Living and dying with dignity

Health has been a recurrent theme in human rights cases over the last six months – the health of pregnant women and terminally ill patients, both with and without capacity, to be precise. While this marks a welcome departure from my usual preoccupation with immigration and criminal justice, it demands deeper, metaphysical questions concerning the nature of life, death, and individual autonomy.

The senior courts are well versed in these considerations but questions are inevitably asked about the role of the judge in intimate and deeply personal decisions of finality. Many rights advocates would argue that autonomy and dignity are antecedent principles informing all other rights. Yet others would argue, and these voices prevailed in the debates surrounding the Assisted Dying Bill, that the public interest is not served by elevating individual autonomy over the sanctity of life.

Disability campaigners are understandably concerned that any move towards assisted suicide could increase the vulnerability of disabled people. Health professionals may be divided over decisions of capacity and best interests, arguing that end of life decisions could be made during temporary periods of depression and anxiety. That everyone has an interest in such deeply personal decisions is unfortunate; it can deprive the individual of privacy and dignity in their final weeks.

Charlie Gard

The facts of the Charlie Gard case will be known to most readers, as the battle between parents and medical professionals over the assessment of critically ill Charlie’s best interests was rarely out of the headlines over the last few months.

Although the case concerned the right to private and family life, it was not primarily a case concerning the interpretation of human rights. Rather it was a case about how we identify best interests when the patient lacks capacity and where there is fundamental disagreement between medical professionals and loved ones. The courts’ role is to assess the child’s interests using the intellectual milestones test established in Wyatt v Portsmouth NHS Trust and another [2005] EWHC 693 (Fam).

Assisted dying

R (on the application of Conway) v The Secretary of State for Justice [2017] EWCA Civ 275, currently in the High Court, is of more direct interest to human rights lawyers. Conway suffers from motor neurone disease, which is extremely debilitating, degenerative, and terminal. He is challenging section 2(1) of the Suicide Act, which prohibits assisted suicide, so that he can be helped to end his own life when his condition becomes intolerable.

Conway’s case is comparable to that of Diane Pretty, which reached the European Court of Human Rights in 2002. Despite the increasing public support for assisted dying, both the judiciary and the legislature have been unwilling to countenance any move towards liberalisation of the law. Conway is essentially asking the judiciary to act when the legislature, through its rejection of the Assisted Dying Bill in 2016, has refused to do so.

Oliver Wendell Holmes famously stated that “hard cases make bad law”, but the similarity of Conway’s arguments to those presented in Pretty v UK [2002] ECHR 423 and more recently in Nicklinson v Ministry of Justice [2014] UKSC 68 suggests that this not a hard case in the sense that the facts are truly exceptional.

The human rights argument focuses on the right to private life in article 8. In Pretty, the ECtHR rejected arguments based on both article 2 and 3 but disagreed with the House of Lords in accepting that such decisions engaged private life (on the facts, however, the infringement was found to be justified). Nicklinson’s case also concerned article 8, but there are material differences in the facts which suggest that Conway may have more success.

Conway’s condition is terminal; Nicklinson suffered from locked-in syndrome and was paralysed from the neck down but the condition was not terminal. Thus, it could be easier to provide a specific exception for suffers of Conway’s condition without undermining the rights and freedoms of other vulnerable persons with disabilities. More significantly, parliament has since decided to reject the Assisted Dying Bill, so the argument of judicial overreach is no longer applicable. Rejecting Nicklinson’s application in the Supreme Court, Lord Neuberger suggested that if parliament decided not to act there was a “real prospect” that a future assisted dying case would succeed.

Regardless of the outcome of this case, it seems probable that more cases on the human rights compatibility of the Suicide Act will come to court. In 2007, a 23-year-old rugby player, Daniel James, was left paralysed from the shoulders down following an injury sustained on the playing field. He attempted suicide several times and despite his parent’s wishes he pleaded to be allowed to end his life. Ultimately, Daniel’s family travelled to Switzerland, where he was assessed and assisted in fulfilling his wishes.

Yet the family members risked prosecution under the Act; they were essentially torn between upholding the law and supporting the wishes of a suffering relative. The decision of the director of public prosecutions not to prosecute the parents and friend of Daniel James was surely the right one, but the uncertainty and stress of a possible prosecution at such a difficult time does not serve the interests of justice well.

Health and welfare of pregnant women

Following High Court rulings in 2015 and 2016 suggesting that existing abortion laws in Northern Ireland breached article 8, there was a sense that legislative reform was inevitable. The decision in Attorney General for Northern Ireland and the Department of Justice v The Northern Ireland Human Rights Commission [2017] NICA 42 pours cold water onto the hopes of reformists. The balancing of the mother’s article 8 rights with the competing rights and freedoms of her unborn child suggests that pregnant women lose their autonomy in the interests of public morality.

The Abortion Act 1967 does not extend to Northern Ireland: abortion is only allowed there if a woman’s life is at risk, or if there is a permanent risk to her mental or physical health. In 2013 the Northern Ireland Human Rights Commission took judicial review proceedings, claiming that the grounds for abortion should be extended. The Belfast High Court agreed that in the face of legislative inertia, the law should be reformed to enable victims of sexual crimes and those whose unborn babies had fatal foetal abnormalities to seek a termination without fear of prosecution. The Northern Irish criminal provisions were held to be incompatible with articles 3, 8, and 14 of the European Convention on Human Rights.

The decision has now been overturned by the Northern Ireland Court of Appeal. It has been consistently held that the high threshold of article 3 is not reached in cases of psychiatric harm resulting from continuation of pregnancy. Thus, the central focus of the appeal court’s reasoning concerned the qualified nature of the right to private life in article 8. Grounding his approach in the majority decision in A, B and C v Ireland (2010), which afforded a wide margin of appreciation to the state on questions of “profound morality”, Lord Chief Justice Sir Declan Morgan concluded that the ban on terminations was not a matter in which the appeal court would intervene.

The application of margin of appreciation in these cases stands in marked contrast to the Strasbourg court’s ruling in Dudgeon v UK (1982), where the public attitude towards homosexuality, which might also be described as “profoundly moral”, was not able to justify legislation criminalising homosexual behaviour. It is seven years since the majority decision in A, B and C where the Strasbourg court accepted a consensus in favour of legalised abortion in contracting states, and the appeal court’s deferral to the margin of appreciation may now be difficult to sustain.

Morgan LCJ reasoned that making a declaration in the terms sought by the Commission “would effectively amount to judicial legislation”. But where the legislative body persistently fails to exercise its powers to protect the rights of pregnant women, it might be suggested that Morgan’s argument should give way. Lord Neuberger recognised as much in Nicklinson.

However, it must surely be acknowledged that in the present climate, with the additional public scrutiny that surrounds perceived cases of judicial overreach, as evidenced by the aftermath of the Miller case, it will be a brave judge indeed who moves to defend human rights in the face of legislative inaction.

Helen O’Nions is a senior lecturer at Nottingham Law School, NottinghamTrent University

@LawNLS www4.ntu.ac.uk/nls