Editor's blog | Autonomy expanded
By ruling that the husband of woman who went to Dignitas after being refused access to lethal drugs in her own country, had his own article 8 rights engaged as a carer, the Strasbourg court has taken autonomy into a new dimension
Whatever you think about assisted dying cases, they have become an interesting measure of how the courts gradually take the law forward.
Just over ten years ago, Diane Pretty died of motor neurone disease, just weeks after the European Court of Human Rights upheld the refusal by the then DPP David Calvert-Smith QC to give assurances that Pretty’s husband would not be prosecuted if he helped her take her life.
But the ruling had set change in motion. The Strasbourg judges recognised that article 8 right to life was engaged in assisted suicide cases. It was a major step forward for right-to-die supporters and a victory for autonomy of choice.
It took a few years to reach the next significant stage in the campaign. This came with the case brought by Debbie Purdy against the new DPP, Ken Macdonald QC, for refusing to issue offence-specific guidelines. It involved another trip to Strasbourg and in the end the law lords – in their last ruling before the move to the Supreme Court – found in Purdy’s favour.
The present DPP, Keir Starmer QC, issued specific prosecution guide-lines in September 2009, but moves towards the legalisation of assisted suicide stalled after parliament rejected a proposed change in the law. In January this year a commission chaired by Lord Falconer – who introduced the amendment defeated in the Lords – recommended conditional lawfulness but it is now just gathering dust in Westminster.
So the ball is back with the media, with regular – and often moving – programmes about individuals suffering debilitating or terminal conditions. And with the courts.
The first applications in the case of Koch v Germany were brought by Mrs Koch, now deceased, who became quadriplegic after a fall and needed constant care. Mrs Koch had asked the German pharmaceutical authority to let her buy enough pentobarbital of sodium that she could kill herself. The authority’s refusal was upheld by the appeal courts, latterly hearing applications filed jointly by Mrs Koch and her husband Ulrich.
Eventually Mrs Koch travelled to Switzerland with her husband, who was with her when she died at the Dignitas clinic in 2005.
But the case continued, in Mr Koch’s own name, who argued that the authority’s refusal had affected him personally and breached his own right under article 8. It reached Strasbourg in 2008. Extraordinarily, the European judges agreed. In line with previous cases, they said, article 8 rights are not transferrable but, as his wife’s carer whose life had been directly affected by the refusal, Mr Koch had an admissible claim that his article 8 rights had been breached.
The question will now go back to the German courts, who may well rule that Mr Koch’s article 8 right was not breached, but they will have to consider the point. That is all they have to do, on the face of it. But the Strasbourg judges have closely linked Mr Koch’s claim to the issue of assisted dying. So even if, as they will probably do, the German courts reject Mr Koch’s application, the issue will from now on be looked at from a new perspective. Not just the ‘victim’, as the person receiving assistance is referred to in the CPS guidelines, but their carer too. That would take the concept of autonomy into a whole new dimension.