Tag: assisted

Assisted Suicide Remains Unlawful (UKSC)

On 27 November 2018, in the case of R (on the application of Conway) Secretary of State for Justice [2018] UKSC B1, the UK Supreme Court refused to consider an appeal from the High Court (Divisional Court) where the Court had upheld the ban on assisted suicide as compatible with Article 8 of the European Convention on Human Rights. Assisted suicide remains illegal in the United Kingdom under the Suicide Act 1961, s2(1), despite numerous attempts to overturn the ban as in breach of the European Convention on Human Rights. In its short opinion, the Supreme Court relied on previous precedents from the European Court of Human Rights leaving the question of the so called ‘right to die’ for states to decide. As the decision was merely on the application for permission to appeal, the Claimant had to demonstrate only a ‘prospect of success’ upon a full hearing that would justify giving the permission. Nevertheless, the Court held “not without some reluctance […] that in this case those prospects are not sufficient to justify giving permission to appeal” (at para. 8).

Since the enactment of the Human Rights Act 1998, rendering the European Convention on Human Rights directly applicable in the United Kingdom, there have been several challenges to the Suicide Act 1961 as incompatible with the Convention. Most notably, in the case of Pretty v United Kingdom (2002) 35 EHRR 1, following a dismissal by the UK House of Lords, the European Court of Human Rights also ruled that Article 2 of the Convention could not be interpreted as containing any right to die. It was further held that although the ban on assisted suicide interfered with the right to private life under Article 8(1) of the Convention, it could be justified ‘for the protection of the rights of others’ under Article 8(2). 13 years later, a similar challenge was mounted in the case of Nicklinson v United Kingdom (2015) 61 EHRR SE7 but the European Court of Human Rights maintained its position from 2002 relying on a wide margin of appreciation states enjoyed on the question of assisted suicide. Interestingly, before the case reached the European Court of Human Rights, the UK Supreme Court (having succeeded the Appellate Committee of the House of Lords), had followed Pretty only 7-2, with Lady Hale and Lord Kerr dissenting. In her Dissenting Opinion, Lady Hale “reached the firm conclusion that [the] law [was] not compatible with the Convention rights […and…] little [was] to be gained, and much to be lost, by refraining from making a declaration of incompatibility.” (R (Nicklinson) v Ministry of Justice [2014] UKSC 38 at para. 300).

Paradoxically, Lady Hale and Lord Kerr, who were both willing to hold the ban on assisted suicide incompatible with the European Convention on Human Rights in 2014, constituted the majority of the Supreme Court panel (along with Lord Reed) refusing the permission to appeal in Conway. In fact, they were in the position to accept the case on behalf of the Court, even in the face of opposition of Lord Reed.

Withdrawal of Life-sustaining Treatment outside Courts’ Compulsory Jurisdiction

On 30 July 2018, the UK Supreme Court ruled, in the case of NHS Trust v Y (by his litigation friend, the Official Solicitor) [2018] UKSC 46, that not all decisions concerning a withdrawal of life-sustaining treatment require the Courts’ approval. Unlike euthanasia or assisted dying, neither of which is legal in the United Kingdom (Suicide Act 1961,s 2), a withdrawal of life-sustaining treatment from a patient in a vegetative state is treated as an omission (as opposed to an ‘act’) conducted in the best interest of the patient and therefore does not incur any criminal liability (Airedale NHS Trust v Bland [1993] 1 All ER 821 HL). Up until now, however, any such decision was believed to require a declaration from a Court, usually the Court of Protection, that the withdrawal of treatment resulting in death would be lawful. In its opinion, the UK Supreme Court concludes now that such a procedure is only required where there is no agreement between the doctors and the family as to the withdrawal of treatment but where such an agreement has already been reached, no separate approval from any Court is needed.

In the recent years, there have been several attempts to legalise assisted dying in the United Kingdom, both through legislation and various Courts’ cases. However, in the 2014 case of R (Nicklinson) v Ministry of Justice [2014] UKSC 38), the UK Supreme Court refused to recognise the right to assisted dying under Article 8 of the European Convention on Human Rights basing its decision on the 2002 ruling by the European Court of Human Rights in the case of Pretty v. United Kingdom (App. No.: 2346/02) and Lord Falconer’s Assisted Dying Bill was defeated in Parliament in 2015 (BBC). The decision in NHS Trust v Y does not change the status of assisted dying in the United Kingdom but it does remove most of life-death decisions from the immediate supervision of the Courts, at least where both the patient’s doctors and family members agree to withdraw the treatment. This decision should relieve the Courts from a considerable chunk of their workload in the area of medical treatment applications while at the same time reinforce the rights of family members of patients in a vegetative state by allowing them to make those critical decisions in the privacy of hospital rooms, without any state interference.