The Right to Die (2)
New Law Journal, Vol 152, May 2002
The facts of Mrs Pretty's case are now too well known to warrant repeating in any detail. Suffice it to say that she is a 43 year old sufferer of neurone's disease who has recently argued unsuccessfully in the English Courts that her husband should be immune from prosecution should she request his assistance in her suicide at some point in the future. Her case has now been rejected by the European Court of Human Rights in Strasbourg. Mrs Pretty, who is prevented by her disease from ending her own life without assistance, still remains at risk of exposing her husband to a criminal prosecution under Section 2 of the Suicide Act 1961 should she rely on him for help.
The only surprising aspect of this deeply predictable judgment from Strasbourg is the unanimity with which it was reached. Not a single member of the panel had the imagination and foresight to take a view on the relevance of the Convention to contemporary and future medical treatment which allows for the indefinite prolongation of life, however damaged. Such dissents may emerge from the full court, should the applicant be successful in requesting a reference.
I have expressed my opinion on the autonomy issue raised by this case in a previous article ("No Rights to Last Rites") so instead the focus of this piece will be on the structural aspects of this litigation, which is unique in the sense that the Strasbourg Court has for the first time considered a complaint that has already been adjudicated in national courts under the Human Rights Act.
Some 14 paragraphs – the first twenty pages and nearly half of the ruling - are given over to a reproduction of Lord Bingham's judgment in the House of Lords hearing. Whilst the Strasbourg Court is usually at pains to set out in some detail domestic law relating to the issues before it, such extensive quotation from a national court is rare. Indeed a cynic might suggest this is an exercise in judicial buckpassing. The Court also quotes extensively from the 1994 report of the House of Lords Select Committee on Medical Ethics (HL Paper 21-I). After this follows a verbatim reproduction of sections from the Recommendation 1418 (1999) of the Parliamentary Assembly of the Council of Europe, notwithstanding that these paragraphs have already been reproduced as part of Bingham's speech.
The collage of judicial styles also produces some interesting anomalies. Referring to Pretty's argument that the wholesale ban on assisted suicide was a disproportionate response to the small risk that the infirm and elderly might face at the hands of greedy relatives, Bingham says:
"Dr Johnson gave two answers of enduring validity to it. First, 'Laws are not made for particular cases but for men in general.' Second, 'To permit a law to be modified at discretion is to leave the community without law. It is to withdraw the direction of that public wisdom by which the deficiencies of private understanding are to be supplied' (Boswell, Life of Johnson, Oxford Standard Authors, 3rd ed, 1970, at pp 735, 496).
Embedded in the stark contemporary prose of Strasbourg ajudication, Bingham's reference to Boswell seems a little quaint, which it does not in the original judgment. When served up again it seems less lucid than emotionally satisfying, and it does show that whilst we rather relish the thought of the English judiciary dusting off eighteenth centry classics for a bit of ancient support for their rulings, such a gesture would be unacceptable in Strasbourg. The Convention is meant to be a living instrument; in the Court's own words, it "must take a dynamic and flexible approach to the interpretation of the Convention." (paragraph 54)
The first original reflection the Court has to make on the controversial issues evoked by this case does not come until page 36 of the judgment towards the end, which is worth quoting in full:
"65. The very essence of the Convention is respect for human dignity and human freedom. Without in any way negating the principle of sanctity of life protected under the Convention, the Court considers that it is under Article 8 that notions of the quality of life take on significance. In an era of growing medical sophistication combined with longer life expectancies, many people are concerned that they should not be forced to linger on in old age or in states of advanced physical or mental decrepitude which conflict with strongly held ideas of self and personal identity."
This is the first time that the Court departs from the domestic court's view of the matter, since it will be remembered that the House of Lords by a majority excluded the possibility that the blanket ban on assisted suicide might constitute an inteference with Pretty's right to respect for private life. The Strasbourg Court concluded, predictably enough, that this interference conformed with the requirements of the second paragraph of Article 8, because States should be entitled to regulate through the operation of the general criminal law activities which are detrimental to the life and safety of other individuals, and Section 2(1) of the Suicide Act was not therefore disproportionate. It accepted the government's argument that flexibility was provided for in individual cases by the fact that consent is needed from the DPP to bring a prosecution and by the fact that a maximum sentence is provided, allowing lesser penalties to be imposed as appropriate. This, one might think, is cold comfort for victims deciding to depart this life with the assistance of their relatives; after all they will not be around to ascertain that prosecution proceedings have not been initiated.
In any event in deciding that Article 8 was engaged the Court had to allow Article 14 into the frame (because the right to enjoy Convention rights without discrimination is parasitic on those other Convention rights). This then forced the issue as to whether there was an objective and reasonable justification for not distinguishing in law between those who are and those who are not physically capable of committing suicide.
Referring to its own finding under Article 8 that there were sound reasons for not introducing into the law exceptions to cater for those who are deemed not to be vulnerable, the Court felt that similarly cogent reasons exist under Article 14 for not seeking to distinguish between those who are able and those who are unable to commit suicide unaided. "The borderline between the two categories will often be a very fine one and to seek to build into the law an exemption for those judged to be incapable of committing suicide would seriously undermine the protection of life which the 1961 Act was intended to safeguard and greatly increase the risk of abuse." Article 14 was not therefore breached.
Nevertheless, the admission by the Court that Diane Pretty's Article 8 rights is some occasion for gladness, despite her lack of success overall. Indeed in consitutional terms this small difference of opinion between the House of Lords and the Strasbourg Court will provide fertile ground for future litigation under this Article. Whilst national courts are not bound by Strasbourg judgments, they are enjoined by the Human Rights Act to take them "into account". Does this somewhat flexible injunction apply where Strasbourg reaches a different opinion on a case already pronounced upon by the House of Lords? If a future litigant has a similar claim to Diane Pretty's under Article 8 but in different circumstances should the first instance court follow the Strasbourg line on Article 8, or is it bound by the House of Lords?
Normally of course the House of Lords' judgment would be binding on all lower courts, so such a question would not arise. But the role of Section 2 of the Human Rights Act complicates matters. It creates a delicate bridge between Strasbourg and national courts which would be undermined should the ordinary rules of precedent continue to apply, and therefore a future court would probably be free to choose between the Strasbourg view and the House of Lords view. Indeed, absent some new argument, the later English domestic court would invariably follow Strasbourg – not least of all because the House of Lords arrived at their decision on Article 8 without the benefit of the view of the Strasbourg Court. But all this is a matter of speculation; there is no clear cut rule to follow, unlike Section 3 of the European Communities Act 1972, which provides that the case law of the European Court of Justice should be binding on all courts and tribunals in the United Kingdom.
"For the purpose of all legal proceedings any question as to the effect of any of the Treaties or as to the validity, meaning or effect of any Community instrument, shall be treated as a question of law (and, if not referred to the European Court, be treated for determination as such in accordance with the principles laid down by and by any relevant decision [of the European Court of Justice…]"
Returning to this particular judgment there is another point worth making about the precedent value of Strasbourg rulings. In paragraph 75 the Court deals with the argument advanced by counsel for Diane Pretty, that a finding in this case would not create a general precedent or any risk to others.
"It is true that it is not this Court's role under Article 34 of the Convention to issue opinions in the abstract but to appply the Convention to the concrete facts of the individual case. However, judgments issued in individual cases establish precedents albeit to a greater or lesser extent and a decision in this case could not, either in theory or practice, be framed in such a way as to prevent application in later cases."
The Court clearly wishes to steer a cautious line in a controversial matter such as this, where its (highly publicised) ajudication may create a precedent. But equally it is reluctant to be restricted to this cautious approach when an easier case requires it to depart from the position it has adopted. Now, by declaring that Articles 2, 3 and 9 are not engaged at all the Strasbourg judges have shut down a number of potential arguments under the Convention that might be advanced in the future. This no doubt will come back to haunt them and it will be interesting to see whether the Court will be consistent with this ruling and reject as inadmissible, for example, an argument that an applicant has suffered an infringement of their right to freedom of conscience when the state's predominantly Christian proprieties interfere with their wish to undergo life's rituals in a humanist fashion. In such a case will the Court follow Pretty – in which it has said that claims that do not "involve a form of manifestation of a religion or a belief" are outside the scope of Article 9 – or Kokinnakis v Greece (1993) 17 EHRR 397, where it declared at paragraph 31 that the freedom of thought, conscience and religion was "in its religious imension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned".
I promised at the outset of this article not to return to the merits of this case which have already been comprehensively debated elsewhere. However there is one final point to be made, and that concerns the relationship between Diane Pretty's arguments and those relied upon (successfully) by Patient B in support of her wish to have her life support unit switched off (Ms B v. an NHS Hospital, 22 March 2002). There has been a conspiracy of silence about the obvious parallels between these two judgments. Clearly it would have been disastrous for Patient B had any link been drawn between her case and Diane Pretty's and indeed no such links were made in the final ruling by the President of the Family Division . The Strasbourg Court hardly mentions it (apart from referring to it briefly at para 18). However these two sorry sagas are based on much the same principle; that individuals should have a right to choose the way that they die. On the one hand you have an individual whose quality of life is poor, but stable. Patient B, though paralysed from the neck down, was lucid and able to communicate. Her quality of life was not about to degenerate in the near future. Diane Pretty on the other hand faces a painful and humiliating decline into the grave. It is obvious, when put like this, who has the greater right to choose the time and manner of her death.
The failure to give any proper attention to the parallels between Patient B and Pretty is doubly saddening, first, because the question of autonomy is riven with ambiguities and complexities that need analysis; and second because both cases represent a unique opportunity to examine Convention rights in the light of advances in modern medicine. We should constantly remind ourselves that much of what we see as "natural" today was unimaginable when the Convention was drafted and for that very reason the overwheening nature of the sanctity of life principle should be questioned from time to time.