November 26, 2024
By Dr. Stevie Martin
Since its landmark 2002 decision in Pretty v the United Kingdom, the issue of assisted dying [1] has never been far from the attention of the European Court of Human Rights (ECtHR). The Court’s two most recent decisions in this context have been especially significant in terms of clarifying what the European Convention on Human Rights (ECHR) does and does not require when it comes to regulating assisted dying. In Mortier v Belgium, a majority of the Court found that permitting assisted dying (which, in this blog, refers to both euthanasia and assisted suicide) does not, per se, violate a State’s obligations under Article 2 (right to life) of the ECHR. In a subsequent decision delivered in June 2024 – Dániel Karsai v Hungary (32312/23) – the ECtHR rejected the applicant’s claim that not permitting assisted suicide – at least for individuals with terminal illnesses – violated Article 8 (the right to respect for private life). As will be canvassed in this blog, the decision in Karsai is significant for several reasons beyond its findings with respect to Article 8.
Dániel Karsai – a leading human rights lawyer from Hungary – was diagnosed with a terminal neurodegenerative condition (amyotrophic lateral sclerosis) in August 2022. At the time his complaint was heard by the ECtHR, the applicant required daily assistance and would soon be completely paralysed and unable to communicate. At that point – which the applicant characterised as being ‘imprisoned in his own body without prospect of release apart from death’ (§ 14) – he wanted to be assisted to die. However, both assisted suicide and euthanasia are unlawful under Hungarian law. The applicant argued that the law in Hungary had the effect of ‘denying him the possibility of ending his life on his own terms, at home or abroad, thereby interfering with his right to respect for his private life’ as protected by Article 8 ECHR (§ 135). The applicant also alleged that Hungarian law differentiated between individuals based on the nature of their illness and that was discriminatory in violation of Article 14 (taken together with Article 8). Specifically, the applicant argued that while terminally ill individuals who were receiving life-sustaining treatment were able to bring about their deaths by refusing such treatment (thus being assisted to die), he was unable to do the same other than by assisted dying which was not permitted. That differentiation was, according to the applicant, unjustified and, thus, discriminatory in violation of Article 14, taken together with Article 8. Finally, the applicant also alleged violations of Articles 3 (prohibition of inhuman or degrading treatment) and 9 (freedom of thought, conscience and religion).
The applicant died shortly after the ECtHR delivered its judgment.
While the central tenant of the applicant’s case was that Hungarian law interfered with his right to choose the manner and timing of his death, thus invoking the State’s negative obligation, the complaint went ‘beyond mere non-interference’, with the applicant arguing that the State was under a positive obligation to ensure that he could effectively exercise his ‘right to a self-determined and dignified death’ (§ 136). The ECtHR noted that the State’s positive and negative obligations under Article 8 ‘do not always lend themselves to precise definition’, however the applicable principles are similar and ‘[i]n both contexts regard must be had to the fair balance that has to be struck between the competing interests’ (§ 136). In considering whether a fair balance had been struck between the applicant’s right to choose the manner and timing of his death and the aims pursued by the criminalisation of assisted dying in Hungary, the ECtHR considered both euthanasia and assisted suicide, though the Court did note that the applicant’s complaint focused on physician assisted suicide (§ 134).
While the Court recognised that ‘the applicant’s interest in having access to [assisted dying] relates to core aspects of his right to respect for his private life’ with ‘such values’ assuming particular significance ‘in the context of those terminally ill patients who see [assisted dying] as the only means of ending their suffering’ (§ 140), it dismissed the complaint by a majority of 7 votes to 1. Having regard to the ‘considerable margin of appreciation’ (§ 152) States have when determining whether assisted dying should be permitted and how it should be regulated, the Court determined that in maintaining a blanket prohibition on assisted dying, the Hungarian authorities had not overstepped that margin (§ 167). The Court accepted that the blanket ban pursued several legitimate aims under Article 8(2), namely protecting the lives of vulnerable individuals at risk of abuse, maintaining the medical profession’s ethical integrity and also protecting the morals of society with regard to the meaning and value of human life’ (§ 137). And the ban on assisted dying was not a disproportionate means of securing those aims. In reaching that conclusion, the Court had regard to risks of abuse involved in the provision of assisted dying, the potential broader social implications of assisted dying (including the potential to compromise the doctor/patient relationship) and the policy choices involved in its provision (including the allocation of resources to adequately train those who would provide assistance in dying and concerns regarding coherency of the domestic criminal-law system should assisted dying be decriminalised) (§ 176).
Under Hungarian law, withdrawal/refusal of life-sustaining treatment is permitted but euthanasia and assisted suicide are prohibited absolutely. The applicant alleged this differential approach to end-of-life practices was discriminatory. The Court avoided determining whether withdrawal/refusal of treatment was analogous to assisted dying by instead focusing on the fact that, even if they were analogous, such difference in treatment had an objective and reasonable justification. In particular, the Court considered that ‘[s]imilar cogent reasons exist under Article 14’ as exist in respect of the Article 8 claim ‘for justifying the allegedly different treatment of those terminally ill patients who are dependent on life-sustaining treatment and those patients who are not’ (§ 176).
The Court gave short shrift to the applicant’s complaints under Article 3 and 9, citing the judgment in Pretty v the United Kingdom as being dispositive of these claims (§ 178-9). The ECtHR in Pretty rejected the claim that the State, in declining to authorise assisted dying (or, at the very least, undertake not to prosecute the applicant’s husband for assisting her to die) was subjecting the individual to treatment for the purposes of Article 3 (Pretty § 54-55). The ECtHR in Pretty also dismissed the claim that Article 9 protected the right to manifest one’s belief in the ‘virtue of assisted suicide’ by way of State-sanctioned assisted dying (Pretty §§ 14, 82).
There were two separate opinions which are considered in more detail below.
While the Court’s determination that Hungary had not strayed outside of its ‘considerable’ margin of appreciation in not allowing the applicant to access assisted dying was not surprising, there are several notable facets to the Court’s judgment which warrant closer consideration. In the ensuing, I concentrate on the Court’s confirmation of its earlier decision in Mortier, the treatment of the Government’s ableism argument, and the two separate opinions.
The Government challenged the Court’s finding in Mortier v Belgium that permitting assisted dying was compatible with a State’s obligations under Article 2. Specifically, the Government submitted that the ECtHR in Mortier had failed to have regard to the wording of Article 2 when deciding that permitting assisted dying did not, per se, violate a State’s obligations. The Government noted that Article 2 prohibits the ‘intentional’ deprivation of life and assisted dying does not fall within one of the limited exceptions in Article 2(2). According to the Government, ‘the more the State, by regulating this field, was involved in [assisted dying], the more likely the deprivation of life would be contrary to the negative obligations under Article 2’ (§ 99). In rejecting the Government’s contention that Mortier was erroneous and that Article 2 precluded States from permitted assisted dying, the ECtHR observed at § 145:
…[the Court] has already found that Article 2 does not prevent the national authorities from allowing or providing [assisted dying], subject to the condition that the latter is accompanied by appropriate and sufficient safeguards to prevent abuse and thus secure respect for the right to life […] It is in the first place for the national authorities to assess whether PAD [physician-assisted dying] could be provided within their jurisdiction in compliance with this requirement. (Emphasis added).
This extract is significant not only for its reaffirmation of Mortier, but also because the Court explicitly recognised that Article 2 does not prevent authorities from providing assisted dying. This is notable given the Government’s (at least implicit) contention (a claim made explicitly in response to the potential legalisation of assisted suicide in England and Wales – see here) that providing assisted dying services on the national health service would violate the State’s negative obligation under Article 2. Plainly, the ECtHR was attuned to this argument, and it determined that States can both allow and provide assisted dying, so long as the safeguards set out in Mortier are in place and enforced, namely:
The judgment in Karsai, when taken with the earlier decision in Mortier, is highly significant for countries such as the United Kingdom which is currently considering whether or not to legalise assisted suicide for the terminally ill with a life expectancy of six months or less (see here). The judgments together make clear that States can allow and provide assisted dying while complying with its obligations under Article 2 provided there is a sufficiently robust regulatory system in place.
The Government argued that assisted dying was ‘not an acceptable option, as it was based on the assumption that people affected by illness or disability were a burden on society and that their lives were less worthy’ (§ 148). In rejecting this contention, the Court held that there was ‘nothing to suggest that [legalisation of assisted dying] is necessarily based on discrimination’ (§ 148). Notably, the Court also observed the arguable inconsistency in the Government claiming that allowing assisted dying was ‘ableist’ while Hungarian law permits the withdrawal/refusal of life-sustaining treatment by terminally ill patients: ‘the Government did not seem to consider this [permitting withdrawal/refusal of treatment] to be related to a lesser respect for the value of life of this category of patients’ (§ 148). The Court in Karsai went on to state that eligibility criteria – such as requiring that a person have a terminal illness with a limited life expectancy – ‘can be viewed as reflecting the delicate balance to be struck between respect for human dignity and the right to self-determination on the part of patients with full mental capacity who wish to die, and the risks involved in allowing PAD beyond a narrowly defined scope’ (§ 148). Indeed, the Court held at § 150 that assisted dying regimes may be limited to terminally ill patients with refractory symptoms and that extending assisted dying beyond patients who are ‘dependent on life support may give rise to further challenges and a risk of abuse’, thus justifying differentiating between categories of individuals on the basis of their medical condition for the purposes of accessing assisted dying.
The recognition that a State can legitimately limit assisted dying to certain individuals (thus differentiating between individuals on the basis of their medical condition and/or severity of illness) is particularly relevant to the debate surrounding the legalisation of assisted suicide that is currently taking place in the United Kingdom (specifically England and Wales). It has been suggested that assisted suicide should not be permitted at all because there is a likelihood that, if the scheme is limited to the terminally ill with six months or less to live, a successful Article 14 claim may be brought by those who are not eligible (i.e. those not terminally ill or those who are terminally ill but with more than six months to live) and that will ultimately result in the legislation being extended which opponents consider unacceptable (see, for instance, here). As the above extracts from Karsai make clear, the Court is plainly open to States limiting access to assisted dying to a small group of individuals and will accept that such differential treatment reflects the ‘delicate balance’ which States are permitted to make within their ‘considerable margin of appreciation’.
There were two separate opinions – each dissenting from the majority’s approach to different extents. Judge Wojtyczek agreed that Article 8 does not impose a positive obligation on the State to facilitate assisted dying. However, he disagreed with the majority’s reaffirmation of Mortier. Like Judge Serghides who dissented in Mortier, Judge Wojtyczek considered that Article 2 prohibits the decriminalisation of assisted dying (§ 3). In reaching that conclusion, the judge adopted an interpretation of Article 2 which appears to create an obligation to live and could be read as precluding States from allowing even withdrawal or refusal of treatment. In particular, Judge Wojtyczek opined that ‘the right to life is inalienable and cannot be waived by a request to obtain euthanasia or medically assisted suicide. Article 2 excludes any implicit “opt-out-of-life” clause’ (§ 3). The judge further contended that ‘given the clear letter of Article 2’, the right to respect for private life in Article 8 ‘cannot encompass decisions about one’s own life and death’ (§ 4). There is no obvious reason why such a statement would be limited to euthanasia or assisted suicide, and not extend to other end-of-life practices such as withdrawal or refusal of treatment, which the Grand Chamber in Lambert v France (a decision that is not referred to by Judge Wojtyczek) very clearly considered fell within Article 8. There is, then, a striking inconsistency between the judge’s observations on the one hand and, on the other, the Grand Chamber’s ruling in Lambert and the long line of authority from Pretty to Karsai confirming that Article 8 does encompass a right to choose the manner and timing of one’s death.
Judge Felici also authored a dissenting opinion. In stark contrast to Judge Wojtyczek’s position, however, Judge Felici considered that Article 8, alone or together with Article 14, does in fact oblige states to decriminalise assisted dying. In reaching that conclusion, the judge relied on both ‘legal reasoning and a much-needed “progressive” interpretation of the Convention’ (§ 1). Significantly, Judge Felici explicitly noted his own ‘personal conviction which, although not decisive, compel[ed] [him] to take a clear stance’ in favour of assisted dying (§ 1). In concluding that Article 8 requires that States permit individuals such as Dániel Karsai to access assisted dying), Judge Felici suggested that existing assisted dying case law did not ‘overlap with the present case’ (§ 4). With due respect, it is difficult to see how Mr Karsai’s case is meaningfully different to Diane Pretty’s. Both suffered from a terminal neurodegenerative condition. Both were arguing that the bans on assisted suicide in their respect countries violated, inter alia, Articles 3, 8, 9 and 14 ECHR. Indeed, Diane Pretty’s case, if successful, would have required less of the state than Dániel Karsai’s (she was not asking that the State make assisted dying available to her, rather that the authorities undertake not to prosecute her partner should he assist her to die by suicide). Judge Felici’s opinion is also notable for his comments regarding potential discrimination. According to the judge, a person who is terminally ill but not receiving life-sustaining treatment may nevertheless be in an analogous or sufficiently similar position to a terminally ill person who is receiving life-sustaining treatment and permitting the latter to die by refusing such treatment (or requesting its withdrawal) but not allowing the former to die with assistance is discriminatory under Article 14 and cannot be justified (§§ 12-13).
Given the increasing number of Council of Europe States that have (or are considering) legalising forms of assisted dying, it is highly likely that there will be more cases before the ECtHR concerning the compatibility of such schemes with the ECHR. While the Court’s recent assisted dying jurisprudence has confirmed that permitting assisted dying is not, per se, incompatible with a State’s obligations under Article 2, in Karsai it stopped short of holding that there is a positive obligation on States to facilitate access to euthanasia and/or assisted suicide. Nevertheless, the ECtHR did ‘reiterate that the Convention has to be interpreted and applied in the light of present-day conditions’ and there is a need for ‘legal measures’ (i.e. restrictions on assisted dying) ‘to be kept under review, having regard to the developments in European societies and in the international standards on medical ethics in this sensitive domain’ (§ 167). It is, then, possible that subsequent cases could culminate in a finding that States do have an obligation under Article 8 to ensure access to assistance in dying. In the interim, the Court has left it to States to determine, within their ‘considerable margin of appreciation’, whether assisted dying should be permitted and, if so, to what extent.
[1] ‘Assisted dying’ is used in this post to cover both euthanasia and assisted suicide. ‘Euthanasia’ refers to X doing an act with the intention of ending Y’s life at the express request of Y. While ‘assisted suicide’ refers to situations in which a capacitous person does the final act necessary to bring about their death having received assistance in doing so.
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