The incompatibility of the end-of-life ‘blanket ban’ with Article 8 of the Human Rights Act

The UK law takes a binary approach to life-shortening care which is mirrored in the legal regulation of access to assisted suicide. Often referred to as the ‘blanket ban’. Where assisted suicide is unlawful for all patients regardless of their circumstances or suffering under the Suicide Act section 2(1). [1] This approach has been defended as justified as it mitigates a ‘slippery slope’ [2] and the creation of exceptions would be incompatible with the Human Rights Act Article 2. [3] However, many have argued that the current law is already incompatible with the Human Rights Act and therefore, if lawmakers are concerned with ‘maintaining the superiority’ [4] of the Human Rights Act, they must agree that the current laws are unjustified. [5] In the case of Nicklinson, [6] it was argued that the law surrounding assisted suicide is currently unjustifiable as it is incompatible with Article 8 of the Human Rights Act, [7]

Article 8 protects ones right to respect for private life, family life, home and correspondence. [8]  In Nicklinson, [9] Nicklinson suffered a stroke and was paralysed, unable to fulfil his wish of suicide. The only option being ‘voluntary palliated starvation’, where a competent individual chooses to stop eating and drinking. [10] Mr Nicklinson applied to the High Court for a declaration that the current state of the law in that connection was incompatible with his Human Rights. [11] On appeal, only 2 out of 9 justices held that section 2(1) was incompatible with Article 8: Lady Hale and Lord Kerr.  Lady Hale argued that the law was incompatible because it “fails to admit any exceptions”, continuing to state that “it would not be beyond the wit of the legal system to devise a process for identifying those people, who should be allowed to end their own lives.”

However, the law is unlikely to implement this in the future as while Lady Hale fails to clarify the provisions of the ‘exceptions’, many schemes have been put forward to define what ‘exception’ should be made for assisted suicide to make the law justified. Such as in the case of Conway [12] where it was argued that the ‘blanket ban’ was incompatible with Article 8 but that the law should only provide exceptions for those who are terminally ill. Conway proposed ‘an alternative statutory scheme’ to show ‘that the blanket prohibition in section 2(1) is a disproportionate interference with Article 8 rights’. However, such as in the case of Nicklinson, the claim as rejected on the grounds that there is a ‘rational connection between the prohibition in section 2(1) and the protection of the vulnerable’. This mirrored the Falconer Bill, which was rejected by the courts. [13] This shows a clear stance by lawmakers on keeping physician assisted suicide unlawful and maintaining a unjustifiable binary approach in order to protect the sanctity of life and avoid a hypothetical slippery slope.

References:

[1] Suicide Act 1961 s 2(1)

[2] Gov.UK, ‘Memorandum by Professor Emily Jackson, Chair of Medical Law, Queen Mary, University of London’ (Gov.UK, 2024) <https://publications.parliament.uk/pa/ld200405/ldselect/ldasdy/86/86we13.htm> accessed on 5th May 2024

[3] Elizabeth Wicks, ’The Supreme Court Judgement in Nicklinson: One Step Forward on Assisted Dying; Two Steps Back on Human Rights: A commentary on the Supreme Court judgment in R (Nicklinson) v Ministry of Justice; R (AM) v Director of Public Prosecutions [2014] UKSC 38’ 23(1) (2015) Medical Law Review 144–156

[4] Elizabeth Wicks, ’The Supreme Court Judgement in Nicklinson: One Step Forward on Assisted Dying; Two Steps Back on Human Rights: A commentary on the Supreme Court judgment in R (Nicklinson) v Ministry of Justice; R (AM) v Director of Public Prosecutions [2014] UKSC 38’ 23(1) (2015) Medical Law Review 144–156

[5] John Keown ‘Stevie Martin, Assisted Suicide and the European Convention on Human Right’  [2024] Medical Law Review 220

[6] R (on the application of Nicklinson and another) (AP) (Appellants) v Ministry of Justice (Respondent) [2014] UKSC 38

[7] The Human Rights Act 1998

[8] Equality and Human Rights Commission, ’Article 8: Respect for your private and family life’ (Equality and Human Rights Commission, 2021) <https://www.equalityhumanrights.com/human-rights/human-rights-act/article-8-respect-your-private-and-family-life> accessed April 23rd

[9] R (on the application of Nicklinson and another) (AP) (Appellants) v Ministry of Justice (Respondent)

[10] Ben White, Lindy Willmott, Julian Savulescu, ‘Voluntary palliated starvation: a lawful and ethical way to die?’ 22(2) (2014) Journal of Law and Medicine

[11] [2014] UKSC 38

[12] R (on the application of Conway) v Secretary of State for justice [2018] EWCA Civ 16

[13] UK Parliament ‘Assisted Dying Bill [HL]’ (UK Parliament, 2015) <https://bills.parliament.uk/bills/1381> accessed 20 May 2024