By Hashi Mohamed

Late last month the Supreme Court of the UK handed down a judgment on the cases of two severely disabled men who want other people to help them to die.[1]

Over the years the issue of the right to die has stirred some fierce and sometimes emotional public debate. Although it affects relatively few people, it is a topic which has ignited a much needed discussion. For legal purposes, the Supreme Court has now taken a definitive view on the issue, and in particular whether the specific law prohibiting suicide is incompatible with the European Convention on Human Rights (ECHR). The basic argument being considered was whether individuals should not be denied the moment of their choosing to die.

Part of this specific case before the UK’s highest court involved Mr Paul Lamb who was paralysed in a road crash, and that of the late Tony Nicklinson, who suffered from ‘locked-in syndrome’. The wider context of this case, however, is much more profound. At a time when we are living longer as a population or are able to ‘live’ with severe disabilities, when advanced medicine and technology are keeping us alive for periods never contemplated before; it does not necessarily mean that the quality of life is improving.

Increasingly, therefore, there are those who feel that because of the severity of their disability, and the effects it has on the quality of life, they should be allowed to seek assistance to help end their lives. The key point was about whether being prohibited from doing so amounts to an interference of private and family life under the ECHR. Currently any such assistance amounts to a criminal offence, carrying a 14 year prison sentence.

Legal (and moral?) Journey

The process that brought this case to the Supreme Court is interesting. In Mr Nicklinson’s case, he became paralysed when on a business trip in 2005. After losing a High Court battle in 2013 he refused to eat and died naturally at home. The High Court was of the view that this was a matter of Parliament, not judges. His widow continued the case to the Court of Appeal.

The case in the Court of Appeal was similarly fascinating. There the analysis focused on the role of the courts in this area. Indeed whether the law on assisted dying is a matter in which judicial intervention is appropriate, or whether this is an area ripe for Parliamentary intervention.  At paragraph 60 of the July 2013 Court of Appeal judgment, their Lordships had the following to say:

“…Parliament as the conscience of the nation is the appropriate constitutional forum, not judges who might be influenced by their own particular moral perspectives; the judicial process which has to focus on the particular facts and circumstances before the court is not one which is suited to enabling the judges to deal competently with the range of conflicting considerations and procedural requirements which a proper regulation of the field may require; and there is a danger that any particular judicial decision, influenced perhaps by particular sympathy for an individual claimant, may have unforeseen consequences, creating an unfortunate precedent binding in other contexts…”

It is clear from this analysis that while their Lordships may have been sympathetic to the particular individuals concerned, they were clearly cognisant of the potential ramifications of their ruling. To that end, they were of the view that the court was simply not equipped nor was it appropriate for it to ‘deal competently with the range of conflicting considerations.’

What are those conflicting considerations?

Even for those who are severely disabled, and who one might naturally think are sympathetic to assisted dying, have serious reservations. They say that any changes must offer clear guidance on what might or might not be included in the steps that lead to seeking assistance. Many fear the prospect of the physicians who have been taking care of them for some time being ready overnight to assist in their deaths. The concern being that it leads to a process that has not been thought through, and what of the doctors who do not wish to assist?

At the heart of these concerns is perhaps the reliance, more about morality than law, of severely disabled people on others, and in particular family members and doctors.

Those on the other side of the debate say assisted suicide is often misunderstood. For many who are either suffering themselves or who have witnessed the suffering of loved ones first hand, it is less about the act of ending lives early and really more about choices. Giving people the choice of deciding whether the quality of life they lead is worth it, and whether, ultimately, their wishes will be fulfilled.

And so it came to the Supreme Court.[2] A mark of how important this case is, nine judges sat to hear it with a majority of seven to two dismissing the appeal brought by Mr Nicklinson and Mr Lamb. Each of the nine Justices gave a judgment. Noteworthy was key acknowledgment by their Lordships at [76] that, whilst they had the jurisdiction to declare incompatibility, in this particular instance they declined to exercise it:

“In these circumstances, given that the Strasbourg court has held that it is for each state to consider how to reconcile, or to balance, the article 8.1 rights of a person who wants assistance in dying with “the protection of … morals” and “the protection of the rights and freedoms of others”, I conclude that, even under our constitutional settlement, which acknowledges parliamentary supremacy and has no written constitution, it is, in principle, open to a domestic court to consider whether section 2 infringes article 8. The more difficult question, to which I now turn, is whether we should do so.”

In the final analysis, the Supreme Court gave clear reasons for its refusal:

“There are a number of reasons which, when taken together, persuade me that it would be institutionally inappropriate at this juncture for a court to declare that section 2 is incompatible with article 8, as opposed to giving Parliament the opportunity to consider the position without a declaration. First, the question whether the provisions of section 2 should be modified raises a difficult, controversial and sensitive issue, with moral and religious dimensions, which undoubtedly justifies a relatively cautious approach from the courts. Secondly, this is not a case like Re G where the incompatibility is simple to identify and simple to cure: whether, and if so how, to amend section 2 would require much anxious consideration from the legislature; this also suggests that the courts should, as it were, take matters relatively slowly. Thirdly, section 2 has, as mentioned above, been considered on a number of occasions in Parliament, and it is currently due to be debated in the House of Lords in the near future; so this is a case where the legislature is and has been actively considering the issue. Fourthly, less than thirteen years ago, the House of Lords in Pretty v DPP gave Parliament to understand that a declaration of incompatibility in relation to section 2 would be inappropriate, a view reinforced by the conclusions reached by the Divisional Court and the Court of Appeal in this case: a declaration of incompatibility on this appeal would represent an unheralded volte-face.”

[Emphasis added]

Time for Reform?

The highest court in the land’s conclusions could not be clearer: this was a case ripe for Parliamentary intervention. Whilst the majority of their Lordships considered it would be inappropriate to issue a ruling of incompatibility, Lord Kerr and Lady Hale said they would have issued a declaration of incompatibility.

Indeed it was held that the ‘question requires a judgment about the relative importance of the right to commit suicide and the right of the vulnerable, especially the old and sick, to be protected from direct or indirect pressure to do so. It is unlikely that the risk of such pressure can ever be wholly eliminated. Therefore the real question is how much risk to the vulnerable is acceptable in order to facilitate suicide by others who are free of such pressure or more resistant to it. This involves important elements of social policy and a moral value-judgment, which are inherently more suitable for decision by Parliament as the representative organ of the constitution.’ [3]

With that background, Lord Falconer’s Bill[4] on ‘assisted dying’ is scheduled for debate in the House of Lords in the next few weeks. The bill crucially applies to the terminally ill and mentally competent adults. It requires the dying patient, after meeting strict legal safeguards, to self-administer life-ending medication.

The debate around this sensitive issue therefore continues, both in Parliament and out in wider society. The questions of morality and law continue to interact in ways perhaps never previously appreciated, and as their Lordships’ judgment make clear, there are no easy answers. It will be interesting to follow what is said in the Parliamentary debates, and what influence, if any, the considered remarks by their Lordships in the Supreme Court will have in whatever law comes to pass.

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[1] R (on the application of Nicklinson and another) (Appellants) v Ministry of Justice (Respondent); R (on the application of AM) (AP) (Respondent) v The Director of Public Prosecutions (Appellant) [2014] UKSC 38 – On appeal from [2013] EWCA Civ 961