Karsai v Hungary: little new on assisted dying

11 July 2024 by Guest Contributor

Introduction

Article 8

Regarding the potential violation of the applicant’s right to privacy, his primary argument centres on his desire to control the timing of his death. Due to his medical condition, he is condemned to a life of physical incapacity, pain, and existential dread. The applicant dismisses palliative care as a viable option: “While palliative care could provide relief with respect to certain aspects of his physical suffering, it could not provide relief from the experience of existential dread” (§91). Instead, he focuses on the fact that he cannot avail himself of assisted suicide provisions either in Hungary or abroad. Hungarian law prohibits assisting a patient in procuring their death, and even those aiding with arrangements for this purpose can face prosecution (§§135; 159).

The Court observed that, due to the lack of a uniform consensus among member states on assisted dying practices, each state is granted a considerable margin of appreciation in implementing policies on such sensitive issues. The court also noted, as the recent case of Mortier v. Belgium held, that the right to life (art. 2 ECHR) does not inherently exclude the decriminalisation of assisted dying. However, this decriminalisation must be accompanied by safeguards to prevent abuses of the right to life (§§126-128; 145).

The Court, finding no violation of art. 8, held that Mr Kasai’s suffering could not dismissed lightly. It noted that the applicant’s complaint mainly focused on “existential suffering” that “although it amounts to genuine and severe anguish, existential suffering relates essentially to a personal experience, which may be susceptible to change and does not lend itself to a straightforward objective assessment” (§158). Furthermore, the Court acknowledged that “existential suffering may be refractory to medical treatment […] and that the use of sedation to alleviate it might be contested or unwarranted in certain situations […]” (§157).  Professor Aubry, one of the experts consulted by the Court, emphasised two key points. First, he noted that patients suffering from the same condition as the applicant often exhibit ambivalence about their desire to die as the disease progresses. Second, he underscored the importance of palliative care for individuals affected by ALS, particularly in advanced stages, when they are typically permitted to receive palliative deep sedation and can die peacefully (§46).

Article 14

Regarding the violation of art. 8 ECHR and art. 14 ECHR the Mr Karsai argued that “Hungarian law accorded different treatment to those terminally ill persons with mental capacity who suffered from refractory symptoms but could hasten their death only by means of PAD [physician assisted dying], and those who could do so by having recourse to RWI [refusal or withdrawal of life-sustaining interventions” (§170).

In this case the Court held that the applicant’s clinical picture could not be compared to that of terminally ill patients who depend on life-sustaining medical treatments (§174). In fact, Mr Kasai’s diagnosis might lead to invasive life-sustaining interventions only towards the latest stages of his degenerative illness. Furthermore, the withholding or withdrawing of unwanted medical treatments falls within the right to informed medical consent and it is subjected to specific guidelines and safeguards in order to protect the patient’s autonomy (§175).

According to Professor Sandor, who produced an expert opinion for the Court, the right to informed consent is paramount in bioethics. On the other hand, “patients could refuse care, but could not ask for something specific” (§56). For these reasons the Court held that there has been no violation of art. 14 in conjunction with art. 8 of the Convention.

Separate opinions

Two judges’ separate opinions provide an opportunity to delve deeper into the reasoning of the Court’s majority, as they both address the fundamental principles underlying the final decision. Judge Wojtyczek in his separate concurring opinion disagreed with the majority that the applicant’s request to have access to physician assisted dying would fall under his right to respect his private life. The judge emphasised how the right to life – as the practical and effective basis for the enjoyment of all other rights – may hardly “encompass decisions about one’s own life and death” and for this reason, the right to private life, should not extend to the choice of death (§4, Judge Wojtyczek partly concurring, partly dissenting opinion). He noted that the suffering stemming from a personal feeling in relation to the absence of meaning of life may be exacerbated (or not properly tackled) if people can choose their own death.

Judge Felici, dissenting on both accounts with the Court’s majority, firstly emphasised his impression that “the applicant’s legitimate concerns were not taken into account, and that his legitimate request for help fell on deaf ears” (§7, Judge Felici dissenting opinion). In fact, according to Judge Felici, palliative care could not be considered a feasible option to ease the applicant’s suffering since “the expert consulted have indicated that there is currently no medical treatment capable of alleviating existential suffering” (§9, Judge Felici dissenting opinion, my emphasis). In other words, the dissenting Judge stressed an evident reality: so far medicine has not been able to offer a cure to the sentiment that life has lost its meaning. And, for this reason, assisted dying is envisaged as the only possible answer to the applicant existential cry for help. Consequently, the dissenting judge finds that the impossibility for the applicant to avail himself of assisted dying provisions both in his country and abroad would breach his right to privacy enshrined by art. 8 of the Convention.

Specifically, Hungary – compared to other member states which permit assisted dying or are paying great attention on the matter – would have failed to address the severe suffering of the applicant (§5, Judge Felici dissenting opinion). Therefore, Judge Felici dissented that in this instance the margin of appreciation doctrine (which applies on sensitive matters where there is no uniform agreement) should not be invoked. Giving that, “there are no insurmountable legal obstacles to affirming a positive obligation on the part of the State, having regard to all the characteristics of this case, in relation to the application of Article 8 of the Convention” (§6, Judge Felici dissenting opinion).

Secondly, the Judge disagreed with the Court majority’s decision according to which the applicant’s medical condition should be considered similar to the one endured by terminally-ill patients subjected to invasive life-sustaining medical treatments since Mr Kasai’s condition has made him dependant on others for all his personal needs. Hence Judge Felici argued that “the subordination of the decision to take one’s life to whether one is dependent on life-saving treatment represents an unnecessary reduction of the protection of the right to life and an interference in private life, understood as the individual’s capacity for self-determination” (§13, Judge Felici dissenting opinion).

Dr Ilaria Bertini is a Research Fellow at BIOS Centre