#1731 - Pretty V Uk - Medical Law

Pretty v UK [2002] 2 FLR 45

House of Lords and the European Court of Human Rights

Facts

P suffered from motor neurone disease, a disease associated with progressive muscle weakness affecting the voluntary muscles of the body. Death usually occurred as a result of weakness of the breathing muscles, in association with weakness of the muscles controlling speaking and swallowing, leading to respiratory failure and pneumonia. No treatment was available to prevent the progression of the disease. P’s life expectancy was poor. In order to avoid the extremely distressing and undignified final stages of the disease and to be able to control how and when she was to die, the applicant wanted her husband to assist her to commit suicide.

Held Lord Bingham (HoL)

• Is a right engaged under Art 2?

  • The starting point must be the language of the article. The thrust of this is to reflect the sanctity which, particularly in western eyes, attaches to life.

    • The article protects the right to life and prevents the deliberate taking of life save in very narrowly defined circumstances.

      • An article with that effect cannot be interpreted as conferring a right to die or to enlist the aid of another in bringing about one's own death

  • While right claimed being limited to covering assisted suicide, there is in logic no justification for drawing a line at this point.

    • If Article 2 does confer a right to self-determination in relation to life and death, and if a person were so gravely disabled as to be unable to perform any act whatever to cause his or her own death,

      • it would necessarily follow in logic that such a person would have a right to be killed at the hands of a third party without giving any help to the third party

      • and the state would be in breach of the Convention if it were to interfere with the exercise of that right.

        • No such right can possibly be derived from an article having the object already defined

    • Some rights can give an opposite conclusion – so Art 9 protects the right not to join an association

      • However, it cannot however be suggested that Articles 3, 4, 5 and 6 confer an implied right to do or experience the opposite of that which the articles guarantee.

        • Whatever the benefits which, in the view of many, attach to voluntary euthanasia, suicide, physician-assisted suicide and suicide assisted without the intervention of a physician,

          • these are not benefits which derive protection from an article framed to protect the sanctity of life

• Is a right engaged under Art 3

  • Article 3 enshrines one of the fundamental values of democratic societies and its prohibition of the proscribed treatment is absolute

    • Article 3 is, as I think complementary to Article 2 . As Article 2 requires states to respect and safeguard the lives of individuals within their jurisdiction, so Article 3 obliges them to respect the physical and human integrity of such individuals

      • There is in my opinion nothing in Article 3 which bears on an individual's right to live or to choose not to live

      • Moreover, the absolute and unqualified prohibition on a Member State inflicting the proscribed treatment requires that “treatment” should not be given an unrestricted or extravagant meaning. It cannot, in my opinion, be plausibly suggested that the Director or any other agent of the United Kingdom is inflicting the proscribed treatment on Mrs Pretty, whose suffering derives from her cruel disease

  • It might be engaged if a public official had forbidden the provision to Pty of pain-killing or palliative drugs.

    • But here the proscribed treatment is said to be the Director's refusal of proleptic immunity from prosecution to Mr P if he commits a crime.

    • By no legitimate process of interpretation can that refusal be held to fall within the negative prohibition of Article 3

• Art 8?

  • It is evident that all save one of the judges of the Canadian Supreme Court were willing to recognise section 7 of the Canadian charter as conferring a right to personal autonomy extending even to decisions on life and death

    • However, Article 8 contains no reference to personal liberty or security. It is directed to the protection of privacy, including the protection of physical and psychological integrity:

      • But Article 8 is expressed in terms directed to protection of personal autonomy while individuals are living their lives,

      • and there is nothing to suggest that the article has reference to the choice to live no longer.

  • However, if the rights are engaged, the restriction is justified

    • It is not hard to imagine that an elderly person, in the absence of any pressure, might opt for a premature end to life if that were available, not from a desire to die or a willingness to stop living, but from a desire to stop being a burden to others

    • There is also broad international consenus on the issue, about from the Netherlands, but even there a physician must perform the procedure, not a relative.

• Art 14?

  • If any convention right is engaged, contrary to my conclusions

    • She contends that the section is discriminatory because it prevents the disabled, but not the able-bodied, exercising their right to commit suicide.

    • This argument is in my opinion based on a misconception. The law confers no right to commit suicide.

      • Suicide was always, as a crime, anomalous, since it was the only crime with which no defendant could ever be charged.

      • The main effect of the criminalisation of suicide was to penalise those who attempted to take their own lives and failed, and secondary parties.

  • Suicide itself (and with it attempted suicide) was decriminalised because recognition of the common law offence was not thought to act as a deterrent,

    • because it cast an unwarranted stigma on innocent members of the suicide's family

    • and because it led to the distasteful result that patients recovering in hospital from a failed suicide attempt were prosecuted, in effect, for their lack of success.

      • But while the 1961 Act abrogated the rule of law whereby it was a crime for a person to commit (or attempt to commit) suicide, it conferred no right on anyone to do so.

        • Had that been its object there would have been no justification for penalising by a potentially very long term of imprisonment for aiding and abetting it

    • The criminal law cannot in any event be criticised as objectionably discriminatory because it applies to all.

      • Although in some instances criminal statutes recognise exceptions based on youth, the broad policy of the criminal law is to apply offence-creating provisions to all

        • and to give weight to personal circumstances either at the stage of considering whether or not to prosecute or, in the event of conviction, when penalty is to be considered

Lord Hope

• Respect for a person's “private life”, which is the only part of Article 8 which is in play here, relates to the way a person lives.

  • The way she chooses to pass the closing moments of her life is part of the act of living, and she has a right to ask that this too must be respected. In that respect Mrs Pretty has the right of self-determination.

    • In that sense, her private life is engaged even where in the face of terminal illness she seeks to choose death rather than life.

      • But it is an entirely different thing to imply into these words a positive obligation to give effect to her wish to end her own life by means of an assisted suicide.

      • I think that to do so would be to stretch the meaning of the words too far

European Court of Human Rights

• The Court's case law accords pre-eminence to Article 2 as one of the most fundamental provisions of the Convention. ⁸ It safeguards the right to life, without which enjoyment of any of the other rights and freedoms in the Convention is rendered nugatory

  • It sets out the limited circumstances when deprivation of life may be justified and the Court has applied a strict scrutiny when those exceptions have been invoked by respondent Governments

• The consistent emphasis in all the cases before the Court has been the obligation of the State to protect life.

  • The Court is not persuaded that “the right to life” guaranteed in Article 2 can be interpreted as involving a negative aspect.

    • While in the context of Article 11 of the Convention, the freedom of association was found to involve not only a right to join an association but a corresponding right not to be forced to join an association,

      • the Court observes that the notion of a freedom implies some measure of choice as to its exercise.

  • Article 2 of the Convention is phrased in different terms. It is unconcerned with issues to do with the quality of living or what a person chooses to do with his or her life.

    • Article 2 cannot, without a distortion of language, be interpreted as conferring the diametrically opposite right, namely a right to die;

    • nor can it create a right to self-determination in the sense of conferring on an individual the entitlement to choose death rather than life

• Art 3

  • The suffering which flows from naturally occurring illness, physical or mental, may be covered by Article 3 , where it is, or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible

    • In the present case, it is beyond dispute that the respondent Government has not, itself, inflicted any ill-treatment on the applicant. Nor is there any complaint that the applicant is not receiving adequate care from the State medical authorities

    • P’s claim that this must also include the right to assisted suicide places a...