convention perspective. The judgment is likely to be of considerable interest to policy makers, legislators, medical practitioners, and campaigners in the increasing number of jurisdictions both within the Council of Europe and beyond, that are considering whether to legalise assisted dying and, if so, the parameters of such a regime.

Introduction

In Mortier v Belgium, ¹ the European Court of Human Rights (ECtHR) considered, for the first time, the compatibility of an instance of assisted death under a permissive legal regime with the European Convention on Human Rights (ECHR). A majority of the Court’s Third Section held that permitting assisted dying – including in cases of mental illness – is not incompatible per se with a state’s positive obligation to protect life under Article 2 ECHR. By contrast, the dissenting opinions of Judges Elósegui and Serghides express significant doubts as to the Convention compatibility of legal regimes for assisted dying in practice and in principle, respectively. This significant ECtHR decision is likely to inform ongoing debates on the merits of legalising assisted death across the Member States of the Council of Europe.

Regulatory framework in Belgium

The Law of 28 May 2002 on Euthanasia (the ‘2002 Law’) sets out, inter alia, the substantive and procedural requirements for lawful assisted dying in Belgium. ² The requirements outlined here apply to adults and emancipated minors. ³ The request for assistance must be voluntary, considered, and repeated. ⁴ The individual making the request must be experiencing constant and unbearable physical or mental suffering arising from a serious and incurable condition caused by illness or accident. ⁵ The individual’s condition must be ‘medically hopeless’. ⁶

The attending physician must discuss the patient’s condition with them, including alternative treatment options and, at the conclusion of such discussions, determine (together with the patient) that there is no reasonable alternative. ⁷ Following several conversations with the patient, which must be spread out over a ‘reasonable period’, the physician must be satisfied that the patient is experiencing constant physician or mental suffering. ⁸ The attending physician must consult another physician (the first consulting physician), who in turn must review the medical records and examine the patient, thereafter reporting on their findings regarding the nature of the patient’s condition and their suffering. ⁹ The first consulting physician must be independent of both the attending physician and the patient and must be ‘competent to give an opinion about the disorder in question’. ¹⁰ The 2002 Law further requires that the attending physician discuss the patient’s request with the patient’s medical team (if there is one) and, if the patient so desires, with the patient’s family. ¹¹

Belgium permits assisted dying for individuals whose suffering emanates from mental illness alone and whose death is not imminent. ¹² In such cases, additional requirements (or ‘safeguards’) apply, including the requirement that the attending physician consults a second consulting physician, who is a psychiatrist or a specialist in the condition in question, to establish that the substantive legal criteria are met. ¹³ Finally, the second consulting physician must be independent of the attending physician, the first consulting physician, and the patient.

The physician who performs euthanasia must complete a euthanasia registration document, which comprised two parts. ¹⁴ The first, which contains, inter alia, details of the patient and the doctors consulted (e.g. names and addresses) is confidential and sealed and can only be opened following a decision of the Federal Control and Evaluation Commission (‘the Commission’), ¹⁵ which reviews all instances of euthanasia. ¹⁶ The second part of the registration document is also confidential but not sealed. It contains further information about the patient (e.g. their age and sex), as well as on their medical condition, the nature of their suffering, reasons why their suffering is unrelievable, capacity and voluntariness, the means of euthanasia, and so on. ¹⁷ The Commission determines, by reference to the second part of the registration document, whether there has been compliance with the 2002 Law. The Commission can decide by simple majority to lift anonymity to request the patient’s medical records from the attending physician. For the year 2020/21, the Commission lifted anonymity in 30% of the 5,145 cases considered. ¹⁸ In none of those cases did the Commission find non-compliance with the ‘essential conditions of the law’. ¹⁹

Facts of Mortier

The applicant’s mother, ‘GT’, was assisted to die by euthanasia on 19 April 2012 having suffered from chronic depression for 40 years. ²⁰ GT, who was in her mid-60s at the time of her death, ²¹ was estranged from both of her children; indeed, GT reported that her son (the applicant) was aggressive and she was afraid of him. ²²

GT initially requested assistance from her general practitioner, who refused to assist and referred her to Professor D, an oncologist with expertise in assisted dying. Professor D first met GT at the end of September 2011, agreeing to be GT’s attending physician for the purposes of her euthanasia request. ²³ Professor D referred GT to Dr V, a psychiatrist, with a view to Dr V acting as the second medical professional as required under the 2002 Law. Dr V met with GT in November 2011, concluding that while GT’s prospects were bleak, her request for assisted dying was premature. Dr V suggested that GT consult a different psychiatrist for further treatment and recommended Dr VD for this purpose. ²⁴ GT could not initially reach Dr VD, so Professor D referred GT to another psychiatrist, Dr T. ²⁵ GT met with Dr T on 17 January 2012 (almost 4 months after her first consultation with Professor D). ²⁶ GT also met Dr VD in February 2012. ²⁷

Both Drs T and VD concluded that GT met the eligibility criteria for euthanasia. In particular, the two psychiatrists reported that GT had suffered from chronic depression since adolescence and was experiencing unbearable suffering that could not be alleviated in a manner satisfactory to GT. ²⁸ During their assessment of GT, both Professor D and Dr T were in contact with Dr B, a psychiatrist who had been treating GT since 1996. ²⁹ In Dr B’s opinion, GT’s prognosis was ‘extremely bleak’ and all treatment and care options had been exhausted. ³⁰

GT made a formal written request for euthanasia on 14 February 2012 and, on 29 February, she made a 2500€ donation to Life End Information Forum (‘LEIF’), a non-profit organisation established by Professor D which provides information regarding the medical and legal options available to people who want assistance in dying. ³¹ At the material time, Professor D was the head of LEIF and Drs T and VD were members.

On 19 April 2012, GT died by euthanasia performed by Professor D in a public hospital with several of her friends in attendance. ³² Neither of GT’s children were present. Professor D and Drs D and VD had, on a number of occasions, all encouraged GT to speak with her children about her plans but she had consistently resisted doing so. Nevertheless, GT did email her children outlining her intentions, ³³ and wrote them a letter – presumably to be given to them after her death. ³⁴

The applicant was informed of his mother’s death by the hospital on 20 April 2012. The registration document completed by Professor D was received by the Commission on 20 June 2012. The document was examined by the Commission on 26 June 2012. Significantly, Professor D was the Commission’s co-chairman at the time and, based on established procedure, did not recuse himself from consideration of the registration document. The Commission concluded that the euthanasia of GT complied with the requirements of the 2002 Law. ³⁵

The applicant met with Professor D, Dr T, and a support person on 15 May 2012. ³⁶ In a subsequent letter to Professor D, the applicant described being in a state of ‘pathological grief’, since he had not had an opportunity to say goodbye to his mother. ³⁷ The applicant nominated his psychiatrist, Dr C to access his mother’s medical records. ³⁸ In a report prepared in August 2013, Dr C noted that the euthanasia registration document was not on the file. The applicant requested a copy of the registration document from the Commission in October 2013; that request went unanswered. ³⁹ A subsequent request for access was refused by the Commission, on grounds that this was not permitted by law. ⁴⁰

In April 2014 – 2 years after GT’s death – the applicant filed a complaint against Professor D with the public prosecutor. ⁴¹ In October 2014, the applicant filed his first application with the ECtHR; it was declared inadmissible on the basis that the domestic proceedings against Professor D were continuing. ⁴² In May 2017 – some 3 years after he had filed the complaint – the applicant was informed by the prosecutor that his complaint had been dismissed for want of evidence. ⁴³ In November 2017, the applicant filed the application leading to the present judgement with the ECtHR.

A second criminal investigation was commenced in May 2019 (2 years after the first had been discontinued). A professor of medicine was appointed as an expert to assist the judge investigating and they produced a report in May 2020 which concluded that the eligibility requirements and procedural obligations specified in the 2002 Law had been met. The expert did, however, note that there was no euthanasia registration document in the file and no evidence regarding the Commission’s consideration of the document. ⁴⁴ Professor D was questioned by police in June 2020. Ultimately, the prosecutor considered that GT’s euthanasia had complied with the substantive requirements set out in the 2002 Law and the investigation was closed. The applicant did not appeal this decision. ⁴⁵

The decision of the ECtHR

The applicant alleged that his mother’s euthanasia violated her right to life as protected by Article 2 ECHR, as well as his right to private and family life as protected by Article 8. The applicant also claimed that the lack of a thorough and effective investigation into his mother’s death violated Article 13.

A majority of the ECtHR concluded that Belgium’s assisted dying legislation was not, per se, incompatible with Article 2. The ECtHR did, however, unanimously hold that there had been a violation of Article 2. Specifically, the lack of independence of the Commission (given Professor D co-chaired it and was present when GT’s euthanasia registration document was considered) was incompatible with the State’s procedural obligation to ensure that an effective and independent investigation was conducted into instances of assisted dying. ⁴⁶ A majority of 6:1 concluded that there was no violation of the applicant’s Article 8 rights. The applicant’s Article 13 claim was considered as part of the complaint regarding the procedural obligation under Article 2.

The majority held that euthanasia performed by third parties raises issues with respect to the positive obligation imposed by Article 2, rather than the negative obligation not to take life. ⁴⁷ In reaching this conclusion, the majority observed that if it is not possible to derive a right to die from Article 2, ⁴⁸ the right to life protected by Article 2 should not be interpreted as prohibiting the conditional decriminalisation of euthanasia. ⁴⁹ In the context of euthanasia, the positive obligation to protect life places an obligation on the State: (a) to put in place a legislative framework regulating acts prior to the performance of euthanasia which ensure that the patient’s decision is made freely and fully informed and (b) to ensure there is adequate ex post review securing the procedural protections of Article 2, in particular, the effective, independent, and prompt investigation of deaths. ⁵⁰

Effective legal framework

Five out of the seven judges considered that the 2002 Law met the requirement of an effective legal framework. The 2002 Law requires that the patient make a voluntary, considered, and repeated request for assistance and they must be suffering from a hopeless medical condition emanating from a serious and incurable injury or illness which causes intolerable physical or psychological suffering that cannot be relieved. The majority further noted the 2002 Law’s amplified procedural requirements in cases in which the patient’s death is not imminent, including the duty to consult an additional expert consulting physician. ⁵¹ On that basis, and having regard both to the margin of appreciation owed to States in this area, the majority considered that the 2002 Law is in principle compatible with the State’s positive obligation under Article 2 to protect the right to life. ⁵²

Compliance with the 2002 Law in GT’s case

The same majority held that the physicians and Commission had complied with the 2002 Law in GT’s case. There was no evidence available to the Court to challenge either the competence of the physicians or the correctness of their medical opinions. ⁵³ Further, other elements of the applicant’s complaint failed to show a violation of the 2002 Law. The timing and amount of the donation by GT to LEIF neither created a conflict of interest for Professor D (or Drs T and VD) nor could be interpreted as a quid pro quo. ⁵⁴ The majority observed that the positive obligations under Article 2 require not only the lack of a hierarchical and institutional relationship but also formal and concrete independence between the different physicians consulted. ⁵⁵ However, the majority noted that the LEIF organisation provides training to a large number of doctors who provide assistance in dying and membership of LEIF, without more, was not sufficient to demonstrate a lack of independence on the part of Professor D and Drs T and VD. ⁵⁶

Sufficient ex post control?

The majority did, however, conclude that the fact that Professor D was present and could potentially have contributed to the Commission’s deliberations over GT’s case demonstrated a failing in the ex post review of euthanasia, violating the positive procedural obligations of Article 2. ⁵⁷ Relying on the ECtHR’s existing Article 2 case law to set out the requirements of an effective ex post review of an assisted death, ⁵⁸ the Court noted, in particular, that the investigation must be prompt, effective (in the sense of being capable of ascertaining the facts and holding people accountable as appropriate), and independent. ⁵⁹ Applying these principles, the Court held that giving discretion to members of the Commission to refrain from commenting on cases in which they had been involved was an insufficient guarantee of the independence required by Article 2; only recusal would suffice. ⁶⁰ Further, the 3-year delay between the applicant’s first complaint to the prosecution services and its decision not to proceed violated the requirement that investigations be prompt and, thus, constituted a separate (but related) violation of Article 2. ⁶¹

Separate opinions of Judges Elósegui and Serghides

Judges Elósegui and Serghides (partly dissenting) each concluded – via different routes – that the Belgian legislative framework for euthanasia was incompatible with Article 2 ECHR. Judge Serghides concluded that any form of State-approved assisted dying scheme was incompatible with Article 2. The purpose of euthanasia is to end life and the purpose of Article 2 is to preserve and protect it. ⁶² Notably, Judge Serghides considered that decriminalisaton of euthanasia violates both the negative and the positive obligations under Article 2. Without amendment to Article 2 akin to Protocols 6 and 13 abolishing the death penalty, Article 2 could not be interpreted as permitting assisted dying. Further, Judge Serghides considered (alone) that the violation of GT’s Article 2 rights gave rise to a violation of the applicant’s Article 8 right to private and family life. ⁶³

Judge Elósegui joined with the majority in concluding that the lack of independence of the Commission in GT’s case constituted a breach of the positive obligation of effective ex post investigation. ⁶⁴ She parted ways with the majority, however, in finding that the legal framework provided by the 2002 Law was incompatible with the State’s positive obligations under Article 2. In particular, Judge Elósegui considered that the 2002 Law failed to provide adequate protection to vulnerable individuals. Judge Elósegui noted the failure to involve the applicant in his mother’s request for euthanasia, the involvement of four doctors (Professor D and Drs VC, T, and VD) in a relatively short timeframe (7 months), the divergence in opinion among the medical professionals involved, the missing euthanasia registration document, and Professor D and Drs T and VD’s membership of LEIF. ⁶⁵ Judge Elósegui also described the absence of the euthanasia registration form on the file considered by the prosecutor as ‘astounding’ and considered that it further evidenced the 2002 Law’s failure to protect vulnerable persons. ⁶⁶

Analysis of the reasons

Mortier is the first judgement in which the ECtHR has examined the compatibility of a permissive euthanasia legislative framework with the ECHR. While earlier decisions of the Court have considered specific rights implications of not permitting, or failing to facilitate, assisted dying, ⁶⁷ this case is the first in which a person has challenged an instance of euthanasia which has already been carried out. There are several aspects of the Court’s reasoning, including that of the dissenting judges, that warrant further attention and I will concentrate on two issues in particular. First, I will consider the requirements, as explicated by the majority, for a permissive legal regime for assisted dying to be compatible with the right to life protected by Article 2 ECHR. I will then examine what that means for ECHR jurisdictions considering legalising assisted dying. Second, I discuss the problematic tone of judicial paternalism apparent (in different ways) in both the judgements of Judge Elósegui and Judge Serghides.

Assisted dying and Article 2 – the necessary safeguards

To be compatible with the right to life, Member States that permit assisted dying must put in place an effective legal framework governing the entire process of assisted dying: from the patient’s initial request to ex post review.

The majority was satisfied that, save in one important respect, the composition, function, and powers exercised the Federal Control and Evaluation Commission were sufficient to meet the positive procedural obligations imposed by Article 2: an effective – in particular prompt and independent – investigation. ⁶⁸ It was entirely appropriate for the Court to conclude that the lack of a recusal mechanism undermined the Commission’s independence so as to violate the procedural safeguards of Article 2. The ECtHR case law recognises that justice must not only be done but also be seen to be done. ⁶⁹ A doctor should not determine their own compliance with a state’s assisted dying regime. Even with the unwritten rule that physicians should not speak during deliberations that concern their professional practice, an objective bystander would have serious concerns as to the independence of the reviewing body. The need for the body charged with overseeing compliance with the relevant safeguards to be independent is particularly acute in the context of medical assistance in dying. Debate continues over the legal, moral, ethical, and philosophical legitimacy of such practices and one of the primary arguments against assisted dying is the lack of sufficient protections for vulnerable individuals. A key mechanism by which states that permit assisted dying provide such protections is via oversight provided by independent regulatory bodies. As the Court observed in Mortier, a body charged with ensuring that people who are not eligible are not being assisted to die must be independent both in fact and in appearance from those involved in individual cases. Plainly, a physician who assists an individual to die cannot sit on a panel charged with evaluating whether all the relevant safeguards have been respected, especially when that panel acts as a ‘buffer’ between practitioners and the criminal justice system. In Mortier, the mere presence of Professor D on the panel examining GT’s euthanasia was sufficient to raise significant concerns about the Commission’s independence.

The ECtHR acknowledged that it is for Member States to determine how to organise their regulatory systems. Nevertheless, the majority suggested that Belgium could remedy the issue of the Commission’s independence by increasing the number of members. This would enable a ‘roster’ or ‘docket’ system similar to many judiciaries. Under such an arrangement, not all members would sit on each panel, thereby enabling any member who had a conflict to request not to sit without it being apparent that they were involved in the case. ⁷⁰ The Commission has since responded to the judgement; it observed that, in its view, the only way to address the issue of independence is for the anonymity of the euthanasia registration document to be lifted. ⁷¹ That would require amendment of the 2002 Law. As other authors have observed, the change proposed by the Commission would bring it in line with the procedure elsewhere, including in the Netherlands where reporting is not anonymous. ⁷²

The majority’s conclusion that the delay in the first criminal investigation was incompatible with the obligation under Article 2 to conduct a prompt and effective investigation was also entirely appropriate. Three years is far too long when the facts are, as they were in this case, relatively straightforward. Indeed, that the second investigation was completed within a year is further confirmation that the first investigation fell far short of the requirements of Article 2.

Before moving on from the question of procedural safeguards, it is necessary to make note of a perplexing contention by Judge Elósegui that Belgium is the only permissive jurisdiction that relies on ex post control alone to ensure safeguards are complied with. ⁷³ The other permissive jurisdictions, it is suggested, have some of form ex ante control which ensures that legal guarantees are protected. It is not obvious that other permissive jurisdictions have ex ante controls that Belgium does not. The regulatory framework in Belgium is largely modelled on the Netherlands. Luxembourg (which permits assisted dying for individuals whose suffering emanates from a mental illness) has the National Control and Assessment Committee which engages in ex post consideration of the compliance with the legal criteria for euthanasia. The ECtHR’s analysis in the recent judgement of Lings v Denmark, ⁷⁴ which Judge Elósegui prays in aid, shows that recent Spanish legislation requires ex ante evaluation by ‘external experts appointed by a regional evaluation commission’, which seems a difference of degree, and not of kind to the Belgian consultation requirements. In other jurisdictions outside Europe including, for instance, Canada, there are no ex ante controls beyond those required by the 2002 Law. ⁷⁵ Given that in most other jurisdictions, eligibility is confined to individuals whose deaths are imminent (typically within 6 months of the request for assistance), to require ex ante control beyond that which we see in Belgium could unduly lengthen the process and compromise the ability of individuals to control the manner and timing of their death. ⁷⁶ Insofar as Judge Elósegui’s requirement of ex ante control might be limited to cases involving mental illness and/or non-terminal illnesses, it is still erroneous to contend that Belgium stands alone in its system of oversight. That said, it should be noted that jurisdictions that are currently considering introducing assisted dying (or expanding their existing permissive regimes to cover mental illness) are considering the possibility of ex ante/prospective regulatory control. ⁷⁷

Judicial paternalism and the obligation to live

Judge Elósegui lamented what she perceived to be ‘old medical paternalism’ apparent in the way in which GT was treated. Yet, there are aspects of Judge Elósegui’s own reasons which reflect a form of judicial paternalism that is seriously out of step with our contemporary understandings of capacity and patient autonomy. In particular, at paragraph 23 of her opinion, Judge Elósegui stated that euthanasia in the context of patients with mental illness raises the issue of whether such individuals enjoy the autonomy necessary to provide informed consent to euthanasia. While such a general statement is not necessarily problematic, the judge’s query as to whether GT was ‘truly fully autonomous, aware and free to choose’ is troublesome. Such a characterisation of GT as being incapable of providing informed consent is entirely inconsistent with the evidence that was before the ECtHR and with the picture of GT that emerges from that evidence. There was no suggestion, even by those doctors who considered her request to be premature, that she lacked capacity or was not ‘truly fully autonomous’. Any doubts were limited to whether GT had exhausted all routes of treatment. Without further clarification as to what specifically in GT’s case rendered her incapable of valid consent, Judge Elósegui’s reasons could be interpreted as suggesting that mental illness per se renders a person incapable of providing consent to euthanasia.

Judge Elósegui was also particularly critical of the doctors involved in GT’s case, especially GT’s long-term psychiatrist, for not ensuring that GT’s children were involved in her euthanasia. But the evidence very clearly demonstrated that the doctors involved repeatedly suggested that GT contact her children, which she repeatedly resisted. (Ultimately, at the suggestion of her doctors, she emailed them, only to receive no reply from her son.) Here, Judge Elósegui’s argument smacks of paternalism; she would have doctors override a competent patient’s wishes not to involve family members. Of course, the involvement of family and loved ones in a person’s medical treatment, whether end-of-life care or otherwise, is often very important. It is also true that a person’s decision to end their own life will have ramifications for those who love and care for them. ⁷⁸ But these propositions do not, all things considered, support a principle requiring doctors to involve family or loved ones contrary to a competent patient’s wishes. To do so would undermine patients’ rights to make decisions regarding their medical treatment, as well as their interests in privacy and confidentiality. It would likely have profound implications for trust between patients and physicians.

Judge Serghides’s separate dissenting opinion might be interpreted as espousing a different form of paternalism. More specifically, his finding that Article 2 does not permit euthanasia in any circumstances could be interpreted as imposing an obligation to live. According to Judge Serghides, Article 2 ‘protects everyone’s right to life, and neither this provision nor any other article of the Convention enshrines the right to die’. ⁷⁹ So much is plain from the wording of Article 2. However, this provision has not prevented states from permitting the withdrawal of life-sustaining treatment from patients who are in a persistent vegetative state. ⁸⁰ Judge Serghides’s conclusion at paragraph 5 of his opinion that no form of euthanasia can preserve the right to life as required by Article 2 sits at odds with this wider end-of-life jurisprudence of the ECtHR. However, it appears from the last paragraph of the Judge’s dissenting reasons, that he was limiting his observations to cases of ‘active euthanasia’ (as distinguishable from cases of ‘passive euthanasia’ such as palliative sedation or withdrawal of life-sustaining treatment). Nevertheless, Judge Serghides’s reasons are based on a conceptualisation of the right to life which suggests that the mere fact of living is sufficient to render the right ‘effective’. ⁸¹ Conceiving of the right to life in this way is question-begging. As Lord Kerr in the UK Supreme Court case of Nicklinson ⁸² asked, ‘is the sanctity of life protected or enhanced by insisting that those who freely wish to but are physically incapable of bringing their lives to an end, should be required to endure untold misery until a so-called natural death overtakes them?’ ⁸³

Where to from here?

The findings of the ECtHR in Mortier that permitting euthanasia, including in non-terminal cases and where the individual’s suffering emanates from mental illness, is compatible with the State’s obligations under Article 2 of the ECHR will be highly relevant to those European countries currently considering whether to introduce legislation permitting assisted dying. It will also be of interest to those jurisdictions that have legalised assisted dying but have limited it to patients with terminal conditions (which is the majority of permissive jurisdictions). The number of jurisdictions that allow some form of assisted dying continues to grow. When the 2002 Law was passed, less than five jurisdictions worldwide permitted active euthanasia and/or assisted suicide. Today, assisted dying has been legalised in over 27 countries, states, or territories. ⁸⁴ Further, a number of domestic courts in Member States have, in recent years, held that criminal prohibitions of assisted dying (in particular, assisted suicide) are incompatible with domestic rights instruments. ⁸⁵ The judgement in Mortier is consistent with this growing jurisprudential trend among Members States, though it is still well short of what a ‘consensus’ such as might reduce the wide margin of appreciation States currently enjoy when it comes to regulating assisted dying.

Beyond the Court’s recognition that the positive obligation to protect life under Article 2 does not preclude permitting assisted dying, the Court’s discussion of what safeguards are necessary for permissive regimes to comply with Article 2 is also likely to be of interest to those states that already permit assisted dying (and who may now wish to revisit the ECHR compatibility of their regulatory regimes), as well as those currently considering legislation to legalise assisted dying. ⁸⁶ The relevance of the discussion of positive procedural obligations in Mortier is not confined to Europe. While in Canada, the report on extending medical assistance in dying to individuals suffering from mental illness had already been submitted by the time the Mortier judgement was handed down, ⁸⁷ the judgement may inform the Canadian Parliament’s consideration of the issue in due course.

Conclusion

Two decades after the ECtHR first recognised that Article 8 of the ECHR protects the right to choose the manner and timing of one’s death, ⁸⁸ the ECtHR in Mortier has found that allowing euthanasia generally and in the context of individuals whose deaths are not imminent and/or whose suffering emanates from mental illness is compatible with one of the most fundamental provisions of the ECHR: Article 2. There has been significant evolution in the regulation of assisted dying practices both within Europe and worldwide in that time, though it remains the case that only a minority of countries and state/territories permit assisted dying in some form. Nevertheless, Mortier joins a growing list of judgements of domestic courts in both Europe and beyond that have recognised that assisted dying is compatible with human rights law.