Assisted Suicide and the European Convention on Human Rights

229 Pages·2021·12.611 MB·English

by  Stevie Martin

Assisted Suicide and the
European Convention on
Human Rights
Locating assisted suicide within the broader medical end-of-life context and
drawing on the empirical data available from the increasing number of permis-
sive jurisdictions, this book provides a novel examination of the human rights
implications of the prohibition on assisted suicide in England and Wales and
beyond. Assisted suicide is a contentious topic and one which has been the sub-
ject of judicial and academic debate internationally. The central objective of the
book is to approach the question of the ban’s compatibility with the European
Convention on Human Rights afresh; freed from the constraints of the existing
case law and its erroneous approach to the legal issues and selective reliance on
empirical data. The book also examines the compatibility of the ban on assisted
suicide with rights which have either been erroneously disregarded or not con-
sidered by either the domestic courts or the European Court of Human Rights.
Having regard to human rights jurisprudence more broadly, including in the
context of abortion, the research and analysis undertaken here demonstrates that
the ban on assisted suicide violates the rights of a significant number of individ-
uals to life, to freedom from torture or inhuman or degrading treatment and to
private life. Such analysis does not depend on a strained or contrived approach to
the rights at issue. Rather, the conclusions flow naturally from a coherent, logical
application of the established principles governing those rights.
While the focus of the book is the Suicide Act 1961, the conclusions reached
have implications beyond England and Wales, including for the other devolved
jurisdictions and international jurisdictions. Beyond courts and legislators, it
will be a valuable resource for students of human rights and medical law, as well
as medical and legal practitioners and academics working in human rights and
end-of-life care.
Stevie Martin is a Lecturer in Public Law at the University of Cambridge, UK.
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Assisted Suicide and the European Convention on Human Rights
Stevie Martin
For more information about this series, please visit:
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Assisted Suicide and the
European Convention on
Human Rights
Stevie Martin
First published 2021
by Routledge
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Routledge is an imprint of the Taylor & Francis Group,
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© 2021 Stevie Martin
The right of Stevie Martin to be identified as author of this work
has been asserted by her in accordance with sections 77 and 78
of the Copyright, Designs and Patents Act 1988.
All rights reserved. No part of this book may be reprinted or
reproduced or utilised in any form or by any electronic, mechanical,
or other means, now known or hereafter invented, including
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Trademark notice: Product or corporate names may be trademarks
or registered trademarks, and are used only for identification and
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British Library Cataloguing-in-Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloging-in-Publication Data
Names: Martin, Stevie, author.
Title: Assisted suicide and the European Convention on Human Rights /
Stevie Martin.
Description: New York : Routledge, 2021. | Series: Biomedical law and
ethics library | Includes bibliographical references and index.
Identifiers: LCCN 2020048560 (print) | LCCN 2020048561 (ebook) | ISBN
9780367628222 (hardback) | ISBN 9781003111030 (ebook)
Subjects: LCSH: Assisted suicide--Law and legislation--Europe. |
Euthanasia--Law and legislation--Europe. | Right to die--Law and
legislation--Europe. | Convention for the Protection of Human Rights and
Fundamental Freedoms (1950 November 5) | European Court of Human Rights.
| Assisted suicide--Law and legislation--England. | Assisted
suicide--Law and legislation--Wales.
Classification: LCC KJC6229.E95 M37 2021 (print) | LCC KJC6229.E95
(ebook) | DDC 344.404/197--dc23
LC record available at https://lccn.loc.gov/2020048560
LC ebook record available at https://lccn.loc.gov/2020048561
ISBN: 978-0-367-62822-2 (hbk)
ISBN: 978-0-367-62843-7 (pbk)
ISBN: 978-1-003-11103-0 (ebk)
Typeset in Galliard
by KnowledgeWorks Global Ltd.
To Mum and Dad who taught me that all
that matters is kindness. And to Mary and
Olive for showing me unbounded amounts
of it.

Contents
Acknowledgement viii
Introduction 1
1 The legal status of end-of-life practices: A comparative introduction 15
2 Protecting life and assisting death: Is not allowing assisted dying
a violation of the right to life? 38
3 Freedom from torture or inhuman or degrading treatment:
Does the prohibition on assisted suicide violate Article 3? 52
4 The right to choose the manner and timing of one’s death:
A re-examination of the ban’s proportionality 76
5 Justifying the blanket ban on assisted suicide: Considering
the empirical evidence 125
6 Differential treatment of end-of-life practices:
Discrimination under Article 14 of the ECHR? 158
Conclusions 201
Index 214
Acknowledgement
This book expands upon the research I undertook for my PhD thesis at the
Faculty of Law, University of Cambridge. I was privileged to have two wonderful
supervisors – Drs Stephanie Palmer and Kirsty Hughes – without whom neither
my thesis nor this book would exist. I am extremely fortunate to be able to call
them my friends and colleagues. I am also profoundly grateful to my examiners,
Professors Emily Jackson and David Mead. Their feedback has been integral to
the developments I have made in this book and their kindness on the day of my
examination will ensure that it is forever a happy memory.
Several chapters in this book have been presented at various conferences
including, in particular, the Second and Third International Conferences on
End of Life Law, Ethics, Policy, and Practice. The feedback I received during
those sessions, together with the sessions I attended as an audience-member,
were central to the research and analysis undertaken in both my doctoral thesis
and this book.
Thanks is also owed both to Gonville and Caius College and Cambridge
Australia Scholarships. Without the funding I received from both by way of
scholarships, I would not have been able to undertake my doctoral studies.
I cannot conclude without giving recognition to my family. Without their
love and support, none of this would have been possible. It is no coincidence
that my specialisation is human rights and its intersection with medical law. My
mother is a nurse and my parents have only one expectation of their two children:
to be kind.
Introduction
1 Background
I know that I am dying, but I am far from depressed … I intend to get every
bit of happiness I can wring from what is left of my life so long as it remains
a life of quality; but I do not want to live a life without quality. There will
come a point when I will know that enough is enough. I cannot say precisely
when that time will be … I just know that, globally, there will be some
point in time when I will be able to say – “this is it, this is the point where
life is just not worthwhile.” When that time comes, I want to be able to call
my family together, tell them of my decision, say a dignified good-bye and
obtain final closure – for me and for them.
My present quality of life is impaired by the fact that I am unable to say
for certain that I will have the right to ask for physician-assisted dying when
that “enough is enough” moment arrives. I live in apprehension that my
death will be slow, difficult, unpleasant, painful, undignified and inconsist-
ent with the values and principles I have tried to live by …1
This statement by Ms Taylor – who had a terminal neurodegenerative condition –
about the impact of Canada’s analogous ban on assisted suicide encapsulates the
reality of hundreds, if not thousands, of individuals residing in England and
Wales who have a terminal or life-limiting medical condition that will leave them
with little, or no, quality of life and which may result in a prolonged, painful,
and/or undignified death. As Ms Taylor’s account demonstrates, it is impossible
to overstate the magnitude of the harm that prohibiting assisted dying causes
these individuals. Laws such as the Suicide Act 1961, which criminalises assist-
ing and encouraging suicide in England and Wales,2 forces them to ‘choose’
between equally unsatisfactory options. They can:
• Take their lives prematurely, before their physical condition deteriorates to a
point at which they can no longer die by suicide without assistance;
• Travel to a permissive jurisdiction, if they have the financial means to do so,
to die with assistance, either alone or accompanied by loved ones who face
the risk of prosecution under the Suicide Act 1961 upon their return and
other legal ramifications stemming from their involvement; 3