There are several legal issues that never seem to go away, and the law surrounding assisted suicide and euthanasia is one of them, at least in the UK, where the controversial issue has reared its head on an annual basis for well over a decade.
The recent sad case of Tony Nichlinson and another person known only as Martin—a case that sought to allow voluntary euthanasia to become a possible defense to murder—is simply the latest in a long line of attempts to liberalize the law.
Along with most other nations, both assisted suicide and euthanasia are illegal in the UK. The arguments against weakening the law are well established—with any change likely to place immense pressure on vulnerable people to end their lives. Indeed, as has often been argued, suffering patients need understanding and sound medical treatment, not encouragement to kill themselves. Recognising this need, the UK has developed a reputation for providing the best palliative care in the world.
However, not all agree with the notion of providing care, not killing, and there have been regular attempts in Parliament to weaken the law on assisted suicide and euthanasia, notably in 2003, 2004, 2005, 2009, and then in March of this year. All of these attempts have failed.
Whether the proposals were far-reaching or relatively modest, the British Parliament has not passed a single measure that in any way supports assisted suicide or euthanasia. This is much to the chagrin of the well-funded and celebrity-backed pro-euthanasia activists, who are often behind the legislative proposals, and so a different approach has emerged over the years: bringing hard cases before the courts combined with an emotive media campaign.
Such an approach has had some success, and the danger of legal changes taking place “through the back door” and not through the correct democratic process is very real. The Nichlinson case posed such a danger, providing a clear opportunity for unelected judges to liberalize the law on euthanasia by usurping the will of Parliament. Thankfully, however, while some recent court decisions have muddied the legal waters, the High Court’s decision in the case of Nichlinson could not have been clearer.
Lord Justice Toulson, who made the lead judgment in the case, concluded that “It is not for the court to decide whether the law about assisted dying should be changed and, if so, what safeguards should be put in place. Under our system of government these are matters for Parliament to decide, representing society as a whole, after Parliamentary scrutiny, and not for the court on the facts of an individual case or cases.” Of course, such a statement should be obvious, but in an age of increased judicial activism, the conclusion is very welcome.
The circumstances surrounding the case of Tony Nichlinson and Martin were undoubtedly tragic. Tony, 58, suffered a catastrophic stroke in 2005. He was paralysed below the neck and unable to speak. Martin, 47, suffered a brain stem stroke in 2008. He cannot speak and can only communicate through small movements of his head and eyes. Both Tony and Martin had expressed a wish to die, and the case concerned, most fundamentally, whether voluntary euthanasia could be a possible defense to murder.
Lord Justice Toulson gave the case thorough treatment, presenting as it did, “legal and ethical questions of the most difficult kind.” Furthermore, as he rightly recognized, a decision to allow the claims would have “consequences far beyond the present cases.” Accordingly, Toulson carefully went through the statutory and common law history on suicide, as well as recent parliamentary proposals. He also considered the long line of authorities on assisted suicide and euthanasia, both from the UK courts and from the European Court of Human Rights.
After a significant review of the current position of the law, the judge held that “it would be wrong for the court to depart from the long established position that voluntary euthanasia is murder, however understandable the motives may be, unless the court is required to do so by article 8 [of the European Convention on Human Rights].”
Article 8 provides a “right to respect for private and family life”, and several attempts have been made at the European Court of Human Rights and domestically to read into this article a “right to be killed.” Again, however, the judge could not have been clearer, and he held that “it would be wrong for this court to hold that article 8 requires voluntary euthanasia to afford a possible defence to murder. To do so would be to go far beyond anything which the Strasbourg court has said, would be inconsistent with the judgments of the House of Lords and the Strasbourg court in Pretty, and would be to usurp the proper role of Parliament.”
The High Court therefore dismissed all of the issues that were brought before it and assisted suicide and euthanasia remain illegal in the UK.
Sadly, Tony Nicklinson died shortly after the hearing. However, while his situation was dire and his case tragic, it is absolutely right that the unelected judges deciding his case did not use it as an opportunity to change the law.
Paul Coleman is legal counsel with Alliance Defending Freedom in Vienna, Austria, where he specializes in international litigation with a focus on European law.