Taking ‘the right to life’ seriously: Addressing the role of ‘the right to life’ in the context of assisted dying

Abstract

This article highlights the crucial role of the right to life protected in Article 2 of the European Convention of Human Rights (‘ECHR’) within the context of assisted dying. It notes four different potential roles for Article 2, with a special focus on its positive obligations and including an argument that the United Kingdom may be in violation of its positive obligations under the provision because of the unavailability of assisted dying domestically. The article is also a reminder of established, but also recent Strasbourg jurisprudence that highlights the need for safety when assisted dying is offered as an option by a Member State. We argue that Article 2 has the potential to play a crucial role in ensuring that Member States find the right balance between choice and safety, in protecting both the lives of those who may be at risk by the availability of the option, while also allowing individuals to choose death over life when they so choose. This will strike the right balance between Article 8 and Article 2, but also within Article 2 itself, with the ‘right to life’ of different individuals engaged.

Introduction

Among the extensive literature on assisted dying, ¹ there has been little focus on the varied applications of the right to life to this issue, especially if compared to other provisions such as the right to private life under Article 8 of the European Convention of Human Rights (‘ECHR’). ² In this article, we analyse and discuss the different ways in which Article 2 has been argued in cases concerning assisted dying. In doing so, we identify four distinct roles for the provision and make a case for a future focus particularly upon the two positive obligations’ arguments. The article offers an important take on the compatibility of a blanket ban on assisted dying with the right to life. Article 2 is often seen as one-dimensional in respect of assisted dying – as a legal manifestation of the ethical principle of sanctity of life – but we argue that it is a far more complex human right with much more to offer in the assisted dying context. ³ This is a timely endeavour because the latest calls for the legalisation of assisted dying within the United Kingdom – England and Wales, ⁴ Scotland, ⁵ and in the UK Crown Dependencies such as Jersey, ⁶ and the Isle of Man ⁷ – are becoming harder for politicians to ignore. ⁸ Of course, the extensive judicial challenges and statutory attempts to legalise, as well as public campaigning should be acknowledged in addition to the recent developments. Beyond the United Kingdom, legislation has recently been enacted elsewhere within the Council of Europe, namely in Spain, ⁹ Austria, ¹⁰ and Portugal, ¹¹ with Ireland ¹² currently actively engaged in the debate. While the autonomy-based arguments in favour of legalisation under Article 8 ECHR continue to carry great weight following the European Court of Human Rights’ (‘ECtHR’) finding in 2002 that the prohibition of assisted suicide interferes prima facie with the Article 8 right to self-determination in the timing and manner of one’s death, ¹³ and the subsequent use of Article 8 in domestic case law, Article 2 offers an additional route to challenging domestic prohibitions, such as the one in the United Kingdom, but also ensuring that where legislation is already in place, that this strikes the right balance between safety and choice. The latter argument is highlighted in the 2022 judgement of the ECtHR in Mortier v Belgium. ¹⁴ Article 2 plays a crucial role post-legalisation in ensuring appropriate safeguards are in place. Therefore, Article 2 has a two-fold role to play, both in relation to challenging domestic prohibitions in the first place, but also ensuring that, after a framework is eventually in place, that this operates safely, and respects the rights of all those potentially affected by the prohibition.

Article 2 guarantees to everyone the right to life, creating positive obligations on Member States of the ECHR to protect life (Article 2(1)), and ‘negative’ obligations not to deprive individuals of their lives subject to exceptions set out in Article 2(2). ¹⁵ From these twin obligations, we derive four different ways in which Article 2 is shaping the law and practice relating to assisted dying.

First, the right to life has been used to argue for the creation of a right to be assisted in dying. Article 2 was used in this way by Diane Pretty in 2001, ¹⁶ but the argument was strongly rejected by both the House of Lords and the ECtHR. We label this early use of Article 2 as the ‘right to die’ argument and, in Part I of this article, we argue that it is unlikely for this provision to be used in the same way in the future.

A second, and intuitively appealing use of the right to life, is to argue that assisted dying must be prohibited due to Article 2’s prohibition of the intentional taking of life subject to the exceptions found in Article 2(2). These exceptions do not cover assisted dying. Part II of this article discusses what we label as the ‘prohibitive’ argument under Article 2 in respect of the legal position of the Member States which currently permit forms of assisted death. We draw a distinction between assisted suicide and voluntary active euthanasia (‘VAE’), ¹⁷ excluding the former from the ambit of Article 2’s ‘prohibitive function’ and arguing that the ECtHR’s light-touch approach to the regulation of end-of-life ethical issues means that the latter, VAE, also likely escapes Article 2’s prohibitive effect. ¹⁸

Third, we investigate the ways in which the right to life can be used to require very high standards of safety and control in the jurisdictions that already regulate assisted dying in all the three levels of regulation: before, during, and after the act of assistance. This was first established in Haas, ¹⁹ and more recently re-affirmed in Mortier ²⁰ as we discuss in Part III of this article. We argue that this ‘safeguarding’ argument, as we call it, is a crucial aspect of Article 2’s role in relation to assisted dying, its regulation and practice, and one that could provide the necessary confidence for Member States, such as the United Kingdom, to move towards decriminalisation and regulation.

Fourth, we explore the argument that the right to life can be used to require decriminalisation and regulation of assisted dying in some circumstances. Article 2 has been (unsuccessfully) used by claimants in England and Wales to argue that Member States which do not permit assisted deaths may be in breach of their positive obligations under Article 2 to protect the lives of those individuals who wish to die when they choose to do so. This argument relies on the premise that individuals may feel forced to end their lives earlier than they would have wished in order to ensure they were still physically able to do so. Put differently, the argument is that the lives of these individuals are shortened by the unavailability of the option of a domestic assisted death. This particular use of Article 2, which we label the ‘extending life’ argument, is explored in Part IV of this article, and we argue that it holds previously unrealised potential for supporting the case for legalisation. A system can be put in place that would be compliant with Article 2 and the right to life of all those likely impacted by the introduction of such law, in striking the right balance even within Article 2 itself.

Article 2 and ‘a right to die’

When Diane Pretty used Article 2 to challenge the prohibition of assisted suicide ²¹ in England and Wales, both the House of Lords and the ECtHR were emphatic in their rejection of the interpretation asserted by the claimant. A provision that protects the sanctity of life, framed in narrow language cannot permit the deliberate ending of life via the recognition of an antithetic ²² or a diametrically opposite right, ²³ that is a right to die or a right to self-determination on matters of life and death. In Nicklinson in 2014, Lady Hale acknowledged the complexity of the moral arguments around assisted death, including that of ‘the intrinsic value of all human life’, and warned against using it ‘as the legitimate aim of the legislation’. ²⁴ Then in 2017, what the High Court did in Conway was the complete opposite, elevating the importance of the sanctity of life principle in Article 2 to that of exactly a legitimate reason for the prohibition. In a case brought by Mr Noel Conway, the High Court rejected the claimant’s argument challenging the domestic prohibition not only on the basis of the need to protect the weak and the vulnerable, which is often the concern of the public, politicians, and the courts, but also to protect the sanctity of life and to promote trust and confidence between doctors and patients. ²⁵ In this way, two new justifications for the prohibition of assisted suicide in England and Wales were accepted by the High Court.

While we agree that perhaps Article 2 is not the right provision to explicitly recognise a right to die or a right to self-determination in this context, we consider the rationale for this rejection by the House of Lords in Pretty and the agreement of the ECtHR rather simplistic. It is simplistic because this approach almost equates the right to life with the sanctity of life principle. This is wrong as evident from the provision’s rich jurisprudence, which we use below to demonstrate the direction of the debate and the role of the right to life. Specifically in Conway, the use of the sanctity of life principle is perhaps even more problematic as it is elevated to a justification (‘a legitimate aim’) for the domestic prohibition, separately showing a worrying trend that perhaps means that judicial progress on the subject has been stalled, at least in England and Wales. ²⁶ Our own interpretation of the right to life in this context is much broader than one encompassing primarily the sanctity of life, and reflects notions such as ‘dignified existence’, ²⁷ the integrity of the person ²⁸ or ‘human dignity’. ²⁹ Nonetheless, we argue that the right to life is unlikely to be interpretated to recognise a right to die or a right to self-determination, seeing that it seems to distort its ‘proper role’ within the Convention. The ECtHR recently re-affirmed its position in Pretty in Mortier v Belgium, ³⁰ which we examine later, and Lings v Denmark. ³¹ It is on this basis that many hastily dismiss Article 2’s use in the assisted dying discourse as insignificant. As we examine in the rest of the article, this is unsubstantiated, as the provision’s use in different ways shows that, in reality, its scope is much broader than the sanctity of life principle.

Does Article 2 prohibit? ‘The prohibitive argument’

Article 2 prohibits the intentional deprivation of life subject to the exceptions listed in Article 2(2). These exceptions neither explicitly nor by interpretation cover assisted suicide or VAE. Simply put, it does not matter whether the individual requests or consents to the intentional taking of life, no third party is allowed to take another individual’s life. ³² This may at first seem to be the end of the discussion with regards to Article 2 and ‘negative’ obligations. However, there is an important distinction to be made between assisted suicide and VAE in this particular context of Article 2 and ‘negative’ obligations, as only the latter can be argued to involve an intentional deprivation of life by a third party. Assisted suicide, by definition, involves only assisting a person to end their own life and thus is unlikely to be prohibited by the negative obligation in Article 2. But what of the Member States which are signatories to the Convention which allow a form of VAE? ³³ Are they in breach of their ‘negative’ state obligations under Article 2 which prohibit the intentional deprivation of life? Despite this seeming to be a fundamental question for the jurisprudence on the right to life and the role of the provision more generally, there has been little focus on it in the ECtHR jurisprudence. ³⁴ Some of the dissenting judges in the recent Mortier judgement did partly address this issue. For example, and as also discussed by Stevie Martin, ³⁵ Judge Serghides concluded that any form of state-approved ‘assisted dying’ scheme was incompatible with Article 2. The Judge expressed the view that the purpose of euthanasia is to end life and the purpose of Article 2 is to preserve and protect life. ³⁶ Such a stark position leads to the inevitable conclusion that without amendment to Article 2 akin to Protocols 6 and 13 abolishing the death penalty, Article 2 cannot be interpreted as permitting VAE. ³⁷ As Martin argues, such an approach to Article 2 could be interpreted as imposing an ‘obligation to live’ ³⁸ and this is certainly not the focus of the provision. Martin points out that Article 2 does not prevent Member States from permitting the withdrawal of life-sustaining treatment from patients who are in a persistent vegetative state ³⁹ and thus Judge Serghides’s conclusion sits at odds with this wider end-of-life jurisprudence of the ECtHR. ⁴⁰ Arguably, the ECtHR treats Article 2 as a quasi-qualified right comparable to Articles 8-11, by giving a wide discretion to Member States in deciding how to regulate end of life decision-making, and in particular whether to prioritise individual autonomy or the preservation of human life. This can be seen in the context of withdrawal of treatment where the question of whether ‘withdrawing treatment’ is an ‘intentional deprivation of life’ within the meaning of Article 2 is a controversial issue. ⁴¹ The ECtHR faced this thorny issue in the case of Lambert v France. ⁴² In a crucial passage, the Court noted that both the applicants and the Government had drawn a distinction between the intentional taking of life and ‘therapeutic abstention’ and the Court stressed the importance of that distinction. ⁴³ The Court concluded that the present case did not involve France’s negative obligations under Article 2 (in other words, the question of intentional deprivation of life) but reached this conclusion specifically only within ‘the context of the French legislation, which prohibits the intentional taking of life and permits life-sustaining treatment to be withdrawn or withheld only in certain specific circumstances’. ⁴⁴ The wording of this passage by the Court raises the possibility that a different conclusion might be reached in respect of a different jurisdiction. However, it was highly likely that the same approach would be applied to a state such as the United Kingdom which similarly prohibits assisted suicide but permits withdrawal of life-sustaining treatment within specified circumstances, ⁴⁵ and indeed this was subsequently confirmed in Gard and Others v the UK. ⁴⁶

Subject to the caveat of jurisdictional context, it appears post-Lambert that the ECtHR takes the view that withdrawal of treatment does not amount to an intentional deprivation of life under Article 2 and that such issues are to be considered solely as aspects of the state’s positive obligations under the provision. This might be criticised as side-stepping the challenging proposition that withdrawal of life-sustaining treatment amounts to an intentional deprivation of life for the reason that acceptance of such a proposition would present real difficulties in the context of Article 2’s lack of relevant exceptions to the prohibition of deprivations of life. Nonetheless, the ECtHR’s approach ensures that a wide discretion is maintained for Member States on the regulation of these life-and-death choices, and a similar approach is likely to dominate the ECtHR’s thinking in respect of VAE. ⁴⁷ In Lambert, the ECtHR noted that Member States should be able to decide not only whether to permit or restrict the withdrawal of clinically assisted nutrition and hydration (‘CANH’), but also whether and how personal autonomy and the right to life should work together. In other words, the balancing exercise remains upon the discretion of each Member State. ⁴⁸

In this part of the article therefore we argue that, although a literal interpretation of the ‘negative’ state obligations under Article 2 might suggest that the prohibition of intentional deprivation of life prevents the legal regulation of VAE, in practice the ECtHR always grants a large degree of discretion ⁴⁹ to each Member State to determine issues in the end of life context and therefore it is unlikely to regard the prohibition on intentional deprivation of life to be relevant to assisted dying regimes, preferring to categorise such frameworks within the context of positive obligations.

Furthermore, Article 2 clearly has not prevented some Member States from regulating a form of assisted death in the form of VAE without thus far being found to be in breach of Article 2. ⁵⁰ We think it may be pertinent that these jurisdictions have kept in place their criminal prohibitions, ⁵¹ while making assisted suicide and/or VAE subject to exceptions. By not decriminalising entirely, these Member States still categorise actions that ‘intentionally deprive’ individuals of their lives as prohibited, in line with the prohibitive function of Article 2. In this way, they maintain a mechanism for punishing those who ’deprive life’ in a manner not compatible with the right to life, while ‘deprivation of life’, at least for VAE, is accepted or regulated in specific circumstances and under the supervision of either a public or a private institution authorised by law. ⁵²

We believe that this argument provides a justification for the reality that some Member States have regulated forms of assisted death for many years without being found to be in violation of Article 2. Indeed, in some Member States such regulation, or at least its practice, predates the ECHR itself. ⁵³ As we discuss in the following section, when recently asked to review the compliance of a death by VAE in Belgium with the requirements of Article 2, the ECtHR focused on the procedural requirements of the Belgian legislative framework and declined to find Belgium to be in substantive violation of the right to life despite permitting persons to have their life ended in a seeming ‘intentional deprivation of life’. We think the message is clearly being sent that the ECtHR does not regard the regulation of assisted dying as automatically violating Article 2, but rather that the ‘devil is in the detail’ in terms of whether, examined on a case-by-case basis, an assisted death deprives an individual of their life in contravention of the protection of Article 2. A crucial factor in determining this will be the operation of appropriate and sufficient safeguards. We now proceed to examine the positive obligations under Article 2 which require such safeguarding.

Article 2 and positive obligations of member states already permitting a form of assisted death: ‘the safeguarding argument’

For Member States that already permit forms of assisted death, the positive obligations imposed under Article 2, which as Osman v the UK established require appropriate steps to safeguard lives, ⁵⁴ require very high standards of safety and control before, during, and after the act of assistance. The first case to consider positive obligations under Article 2 within the context of assisted suicide ⁵⁵ was the 2011 case of Haas v Switzerland, in which the claimant, who suffered from bipolar disorder for over 20 years, attempted but failed to obtain the prescription for the lethal substance required under Swiss law for him to end his life. ⁵⁶ The claimant’s argument that this breached his right under Article 8(1) to control the manner and timing of his death was rejected by the ECtHR. ⁵⁷ The court found that Swiss authorities did not owe a positive obligation under Article 8(1) to ‘create the conditions’ for committing suicide. ⁵⁸ On Article 2, the ECtHR found that the provision created positive obligations on Member States that already allow forms of assisted death to put in place a procedure to ensure that the decision to request assisted suicide is safe. ⁵⁹ In this case, the Swiss government had acted compatibly with its ECHR obligations and was entitled to prevent assisted suicide, and in fact deny it in this case if the proper procedure was not met.

Haas highlights the crucial role Article 2 has in the protection of life in jurisdictions that already permit some form of assisted death. The decisions of the domestic courts in Switzerland and of the ECtHR rightly highlighted the importance of safeguards, especially in the context of a liberal regulatory framework. ⁶⁰ The decision of the ECtHR serves as a reminder to Member States that, despite regulation, the right to life remains crucial and sets vital boundaries around who, when, how one can be assisted to die. The case also serves as a reminder that there is no absolute right to assisted suicide. It is instead an option subject to specified requirements and legal and procedural safeguards to which there must be adherence.

In a more recent case concerning Article 2’s positive obligations in jurisdictions already regulating forms of assisted death, Mortier v Belgium, the importance of safeguards in permitting assisted death is again emphasised. The ECtHR in the case renewed its commitment to a safe offering of assisted dying in permissive Member States. The applicant was the son of Mrs Godelieva de Troyer, a 65-year-old Belgian woman who had suffered from depression for over 20 years and died from euthanasia. ⁶¹ Under Section 3(1) of the Belgian Law of Euthanasia 2002, euthanasia is not a criminal offence if: the patient has attained the age of majority, or is an emancipated minor, or an unemancipated minor with capacity; is legally competent and conscious at the moment of making the request; the request is voluntary, well-considered, repeated, and not the result of external pressure; and the patient is in a medically futile condition of constant and unbearable physical or mental suffering that cannot be alleviated and results from a serious and incurable disorder caused by illness or accident. ⁶² The applicant, among other things, claimed that legal safeguards in Belgium are insufficient, and using Article 2’s positive obligations argued that Belgium failed to protect his mother’s life, as well as that there was a lack of a thorough and effective investigation into her death.

In its judgement, the ECtHR noted that this was the first time it was required to examine the conformity with the Convention of a death by euthanasia, as opposed to assisted suicide. ⁶³ The ECtHR had to determine whether euthanasia, defined in Belgian law as an act carried out by a third party which intentionally puts an end to the life of a person at her request, may, in certain circumstances, be carried out without contravening Article 2. ⁶⁴ This case was not, the Court emphasised, about whether there is a right to euthanasia. ⁶⁵ As in other judgements on related issues, the Court placed the interaction between Article 2 and Article 8 at the forefront of its reasoning reiterating that the right of individuals to choose the manner and time of the end of their life, provided that they are able to form their will freely in this regard and to act accordingly, is protected under Article 8. ⁶⁶ The ECtHR acknowledged that it must take account of Article 8 in the context of examining a potential violation of Article 2. ⁶⁷

Perhaps the most important finding of the ECtHR in Mortier was that it confirms that Article 2 cannot be interpreted as prohibiting the conditional decriminalisation of euthanasia. ⁶⁸ This conclusion sits alongside the Court’s previous finding (in Pretty) that it is not possible to deduce a right to die from Article 2, and together these two judgements highlight the complexity of the right to life’s role in the assisted dying context. Of central relevance to this discussion was the ECtHR’s recognition that the decriminalisation of euthanasia must be framed by the establishment of ‘adequate and sufficient safeguards aimed at preventing abuse and, thus, ensuring respect for the right to life’. ⁶⁹ The Court therefore had to closely examine the particular circumstances of the Mortier case, including the legislative framework and its compliance in this specific case. ⁷⁰ As Belgian law contains no requirement for a review prior to the act of euthanasia by an independent body, the Court noted that it will ‘be more attentive, when examining the case, to the existence of material and procedural safeguards’. ⁷¹ The Court also suggested that requests for euthanasia made on the grounds of mental, rather than physical, suffering (as in this case) will require reinforced guarantees surrounding the decision-making process. ⁷² Thus it was clear that the specific facts of Mortier were particularly challenging for a regulatory framework on euthanasia, and that perhaps if such a voluntary death was compatible with Article 2, other less contentious examples of regulated forms of assisted deaths in other jurisdictions will present less challenging questions for the Courts, domestic and ECtHR, under the right to life.

In general terms, the ECtHR made clear that the legislative framework regulating acts prior to euthanasia must make it possible to ensure that the patient’s decision to request that end of life ‘is taken freely and with full knowledge of cause’. ⁷³ The Court found that the framework in Belgium was sufficient to ensure that an individual’s decision to end his life has been taken freely and knowingly, attaching particular importance to the additional guarantees provided for cases concerning mental suffering and where death will not occur in the short term, and to the requirement of independent doctors. ⁷⁴ This is a key finding because it clarifies that it is possible for Member States to legalise euthanasia in a manner that complies with the requirements of the right to life. It highlights, as long suspected, that the key issue will be the specific nature of the safeguards in place to ensure assisted deaths are voluntary and autonomous decisions. This means that the balance between respecting autonomy under Article 8 and protecting life under Article 2 will be struck by focusing on the decision to die and whether it meets requisite standards of voluntariness and capacity.

The Court also considered the procedural positive obligations in relation to deaths arising from euthanasia and noted that the requirements of an effective investigation should be applied in cases where a performance of euthanasia is the subject of a complaint by a relative of the deceased, credibly indicating the existence of suspicious circumstances. ⁷⁵ Belgium was found to violate the procedural requirement of an effective investigation under Article 2 in two ways. First, the Commission was found not to be sufficiently independent because the physician who performed the euthanasia was not prevented from sitting on the Commission and voting on whether his own acts were compatible with the law. ⁷⁶ Given that there was no prior independent review in the Belgian system, the check carried out by the Commission was required by the Court to be conducted in a ‘particularly rigorous manner’ in order to satisfy the requirements posed by Article 2 ⁷⁷ and Belgium did not meet this high standard. Second, the Court found Belgium to have failed to satisfy the requirement of promptness required by an effective investigation under Article 2 due to two lengthy criminal investigations lasting over 4 years. ⁷⁸

The ECtHR in Mortier therefore unanimously found Belgium to be in violation of Article 2 because it had failed in its positive procedural obligation, both because of the lack of independence of the Commission and because of the length of the criminal investigation. ⁷⁹ As Stevie Martin reminds us, ‘the lack of sufficient protections for vulnerable individuals’ remains one of the primary concerns of assisted dying sceptics. ⁸⁰ A key safeguard mechanism is the oversight of the process, the issue at stake in Mortier. As a whole, the judgement sends a clear message that Article 2 requires very high standards of safety and control from Member States who regulate forms of assisted death. While legalisation is now unambiguously seen as permissible under Article 2, it must be accompanied by robust safeguards before, during, and after an assisted death. In line with the ECtHR’s message in many contexts, the practice is just as important as the law ⁸¹ and it remains possible for either an entire regulatory framework on assisted death, or a particular aspect of it, to violate the ECHR’s protection for the right to life.

The outcome of the case and the reasoning of the ECtHR is significant for the role of Article 2 in jurisdictions that already permit a form of assisted death, especially as law and practice continue to develop in line with changing societal attitudes and medical advances. ⁸² Distinct from the arguments explored earlier which sought to establish Article 2 as either supporting or preventing choices about dying, this ‘safeguarding’ use of Article 2 provides a more nuanced role for the right to life which sits alongside autonomy-based rights to choose the means of one’s death and demands that any such choice is sufficiently interrogated to ensure autonomy is being respected rather than undermined. Article 8 offers a means to build an argument in favour of the legalisation of assisted death, but it only has meaning when situated alongside the essential safeguards guaranteed by Article 2, which not only provide the boundaries of this exercise of autonomy, but also bolster that autonomy by ensuring that a non-autonomous choice is not the gateway to an early death.

Article 2 and positive obligations of member states to protect the life of individuals unable to resort to an assisted death: ‘the extending life’ argument’

Article 2 has also been used in a different way before English courts to challenge the prohibition of assisted dying. This argument relies on the premise that individuals may end their lives earlier than they would have wished in order to ensure they were still physically able to do so, contesting the compatibility of the United Kingdom with its positive obligations under Article 2 and even requiring the creation of a framework that will allow such choice.

The first judicial challenge that used Article 2 to make this argument was brought Mr Tony Nicklinson, a man in his late 50s, who was paralysed and unable to speak following a stroke. ⁸³ Mr Nicklinson’s particular argument was that the current law and practice in England and Wales fail to adequately regulate assisted suicide and VAE in breach of Article 2. In other words, that the very absence of legislation is in breach of Article 2. The argument was not about the right to life encompassing a right to die, or a right to self-determination as Diane Pretty’s rather, that the lack of regulation means that ‘covert, unregulated, and amateur assisted suicide and euthanasia’ take place excluding healthcare professionals from safeguarding the procedure while putting the lives of vulnerable individuals at risk triggering state obligations under Article 2. ⁸⁴ This threat to life is what the claimant argued specifically breached the United Kingdom’s positive obligations under Article 2. The claimant noted that the United Kingdom does not discharge its duty under the positive obligations’ aspect of Article 2 merely by having in place criminal provisions to prohibit assisted dying, suggesting that more is needed (a regulatory framework) to prevent individuals from accessing assisted deaths by unregulated means which may pose a threat to life. ⁸⁵

Ultimately, the claimant’s Article 2 argument was unsuccessful. It was rejected by the Divisional Court and not pursued further. The specific reason for its rejection was that the argument was not applicable to the claimant himself, and was a general challenge of the law. ⁸⁶ However, when the case reached the UK Supreme Court (‘UKSC’), Lord Neuberger suggested that the value of life is not an argument that can be used only by those opposing legalisation; Section 2(1) of the Suicide Act 1961, in particular, means that some individuals are forced or pushed to end their lives earlier than necessary for fear of loss of physical and mental capacity. ⁸⁷ Lord Neuberger accepted that the law not only ‘adversely impinges’ on the personal autonomy of these individuals, but also indirectly shortens their lives. ⁸⁸ For this reason, the ‘extending life’ application of Article 2 in the assisted dying context cannot be ruled out. Although there was not much else discussed on the provision by the UKSC, the argument remains relevant. Indeed, this very application of the right to life has been successfully used in Canada to trigger the enactment of legislation in 2016. ⁸⁹ In 2015, the Canadian (federal) Supreme Court (‘CSC’) endorsed the trial judge’s finding in the British Columbia Supreme Court ⁹⁰ that the right to life protected by Section 7 of the Charter was engaged by the federal prohibition by forcing individuals to take their own lives earlier, when they were still able to do so without assistance. In other words, the CSC accepted that a blanket ban may shorten life, and thus engage the right to life, and required justification. ⁹¹ The case has been discussed extensively. ⁹²

Possibly inspired by this Canadian development, these issues were explicitly raised in a later English case, that of Omid T, a 54-year-old man who suffered from Multiple System Atrophy, a non-terminal, but irreversible and deteriorating disease. ⁹³ The claimant asked for a declaration under Section 4(2) of the Human Rights Act (‘HRA’) that Section 2(1) of the Suicide Act 1961 is incompatible with Articles 2 and 8 of the ECHR. In terms of Article 2, he argued that because of the prohibition of assisted suicide and VAE, individuals in his position, including himself, may decide to end their lives earlier than planned fearing either physical or mental incapacity in seeking alternatives, including travelling abroad to die. ⁹⁴ This meant that his life, and the life of others in his position, he argued, will be shortened, ⁹⁵ triggering the United Kingdom’s positive obligations to protect and safeguard life under Article 2. ⁹⁶ Conversely, if domestic legislation was in place, the claimant and others in his position, could control the manner and timing of their deaths by choosing when and how to end their lives. ⁹⁷ The claimant argued that, similar to other qualified rights, the United Kingdom needs to show that this restriction to the claimant’s rights is necessary and proportionate, and serves a legitimate aim. ⁹⁸ The United Kingdom, the claimant noted, should strike the right balance between protecting his life from ending prematurely, while protecting the lives of individuals whose lives may be at risk by the availability of the choice. ⁹⁹ What the claimant is likely implying here is the need for a balance within Article 2, between different people’s rights to life, as well as between this right and others. ¹⁰⁰

Following the death of Mr Omid T in Switzerland, the same argument under Article 2 was put forward in Newby in 2019, based on the same line of reasoning as in Omid, but without success. ¹⁰¹ The High Court refused to grant Mr Newby permission to challenge the human rights compatibility of the prohibition of assisted suicide in England and Wales via Article 2 and Article 8. Irwin LJ, among other things, remarked that the Court ‘is not an appropriate forum for the discussion of the sanctity of life’, ¹⁰² clearly a missed opportunity for the Courts to engage with the role of Article 2 in the assisted dying context, which has yet to be clarified by the judiciary in the United Kingdom. In January 2020, the Court of Appeal refused Mr Newby’s application for permission to appeal the High Court’s decision. English Courts do not thus far seem prepared to engage with Article 2 in this specific context.

We argue here that this ‘extending life’ argument under Article 2 has merit. The positive obligation imposed upon a Member State under Article 2 requires the Member State ‘to take appropriate steps to safeguard the lives of those within its jurisdiction’. ¹⁰³ This obligation exists at two levels. First, there is the primary duty to provide effective regulation to safeguard life, backed up by law-enforcement and judicial machinery. Such regulation entails effective criminal law provisions safeguarding human life, as well as regulations compelling health care institutions to adopt appropriate measures for the protection of patients’ lives. ¹⁰⁴ In the assisted dying context, this means that it is essential for the legal framework regulating choices to die to ensure effective protection for life. The types of safeguards highlighted in the previous section, required within jurisdictions that have legalised a form of assisted dying, fall within this regulatory level. At a second level, the positive obligation may also extend to the need for preventive operational measures to protect an individual whose life is at risk, specifically that state authorities must do all that could reasonably be expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge. ¹⁰⁵ This operational duty may have particular application to the current issue under discussion, in which specific, identifiable individuals feel forced to end their lives sooner than they desire due to the prohibition of assisted deaths within the United Kingdom. Whether this operational duty applies in this context depends upon a number of factors evident in the Court’s judgements.

One factor that appears to be of great significance in determining when the operational duty to save life arises is that of an assumption of responsibility on the part of the state or a public body. ¹⁰⁶ In the health care context, domestic courts have grappled with this issue in respect of mental health patients. ¹⁰⁷ In Rabone, Lord Dyson recognised that the ECtHR has in recent years expanded the circumstances in which the operational duty to save life is owed to include what may generally be described as ‘dangers for which in some way the state is responsible’. ¹⁰⁸ Lord Dyson concludes that: ‘The operational duty will be held to exist where there has been an assumption of responsibility by the state for the individual’s welfare and safety (including by the exercise of control)’. ¹⁰⁹ Lord Dyson argues that an ‘exercise of control’ is not always required in order to engage the Article 2 operational duty. He claims that in circumstances of sufficient vulnerability, the ECtHR has been prepared to find a breach of the operational duty in the absence of an exercise of control by the state. ¹¹⁰ This would seem to open the door to inclusion of individuals such as Mr Nicklinson and Mr Omid into the ambit of the Osman protective duty.

However, the second requirement for this principle is more challenging in this context, namely, that once the authorities know of a specific risk to life, they should take ‘reasonable’ measures to prevent it. This is where an argument under Article 2 may falter if an applicant is arguing that in order to prevent them taking their lives sooner, the Member State should permit assistance in ending their lives at some stage in the future. This will undoubtedly be an ethically challenging argument to make. Can the facilitation of an easier death in the future really be said to be a reasonable measure to prevent a more immediate death? Recent domestic cases have emphasised the relevance of the nature of the risk to life in determining the duties of the Member State. For example, in R (Morahan) v West London Assistant Coroner, ¹¹¹ Popplewell LJ stated that the existence of the operational duty ‘is not to be analysed solely by reference to the relationship between the Member State and the individual, but also, and importantly, by reference to the type of harm of which the individual is foreseeably at real and immediate risk. This follows from the operational duty to protect life having the unifying feature of being one of state responsibility, and the need to focus on the scope of the duty which may be owed’. ¹¹² It is important therefore that the risk to life be connected in some manner to the assumption of responsibility for life by the state. It might be argued that in taking legislative steps to prohibit assistance in dying, the state has assumed responsibility for prolonging the life of those who face additional challenges in taking their own lives, and that a heightened risk of those individuals ending their own lives prematurely by measures such as refusal of food might be a risk connected to the state’s responsibility. A comparison could be drawn with the Rabone case in which it seemed to be regarded as pertinent that the Member State only assumed responsibility for the voluntary mental health patient in this case because of the existence of a risk of suicide. As the patient was admitted to hospital specifically because of concerns that she would try to take her own life, this factor supported the application of an operational duty in the case, and ultimately the finding of a violation of Article 2 when, despite the initial hospital admission, the patient was not prevented from attempting suicide. Thus, in Rabone, the state assumed responsibility for the woman because she was at risk from suicide and then failed to protect her from that very risk. In the context of a case such as Nicklinson or Omid, the state has prohibited any assistance in ending the life of the patient but in doing so its legislative framework actively encourages an earlier ending of life, running directly counter to the state’s efforts to respect the lives of those with terminal or long-term debilitating illnesses. Such a risk to life connected to the (legislative) action of the state might be argued to be the type to which a vulnerable individual can legitimately expect the state to take reasonable steps to prevent. This is where we identify a conflict within Article 2: on the one, protecting the lives of those who may be at risk by the availability of the option, and on the other, protecting the lives of those who may choose to take their lives earlier than planned because of the unavailability of the option domestically.

This argument is further supported by evidence that the prohibition of assisted dying does not effectively prevent many individuals within the United Kingdom from choosing to end their lives in ‘amateur ways’ themselves or with some non-professional assistance. Examples include, in 2016, the story of an 81-year-old retired academic. ¹¹³ The woman, who was a member of EXIT International, ended her life alone at home using ‘a euthanasia kit’ which she ordered online. She was suffering from several painful, debilitating, and incurable conditions, and was described as ‘knowing her own mind’, ‘bright and intelligent’. A similar story was reported a year later, of a pensioner ending his life alone in his garage at home. ¹¹⁴ These cases can be distinguished from ‘conventional suicides’ as aspects of the cases seem to indicate that a third-party involvement may have been the individual’s preference, such as the use of ‘a euthanasia kit’, or the membership to a euthanasia organisation. The availability of the option of a regulated assisted death would mean that people who wish to pursue that route do not have to die alone and away from medical and legal safeguards. ‘A safe offering’ of the choice, as we examined earlier, is essential under the ECtHR jurisprudence. In addition, there is evidence that the prohibition of assisted dying in the United Kingdom does not prevent many individuals travelling to Switzerland, ¹¹⁵ including some doing so earlier than planned, such as the case of Mr Omid T. ¹¹⁶ There are also suggestions that some people may die by means of refusing nutrition (‘voluntary stopping eating and drinking’), due to the prohibition on assisted dying, such as Mr Nicklinson or Mrs Purdy. ¹¹⁷

Thus, rather than preventing premature deaths, the prohibition of assisted dying in England and Wales pushes some people into undesired methods of dying, whether that is earlier than planned, or alone, or far from home. Covert, unregulated assisted deaths should not be preferred over a regulated framework with eligibility criteria and legal and procedural safeguards. ¹¹⁸ A framework will offer, principally, an assessment of capacity and voluntariness, in favour of autonomy and choice. Article 2 has been used in this way in Canada. The CSC in Carter confirmed Smith J’s summary trial ¹¹⁹ that the right to life was engaged insofar as the prohibition could force a person to take her life earlier than she otherwise would if she had access to a physician-assisted death in Canada; ‘the right to life is engaged where the law or state action imposes death or an increased risk of death on a person, either directly or indirectly’. ¹²⁰ There is strength in the ‘extending life’ argument in that, the unavailability of a regulatory framework for assisted deaths could potentially breach state positive obligations under Article 2, and this should prompt Member States who do not currently regulate forms of assisted deaths to create safe, inclusive frameworks offering this option. This is not only the case for the United Kingdom, but also other Member States that do not currently permit forms of assisted death.

The proposition that some individuals, because of the unavailability of a regulatory framework on assisted death, may decide to end their lives earlier than planned fearing physical or mental incapacity, seeking alternatives or travelling abroad earlier than planned, goes to the very essence of the argument of this article. There is a need for a balancing exercise not only between the right to self-determination (choosing the manner and timing of one’s death) under Article 8 and the right to life (Article 2) and indeed between Article 8 and Article 8(2), but within Article 2 itself in the interests of both the individual who may be ‘at risk’ by the availability of an option of an assisted death, and the individual ‘at risk’ from its absence. We argue that Members States which do not currently regulate forms of assisted death should consider whether the lack of such framework, far from being required under Article 2, may actually place them in breach of their positive obligations under that Article. It may be counter-intuitive, but there is a sound argument, and one likely to be the subject of future judicial consideration, that a carefully regulated form of assisted death may be a vital means of protecting and even extending life in certain circumstances.

Conclusion

Article 2 has a lot to offer in the context of assisted dying, its regulation and practice, both in jurisdictions with existing regulatory frameworks and jurisdictions without. Our article first noted that although the provision is unsuited for use as a right to die or a right to self-determination, it is wrongly, and very narrowly perceived as only concerning the sanctity of life, and this is supported by our analysis in the rest of the article. Even its ‘prohibitive use’ under its orthodox interpretation against any ‘intentional deprivation of life’ still allows Member States to regulate if they have in place a safe, carefully drafted framework.

Then the cases of Haas and Mortier remind us that the ECtHR perceives the practice of the law as just as important as the law itself, and that without the right substantive and procedural safeguards, it remains possible for a regulatory framework on assisted dying, or a particular aspect of it, as was the case in Mortier, to violate the ECHR’s protection for the right to life. The flip side of this argument, what we called the ‘safeguarding’ use of Article 2, thus reveals a crucial role for the provision; it demands that the offering of this choice by Member States is done to a sufficient standard to ensure autonomy is respected also under Article 2. The choice can be offered safely, with the ECtHR ensuring that high standards shaped any law before, during, and after the assistance.

Furthermore, we note that because of the lack of regulatory frameworks in certain jurisdictions, some individuals choose to end their lives earlier than planned for fear of physical or mental decay and while physically and emotionally still able to travel abroad. Furthermore, assisted deaths already take place in jurisdictions such as the United Kingdom despite the domestic prohibitions, and may be subject to abuse in the absence of a regulatory framework. We argue that the United Kingdom, and other Member States across the Council of Europe that do not regulate forms of assisted death, should reflect on whether the unavailability of this option puts them in breach of their positive obligations under the provision. As we note, a carefully drafted regulatory framework may not just ‘safeguard’ life but may also be seen as ‘extending’ life.

With this article, we wish to highlight the crucial role Article 2 still plays in the debate on assisted dying. We think this is essential because all too often the significance of the right to life in this context is underestimated or overly simplified. With the introduction of a legal and procedural framework regulating, but not completely decriminalising, forms of assisted death, Member States which do not currently offer the choice, such as the United Kingdom, could sustain their commitment to life under Article 2, but at the same time respect the rights of those who may need to control the timing of their deaths, not only by removing the pressure to end lives prematurely but also by ensuring that appropriate safeguards are in place if these individuals choose this option. A less restrictive approach to the absolute prohibition of assisted suicide and VAE in the United Kingdom (and elsewhere) is possible and could achieve the same objectives as the current legal position. Individuals at risk may still be protected while allowing those individuals that fulfil the criteria of a future framework to access an assisted death, thereby ensuring the right to life is given meaning for all.