Walking the Legal Tightrope: Why European Courts Should Legalise Assisted Suicide

Human rights can be viewed as a fundamental consensus with regard to rights and freedoms. These rights and freedoms are applicable to every individual and represent shared values, morals and principles. The European Convention on Human Rights (ECHR) exists to uphold and safeguard these essential rights and freedoms. Chiefly among these rights, the right to life, found in Article 2 of the Convention, provides that “Everyone’s right to life shall be protected by law.”

Interestingly, the right to life has also been described as the “most important interest at stake in the debate involving assisted death” (Mendelson, 2013). Pretty v United Kingdom (2002) was the first case before the ECHR to consider assisted suicide for terminally ill patients, where the question posed to the Court was simply whether the Convention conveys to mentally competent individuals, the “freedom to commit suicide, and consequently the impunity of an individual who might provide assistance to that end.” Ultimately, the Court held in Pretty that “Article 2 cannot, without a distortion of language, be interpreted as conferring… a right to die” (2002), and hence rejected the claim primarily on the grounds that it was a state’s duty to protect human life. Due to the seemingly unambiguous decision of the ECHR, Pretty remains, to date, the last attempt to establish a right to assisted suicide grounded in the right to life as per Article 2 of the Convention (Palmer, 2016).

However, Article 2 was once again advanced in Lambert and Others v France (2015), wherein palliative care served as the focal point rather than assisted suicide. The applicants primarily contended that the State could not allow the withdrawal of a patient’s nutrition and hydration, as part of its obligations under Article 2 to protect the right to life. As with many decisions before, the ECHR held that broad discretion must be given to member states in shaping legislation on life and death issues (2015). In response to the challenge brought in view of Article 2, the Court applied three rules to assess whether the state’s positive obligation to protect life was violated. First, the Court must determine if a functional regulatory framework exists; second, the Court must take into account the wishes of the individual in combination with the opinions of medical professionals; third, the Court must consider if said functional regulatory framework permits recourse in the case of doubts about whether the patient’s interests were being served. In the end, no violation of Article 2 under the Convention was found – it was determined that the French Act, as interpreted by the Conseil d’Etat, did not lack clarity and provided safeguards (Lebret, 2019). Therefore, the assessment criteria were met: the French domestic laws allowing the suspension of treatment with the possibility of death were consistent with the provisions of the Convention.

Considering the, at best, tangential relation between Lambert and Pretty, it is unsurprising that in the eyes of the ECHR, Lambert does not directly affirm a right to assisted suicide under Article 2. However, there remains remarkable similarities between the assessment advanced by the ECHR in Lambert, and the regulatory framework for euthanasia adopted within the Benelux Union, when Dutch courts came to the conclusion that “a patient’s life does not always need to be prolonged if doing so would only lead to unnecessary and purposeless suffering” (1973). The framework outlined in Lambert appears to provide a model for an effective system for assisted suicide (Cohen, 2018). This regulatory structure, characterised by clear rules and robust review processes, encompasses the patient's preferences and empowers families to safeguard the patient's best interests through judicial oversight. By addressing these key elements, the framework mitigates many criticisms surrounding the right to assisted suicide; individuals are thusly granted the autonomy to make decisions about the timing and manner of their death with confidence that their wishes will be honoured, supported by procedural safeguards. With an established juridical method serving as precedent, it is foreseeable that the Court may, in future, be willing to recognize a right to assisted suicide under a similar framework.

Additionally, calling attention to the decision in Carter v Canada. (2015) may help the ECHR revise its position to declare that current prohibitions against assisted suicide are a violation of the rights enshrined in the Convention. In the case, it was argued that having to renounce all control over the means and timing of one’s own death infringed upon one’s right to life. This argument found favour with the Supreme Court of Canada (SCC) as it stated that “a prohibition on assisted suicide would create a duty to live and such a duty would be inconsistent with the legality of consenting to the withdrawal or refusal of life sustaining treatment”. The recognition of this argument by the SCC represented a reversal of supposedly final judicial decisions (Rodriguez v British Columbia. 1993).

Criminalising assisted suicide appears to have its roots in a failure to properly and fully understand the gravamen of the desperation felt by terminally ill persons who desire to die (Bagaric, 2013). Insisting on thorough litigation may paradoxically be unjust treatment, as a long legal procedure would likely render the patient death in the exact manner he wished to avoid. When a judicial procedure can only add to the horror of the patient, the Court should perhaps forgo decision making in the first place (Campbell, 2008). When we can find legitimate and compelling reasons for assisted suicide, leaving the decision to the patient and the doctor, as embodied in Canadian policy, seems just — the obligation to carefully report the proceedings to be examined by medical committees functions as a control to potential malpractices. Ultimately, while suicide remains undesirable from a state perspective, the energy and resources allocated to developing protocols, systems and institutional practices directed towards prosecuting assisted dying would almost certainly be better (and more humanely) devoted to implementing measures that negate the desire for self-destruction in individuals without terminal illness.

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