In this guest post, Rajiv Shah argues that the provision of assisted suicide in the England and Wales via the NHS would constitute a substantive breach of the negative obligation imposed on the State under Article 2 of the ECHR.
Introduction
Article 2 of the ECHR protects the right to life. That article contains two distinct substantive obligations: “the general obligation to protect by law the right to life, and the prohibition of intentional deprivation of life, delimited by a list of exceptions.” (Boso v Italy, at [1])
That first obligation is a positive one and requires States to take steps to protect life from third parties and even from individuals themselves. The precise content of that obligation is necessarily nebulous and the Court affords States a margin of appreciation in deciding what that obligation requires, and how it is to be fulfilled. So, in two recent Chamber decisions – Mortier v Belgium and Karsai v Hungary – the Strasbourg Court held that this positive obligation does not require States to forbid assisted suicide and euthanasia, but that if it does want to allow it, it must create legal safeguards to ensure that the decision of individuals to end their own life/or be killed by third parties is freely taken.
Crucially, neither Mortier nor Karsai considered whether there was a breach of negative obligations. As the Court noted in Karsai the argument made in Mortier was that the applicant “essentially complained that the State had failed in its positive obligations to protect his mother’s life” (at [126]). And in Karsai, as Hungary was not conducting euthanasia or assisted suicide, there is no question of the negative obligations under Article 2 being at issue. Therefore, whilst the Court has ruled that legalising assisted suicide is compatible with the positive obligation under Article 2, it has not had occasion to rule that the State itself doing it is in compliance with the negative obligation.
That matter, therefore, needs to be considered from the principles of Convention law. The negative obligation does not apply to third parties and only applies to the State. It means that the State and its agents may not intentionally deprive anyone of their life. This is subject to four limited exceptions (self-defence, effecting a lawful arrest, quelling a riot, and acts of war – there was a fifth exception, the death penalty, but this has been removed).
My argument is simple: this negative obligation prohibits the State from conducting euthanasia and assisted suicide itself, even as part of a well-regulated scheme with appropriate safeguards. This means, under the Convention, States may allow/tolerate private parties from conducting euthanasia/assisted suicide with appropriate safeguards but the State itself cannot conduct them. This does not create difficulties for European countries such as Switzerland where assisted suicide is only conducted by private associations and not by the State. Nor does it give rise to difficulties for States where healthcare (including euthanasia/assisted suicide) is privately delivered albeit with some public funding (no doubt there will be difficult edge cases where it could be argued that a doctor is an agent of the State if they receive a large proportion of their earnings from the State, but that will necessarily be fact specific).
However, in England and Wales healthcare is delivered centrally by the State and doctors are state employees. Under the Human Rights Act, it is uncontroversial that the NHS is a core public authority. This means that it would be a breach of the ECHR to provide euthanasia/assisted suicide on the NHS or on another, bespoke, State-run service.
Euthanasia/assisted suicide involve the intentional deprivation of life
When a doctor conducts an active euthanasia, his goal is to end life; it is clear that the deprivation of life is intentional. Assisted suicide is defined by s. 2 of the Suicide Act as doing an act capable of assisting suicide with intent that suicide be assisted. That mens rea requirement is key, it means that someone who would be guilty of the offence under s. 2 would intend for the patient to die due to the ingestion of the drug given. It is, therefore, an intentional deprivation of life.
There are two possible rejoinders to this argument. The first, is that when dealing with terminally ill patients, they would have died anyway so the drug either given (assisted suicide) or injected (euthanasia) is not the cause of death. With respect that rejoinder is clearly nonsense. The patient, whilst terminally ill, would not have died there and then, and whatever the law might require the death certificate to say their medical cause of death is the lethal drug. Furthermore, if that argument were true it would mean that under the ECHR a coup de grace (a final lethal blow given to a mortally wounded combatant) would be lawful even though the law of armed conflict considers it to be murder (recall that one of the exceptions to the negative obligation is an act of war provided there has been a derogation under Article 15).
The second rejoinder is limited to assisted suicide: since the patient and not the doctor has done the final act, the deprivation of life has been done by the patient and not the doctor. This has merit where the doctor did not know or intend what the patient would do (by analogy, a drug dealer who supplies heroin to someone who then overdoses did not cause his death: R v Kennedy (No 2) [2007] UKHL 14). But here the doctor and the patient would be acting in concert, and the doctor would intend for the patient to die, so both the acting in concert exception and the “intended outcomes are never too remote” causation rules lead to the conclusion that the chain of causation is not broken. So the doctor as the State agent would still cause the death of the patient and do so intentionally, the test is therefore met.
In any event, the Strasbourg Court has held that acts of non-state agents can be attributed to the State if they are done with the State’s “connivance or acquiescence” (Art 2 Guide at [123]). So even if the action of the patient broke the chain of causation, that act would still be done with connivance of the doctor as the State agent and so would be attributable to the State.
Leaving aside all those arguments of principle, the Grand Chamber in Lambert v France at [117]-[124] has already made the distinction between withdrawal of life support on the one hand and euthanasia and assisted suicide on the other hand. They held that since the former did not involve the intentional taking of life it would fall to be considered under the positive obligation but, a fortiori, since euthanasia and assisted suicide involve the intentional taking of life they would fall under the negative obligation.
There is, therefore, a prima facie breach of the negative obligation if England and Wales operates an assisted suicide (or euthanasia) scheme on the NHS (or through another State run body).
Can this prima facie breach be justified?
It is self-evident that none of the listed exceptions apply, but could it be that there is another basis on which consensual euthanasia/assisted suicide is not a breach of Art 2’s negative obligation? Three possible arguments could be advanced: waiver, margin of appreciation and living instrument.
Margin of appreciation
Where reasonable minds can disagree on what the Convention requires the Court makes use of the margin of appreciation to avoid imposing an interpretation on Europe in the absence of a consensus. For example, since there is no consensus on when life begins for the purposes of Art 2 the Court affords State a margin of appreciation in deciding this issue and consequential issues (such as when and whether to permit abortion).
The positive obligation under Article 2 is necessarily more nebulous and open to reasonable disagreement: including on whether respect for the right to life requires the prohibition of assisted suicide in all cases, this is why Mortier and Karsai were decided as they were.
But the position is quite different when it comes to the negative obligation. There is no scope for reasonable disagreement (except on the issue of when life begins, which is not relevant here) and so the margin of appreciation is simply not applicable. It is not surprising that none of the Article 2 negative obligation case-law refers to the margin of appreciation.
Waiver
Some but not all ECHR rights can be waived. In Albert and Le Contmpte v Belgium the Court said at para 35 that “the nature of some of the rights safeguarded by the Convention is such as to exclude a waiver of the entitlement to exercise them (see the De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 12, p. 36, para. 65), but the same cannot be said of certain other rights.” So far all cases of waiver of rights have been about procedural and not substantive rights. It would be surprising if non derogable substantive rights could be waivable.
Indeed, the Court has held that in cases of suicide in custody of the State, the State was still under a duty to conduct an effective investigation. Regardless of whether the suicide could be said to be purely voluntary or not. This points against the right to life being waivable.
In any event, in Streletz, Kessler and Krenz v Germany the Grand Chamber said, at [94], that “the right to life is an inalienable attribute of human beings and forms the supreme value in the hierarchy of human rights.” So there is no basis to conclude that the right to life – especially the prohibition on the State taking life intentionally – can be waived.
Living instrument
The living instrument doctrine is not a blank cheque, and as President Sicilianos has said it cannot be used for interpretations that are contra legem. Reading in a new exception would be contra legem and so would not be permissible.
There is only one case where the Court has created a new exception to a limited list of exception and that was Hassan v UK. In some prior cases the Court had held that ECHR was binding on States when conducting military operations abroad. This then raised a problem for States as under the Law of Armed Conflict the grounds on which individuals can be detained are wider than the limited grounds listed in Article 5. In Hassan Strasbourg created a new exception to Article 5 to authorise such types of detention even though it was not mentioned in the text of the Convention.
There are two key features of the reasoning of the Court. First, it concluded that the State practice (to detain people under IHL without derogating from the ECHR) was such that it could amount to an implied agreement to amend the Convention by creating a new exception. Secondly, it relied on the international lex specialis as already providing for authorisation for such conduct and did not want the Convention to be interpreted contrary to it. Neither of those considerations apply in this case. There is, therefore, no basis to use the living instrument doctrine to create a new exception.
Conclusion
To conclude, whilst ECHR States may permit third parties to perform euthanasia or assisted suicide, they are forbidden by the clear text of Article 2 from doing so themselves. Euthanasia and assisted suicide both amount to an intentionally deprivation of life, and so if it were done on the NHS or by other State employees it would be contrary to the ECHR. Since that obligation is a particularly clear one, there is no scope for the margin of appreciation to operate to give States greater leeway. They cannot intentionally deprive someone of their life through euthanasia or assisted suicide.
This conclusion might, at first sight, seem surprising given that a number of European countries have legalised assisted suicide and euthanasia. But none of those countries have a state run healthcare system like the UK does, so it is likely – and certainly arguable – that they do not fall within the scope of the negative obligation.
The only means by which that conclusion could be avoided is if the Strasbourg Court developed its case-law to create a new exception to Article 2. But for the reasons given above it would be an improper use of the doctrine of waiver or living instrument to reach such a conclusion.
Insofar as the domestic courts are concerned, “it is not the function of our domestic courts to establish new principles of Convention law” but is instead – in situations that have not yet come directly before Strasbourg – it is to “to anticipate, where possible, how the European court might be expected to decide the case, on the basis of the principles established in its case law.” (AB v SSJ at [59]). This means that the only course of action open to them would be to find a violation if the State performed euthanasia/assisted suicide: by applying existing principles of Convention law and not creating new one.
Rajiv Shah is a former Special Advisor to a Lord Chancellor, Attorney-General and Prime Minister. He holds a PhD in Law from the University of Cambridge.
The Author is grateful to Dr Conor Casey, Prof Colm O’Cinneide, Anthony Speight KC and Dr Yuan Yi Zhu for their helpful comments. Any errors are the Author’s own.
