Pretty v United Kingdom
| Judgment Date | 29 April 2002 |
Criminal law – Suicide – Liability for complicity in another’s suicide – Claimant suffering from terminal disease and wishing to commit suicide – Claimant’s condition preventing her from committing suicide – Claimant seeking undertaking from DPP that husband would not be prosecuted if he assisted her to commit suicide – DPP refusing to give undertaking – Whether Human Rights Convention requiring state to legalise assisted suicide – Suicide Act 1961, s 2 – Human Rights Act 1998, Sch 1, Pt I, arts 2, 3, 8, 9, 14.
Privacy – Self-determination – Applicant suffering from incurable degenerative disease – Applicant facing distressing and undignified death through respiratory failure – Applicant prevented by disease from committing suicide without assistance – Applicant wishing husband to assist her to commit suicide – Assisting another to commit suicide being criminal offence – DPP refusing to give undertaking not to prosecute applicant’s husband – Whether right to self-determination encompassing right to choose when and how to die – Whether DPP’s refusal to give undertaking and blanket ban on assisted suicide interfering with right to private life – Whether interference justified – Human Rights Act 1998, Sch 1, Pt I, art 8.
The applicant suffered from an incurable, degenerative disease associated with progressive muscle weakness affecting the voluntary muscles of the body. Her condition was at an advanced stage and her life expectancy was very poor. She was essentially paralysed from the neck downwards, had virtually no decipherable speech and was fed by a tube but her intellect and capacity to make decisions were unimpaired. She was frightened and distressed at the suffering and indignity that she would endure if the disease ran its course and very strongly wished to be able to control how and when she died so that she would be spared that suffering and indignity. Although it was not a crime to commit suicide in English law, the applicant was prevented by her disease from taking such a step without assistance. It was, however, a crime to assist another to commit suicide. Intending that she might commit suicide with the assistance of her husband, the applicant’s solicitor asked the Director of Public Prosecutions to give an undertaking not to prosecute the applicant’s husband should he assist her to commit suicide in accordance with her wishes. The DPP refused to give the undertaking. The Divisional Court refused the applicant’s subsequent application for judicial review of the DPP’s decision, holding that the DPP did not have the power to give the undertaking not to prosecute and that the statutory prohibition on assisted suicide was not incompatible with the Convention. The House of Lords dismissed her appeal and upheld the judgment of the Divisional Court. She complained to the European Court of Human Rights that the refusal of the DPP to grant an immunity from prosecution to her
husband if he assisted her in committing suicide and the prohibition in domestic law on assisting suicide infringed her rights under arts 2, 3, 8, 9 and 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (the Convention).
Held – (1) The right to life guaranteed in art 2 could not be interpreted as involving a negative aspect. It was unconcerned with issues to do with the quality of living or what a person choose to do with her life and could not, without a distortion of language, be interpreted as conferring the diametrically opposite right, namely a right to die; nor could it create a right to self-determination in the sense of conferring on an individual the entitlement to choose death rather than life. Accordingly no right to die, whether at the hands of a third person or with the assistance of a public authority, could be derived from art 2. Moreover, even if circumstances prevailing in a particular country which permitted assisted suicide were found not to infringe art 2, that would not assist the applicant in the instant case, where the very different proposition—that the United Kingdom would be in breach of its obligations under art 2 if it did not allow assisted suicide—had not been established. It followed that there was no violation of art 2 (see paras 37–42, post).
(2) Article 3 had been most commonly applied in contexts in which the risk to the individual of being subjected to any of the proscribed forms of treatment emanated from intentionally inflicted acts of state agents or public authorities and could thus be described in general terms as imposing a primarily negative obligation on states to refrain from inflicting serious harm on persons within their jurisdiction. As regards the types of ‘treatment’ which fell within the scope of art 3, the case law referred to ‘ill-treatment’ that attained a minimum level of severity and involved actual bodily injury or intense physical or mental suffering. The suffering which flowed from naturally occurring illness, physical or mental, might be covered by art 3, where it was, or risked being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities could be held responsible. In the instant case, however, it was beyond dispute that the respondent government had not inflicted any ill-treatment on the applicant. Nor was there any complaint that the applicant was not receiving adequate care from the state medical authorities. Rather the applicant claimed that the refusal of the DPP to give an undertaking not to prosecute her husband if he assisted her to commit suicide and the criminal law prohibition on assisted suicide disclosed inhuman and degrading treatment for which the state was responsible as it would thereby be failing to protect her from the suffering which awaited her as her illness reached its ultimate stages. Such a claim placed a new and extended construction on the concept of treatment going beyond the ordinary meaning of the word. The positive obligation on the part of the state which was invoked in the instant case would not involve the removal or mitigation of harm by, for instance, preventing any ill-treatment by public bodies or private individuals or providing improved conditions or care. It would require the state to sanction actions intended to terminate life, an obligation that could not be derived from art 3. Accordingly, no positive obligation arose requiring the respondent government either to give an undertaking not to prosecute the applicant’s husband if he assisted her to commit suicide or to provide a lawful opportunity
for any other form of assisted suicide. It followed that there was no violation of art 3.(3) The concept of ‘private life’ was a broad term not susceptible to exhaustive definition. It covered the physical and psychological integrity of a person and could sometimes embrace aspects of an individual’s physical and social identity. Though no previous case had established as such any right to self-determination as being contained in art 8, the notion of personal autonomy was an important principle underlying the interpretation of its guarantees. In the sphere of medical treatment, the refusal to accept a particular treatment might, inevitably, lead to a fatal outcome, yet the imposition of medical treatment, without the consent of a mentally competent adult patient, would interfere with a person’s physical integrity in a manner capable of engaging the rights protected under art 8(1). In the instant case, though medical treatment was not an issue, the applicant was suffering from the devastating effects of a degenerative disease which would cause her condition to deteriorate further and increase her physical and mental suffering. She wished to mitigate that suffering by exercising a choice to end her life with the assistance of her husband. The very essence of the Convention was respect for human dignity and human freedom. Without in any way negating the principle of sanctity of life protected under the Convention, it was under art 8 that notions of the quality of life took on significance. The applicant was prevented by law from exercising her choice to avoid an undignified and distressing end to her life which potentially constituted an interference with her right to respect for private life. It followed that art 8 was engaged.
(4) An interference with the exercise of an art 8 right would be compatible with art 8(2) only if it was ‘in accordance with the law’, had a legitimate aim and was ‘necessary in a democratic society’ to achieve such aim. The only issue arising from the arguments of the parties in the instant case was the necessity of any interference, it being common ground that the restriction on assisted suicide was imposed by law and in pursuit of the legitimate aim of safeguarding life and thereby protecting the rights of others. The notion of necessity implied that the interference corresponded to a pressing social need and that it was proportionate to the legitimate aim pursued. States were entitled to regulate through the operation of the general criminal law activities which were detrimental to the life and safety of other individuals. The more serious the harm involved the more heavily would weigh in the balance considerations of public health and safety against the countervailing principle of personal autonomy. In the instant case the statutory prohibition on assisted suicide was designed to safeguard life by protecting the weak and vulnerable and especially those who were not in a condition to take informed decisions against acts intended to end life or to assist in ending life. Doubtless the condition of terminally ill individuals would vary but many would be vulnerable and it was the vulnerability of the class which provided the rationale for the law in question. It was primarily for states to assess the risk and the likely incidence of abuse if the general prohibition on assisted suicides were relaxed or if...
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