Conviction of doctor under assisted suicide prohibition not in breach of Convention
13 April 2022
The European Court of Human Rights has ruled that states have a broad margin of discretion in applying their criminal law to cases of assisted suicide. The applicant’s conviction may have constituted an interference with his rights, but that interference was prescribed by the Danish criminal law, which pursued the legitimate aims of the protection of health and morals and the rights of others. Denmark had not acted disproportionately by convicting him.
Law Pod UK recently ran an episode with former Court of Appeal judge Sir Stephen Sedley and Trevor Moore, the director of the campaign group My Death, My Decision, in which we dealt with this difficult subject in detail. Sir Stephen is a victim of Parkinson’s disease and his contribution to the debate is profoundly important. I have therefore quoted extensively from the article Sir Stephen wrote for the London Review of Books in October 2021, “A Decent Death”.
Those campaigning for a change in the law in this field object to the use of the word “euthanasia” and I have respected this position in the following case report. It should be noted at the outset that the applicant physician was a member of an association called “Physicians in Favour of Euthanasia”. This is the English translation. The Danish suggests something closer to “assisted dying”: ” Aktiv Dødshjælp”.
Background facts and law
The applicant, a retired physician, and member of an association in favour of assisted dying, was convicted of one count of attempted assisted suicide (count 1) and two counts of assisted suicide (counts 2 and 3) concerning three persons, A, B and C respectively, under Article 240 of the Danish Penal Code. He was sentenced to 60 days’ imprisonment, suspended. Maintaining that he had merely provided general advice about suicide, the applicant complained that his conviction was in breach of his right to provide information which is part of the right to freedom of expression under Article 10.
A had been in contact with the applicant, who had helped him obtain the required medication to end his life. But A survived his attempt.
B had become paralysed in most of his body following a stroke; he no longer found life worth living and wanted to die. He had tried to travel to Dignitas but no psychiatrist in Denmark would supply a certificate as to his mental preparedness, as required by the Swiss authorities. B therefore turned to the applicant’s organisation for help. He died after holding an informal “farewell” gathering.
C, an 85 year old woman, suffered from many infirmities but was not seriously ill. She wished to end her life and had procured the necessary pills herself. She was very frightened of the potential risk that she would fail, and she was nervous as to whether she would be able to go through with it on her own. She contacted the applicant who then passed on information from his association’s lawful guide on the website. C subsequently died.
It was not in dispute that the applicant’s conviction had constituted an interference with Article 10. But this interference was prescribed by law – section 240 of the Penal Code – which had pursued the legitimate aims of the protection of health and morals and the rights of others. The main question was whether or not the application of section 240 of the Penal Code in the applicant’s case had been “necessary in a democratic society”.
There was no support in the Court’s relevant case-law under Articles 2 and 8 for concluding that a right to assisted suicide existed under the Convention, including in the form of providing information about or assistance that went beyond providing general information about suicide. Accordingly, as the applicant had not been prosecuted for providing general information about suicide, including the guide on suicide that he had prepared and that had been made publicly available on the internet, but had been prosecuted for having assisted suicide through specific acts, the case was not about the applicant’s right to provide information that others under the Convention had a right to receive.
In the circumstances of the case, the Court saw no reason to call into question the Danish Supreme Court’s conclusion that the applicant had broken the law. As regards counts 1 and 2 that court had found unanimously that the applicant had provided guidance as well as procured medications, by specific acts, for A and B, in the knowledge that they had been intended for their suicide.
[the applicant] assisted her [C] in a specific and significant way in committing suicide, and that the advice is not exempt from punishment due to the circumstance that his advice was based on a general guide that had lawfully been uploaded to the website of ‘Physicians in Favour of Euthanasia’.
Such acts were clearly covered by section 240 of the Penal Code, and implicitly, did not give rise to an issue under Article 10. It had been taken into account as an aggravating circumstance that to a certain extent the acts had been committed in a systematic manner and that the applicant had been charged on three counts, the last act being committed after he had been provisionally charged by the police for violation of section 240 of the Penal Code. The applicant’s old age had been considered a mitigating circumstance. Further, taking into account the email exchanges between the applicant and C, the Court considered that the reasons relied on by the Supreme Court when finding that the act fell within the scope of section 240 of the Penal Code had been relevant and sufficient.
It is not unlawful in Denmark to publish a guide to pharmaceutical methods of suicide on the Internet or elsewhere. The applicant had prepared a guide “Medicines suited for suicide” (Lægemidler der er velegnede til selvmord), which was available on the internet. The guide combined a detailed procedure for how to commit suicide, including a list of about 300 common pharmaceuticals suited to committing suicide, and a description of the dose required to go through with the suicide, possible combinations of pharmaceuticals and caveats about the various pharmaceuticals.
it was undisputed that the applicant could legally publish his guide “Medicines suited for suicide” on the internet and could encourage to suicide if not directed at specific persons. [para 58]
In the Danish Supreme Court, the applicant submitted that he had only assisted A, B and C by providing guidance and information, which was already legally accessible on the internet, and which failed to reach the threshold under section 240 of the Penal Code.
In the case of C, two of the judges in the Supreme Court concluded that the applicant had not broken the law. They found that the information given by the applicant to C – from the guidance lawfully published in the internet – was not of such a nature that the information could “independently be considered to constitute a punishable act of assistance in her ending her life”.
Accordingly, the minority found that the applicant should have been acquitted on this count of violation of section 240 of the Penal Code, in conjunction with Article 10 of the European Convention on Human Rights on the right to receive and give information. In this respect they referred to the judgment by Strasbourg delivered on 29 October 1992 in cases 14234/88 and 14235/88, Open Door and Dublin Well Woman v. Ireland.
Three of the judges – the majority – found that there was a distinction to be drawn between the legal general guide available on the internet and the specific information provided by the applicant to C. In their view, the applicant’s specific advice was suited to a greater extent than the general guide to intensifying C’s desire to commit suicide.
The Strasbourg Court considered extensive comparative law evidence about assisted suicide. It noted that in a number of countries, euthanasia is criminalised, whereas assisted suicide is lawful in other countries in “certain circumstances”. The latter countries are Sweden, Switzerland, Germany, Italy, Austria, Estonia and Finland.
Assisted suicide is not criminalised in Sweden, but the Swedish Parliament recently adopted an amending Act making it a punishable act in certain circumstances to encourage or otherwise exert influence on another person to take his or her own life. In pursuance of this amending Act, any person who incites or otherwise exerts influence on another person to take his or her own life is punished for encouragement of suicide or negligent incitement to suicide.
This is the vital distinction that Stephen Sedley makes between “encouragement”, and “assistance”, two concepts that are disastrously conflated in English law.
Rather than recognise this fundamental difference, the law continues to inhibit the entitlement of a sane individual to draw a line under a life that may well have been fulfilling and worthwhile but has now become unbearable, by threatening to prosecute and jail anyone who – regardless of motive – gives them the help they need to end it. (LRB, October 2021)
In Switzerland, Germany and Austria assisted suicide is lawful. In Switzerland assisted suicide is offered by various organisations although it is (of course) punished by imprisonment or a pecuniary penalty if the person assisting in the suicide is motivated by self-serving ends. In Germany, assisted suicide was decriminalised as a consequence of a judgment of the Federal Constitutional Court. Similarly, assisted suicide was decriminalised in Austria since 31 December 2021 as a consequence of a decision made by the Constitutional Court of Austria.
It is noteworthy that neither Austria nor Germany had to wait until their respective parliaments grasped this nettle; their courts got on with a humane and modern update to existing law without undue delay or fuss. In this country there have been various attempts via Private Members’ Bills to allow assisted dying for adults with a terminal illness. Baroness Meacher’s Private Member’s Bill, which successfully passed its Second Reading in the House of Lords on 22 October last year, has yet to be debated in the Commons. What constitutes a “terminal illness” is open to question however and as a result an arbitrary criterion of six months has been put into place. As Sir Stephen points out,
It’s here, too, that the principal legislative alternative to the present blanket prohibition on assisting suicide – the six months to live test – encounters a tripwire. As the Court of Appeal pointed out in Noel Conway’s case, the prospective lifespan of a terminally ill patient is not a fact capable of exact ascertainment: it is inevitably an educated guess. Most of us know of cases where a patient has died within days of, say, a one-year prognosis, and of other cases where the patient has long outlived the prediction. This is one reason the proposal to confine assisted suicide to patients with six months or less to live – in other words, to reduce it to a right to an accelerated death – has become a hostage to fortune, bogging the argument down in wrangles about predictability and enabling its opponents to sidestep the bigger issue of the right of a rational patient to put an end to indefinite and unbearable suffering.
Sadly it looks as if we are going to continue to see the game of buck-passing on this issue between courts and parliament, country and region, national courts and the Strasbourg Court, for decades to come. Strasbourg says that the subject of assisted suicide concerns matters of morals, something “which speaks in favour of a wide margin of appreciation in the present case”. But surely morals are the central concern of the Convention on Human Rights and Freedoms and its enforcement body in Strasbourg? The assertion that differences between signatory states (the comparative law research is set out in paragraphs 26 to 32 of the judgment) prevents the Court from intervening simply because “Member States of the Council of Europe are far from having reached a consensus on this issue” (para 60) begs the very question of what the Convention, and the Court, are for.