Gently, gently, catch the monkey – “rights” rejected by the courts

“Major social issues such as euthanasia are not fit to be decided by rights, and this is a good example to show rights are not a panacea for all social problems. This is because rights are necessarily enforced by judges, who have limitations to their position and capacity.” Such was the comment on a legal challenge last week for a man to be able to buy barbiturates in Switzerland.

In the case last week (2oth January 2011), Haas v Switzerland, a Swiss man in his late fifties with serious bipolar disorder wanted a prescription for sodium pentobarbital to allow him to end his life painlessly. (This is on Switzerland, where assisted suicide is not illegal). Ernst Haas was refused by about 170 different psychiatrists. He claimed this failure to help him end his life was a breach of his Article 8 rights under the European Convention on Human Rights (the right to respect for private life). The European Court recognised there was no consensus between European states on this issue, and Switzerland lent more towards article 8 than most other states since their law allows for assisted suicide. Therefore this issue was within the ‘margin of appreciation’ of each state, the area of discretion a state has in implementing their obligations under the European Convention.

Just as the court decided in the earlier, English case of Pretty v UK, a state’s failure to help an individual kill themselves does not breach their article 8 rights. In such a debated area as euthanasia, the only option for a court is to leave the decision to government, and it is an area which can be said to show the limits of a rights analysis.

With Diane Pretty, the court was faced with a woman who had a degenerative disease and was unable to take her life without assistance. She was refused assurance from the Director of Public Prosecutions that her husband would not face prosecution if he assisted her. The European Court found that her article 8 right was not infringed, citing the margin of appreciation for the UK in this area of the law.

The European Court had to recognise the limits of its own capabilities and the appropriateness of straying into the cultural and legal jurisdictions of member countries.

Talk of ‘rights’ and you immediately have a highly emotive debate. Rights are political pressure. A rallying cry. But taking ‘rights’ -based language to the political pulpit is more likely to generate hot air. Exit has long argued that the road to change and lawful assisted suicide is not by proclaiming a right to die but rather by seeking exceptions to the rule against murder.

The decision of the Court
The Court acknowledged that the right of an individual to decide how and when to end his life, provided that said individual was in a position to make up his own mind in that respect and to take the appropriate action, was one aspect of the right to respect for private life. However, the dispute in Mr Haas’ case concerned another matter: whether or not under Article 8 the State had the “positive obligation” to enable him to obtain, without a prescription, a substance enabling him to end his life without pain and without risk of failure.

Council of Europe member States are far from having reached a consensus as regards the right of an individual to choose how and when to end his life. In Switzerland, according to the Criminal Code, incitement to commit or assistance with suicide is only punishable where the perpetrator of such acts committed them for selfish motives. The vast majority of member States, however, appear to place more weight on the protection of an individual’s life (Article 2) than on the right to end one’s life (Article 8). The Court concluded that the States have a wide margin of discretion in that respect.

Although the Court recognised that Mr Haas might have wished to commit suicide safely, with dignity and without excessive pain, it was nevertheless of the opinion that the requirement under Swiss law for a medical prescription in order to obtain sodium pentobarbital had a legitimate aim, namely to protect people from taking hasty decisions and to prevent abuse. That was all the more true in a country such as Switzerland, which readily allowed assisted suicide.

Access to barbiturates in other assisted suicide countries
In Belgium and Luxembourg, specific rules exist on access to substances which can be used to facilitate suicide. In Belgium, pharmacists who issue euthanasia agents are not liable to prosecution where they do so on the basis of a prescription in which the doctor expressly states that he or she is acting in accordance with the Law of 28 May 2002. The rules lay down precautionary criteria and the conditions governing the prescription and issuing of the medicines in question; they must also contain provisions to ensure the availability of euthanasia agents. In Luxembourg, the Law of 16 March 2009 decriminalised euthanasia and assisted suicide. Under the Law, doctors may lawfully have access to medicines for use in committing suicide only where this forms an integral part of the process of euthanasia or assisted suicide.

In the U.S., change was possible in Oregon and Washington largely by voters (in a system that allows lawmaking by citizens). In the Netherlands, euthanasia slowly became law after years of being open to legal challenge. In Swiss law, selfishness was criminalised and apart from that, assisted suicide left alone, or with a few regulations. Assisted suicide is not about the rights of the individual: it is about the role someone else has to play so you can have the death you want.

Swiss law
Article 115 of the Swiss penal code considers assisting suicide a crime if and only if the motive is selfish. It condones assisting suicide for altruistic reasons. In most cases the permissibility of altruistic assisted suicide cannot be overridden by a duty to save life. Article 115 does not require the involvement of a physician nor that the patient be terminally ill. It only requires that the motive be unselfish. This reliance on a base motive rather than on the intent to kill to define a crime is foreign to Anglo-Saxon jurisprudence, but it can be pivotal in continental Europe.

Swiss law does not consider suicide a crime or assisting suicide as complicity in a crime. It views suicide as possibly rational. Also, it does not give physicians a special status in assisting it. When an assisted suicide is declared, a police inquiry is started, as in all cases of “unnatural death.” Since no crime has been committed in the absence of a selfish motive, these are mostly open and shut cases. Prosecution happens if doubts are raised on the patient’s competence to make an autonomous choice. This is rare.

Swiss law does not however recognise the concept of euthanasia. “Murder upon request by the victim” (article 114 of the Swiss penal code) is considered less severely than murder without the victim’s request, but it remains illegal. Following a proposal to the Swiss parliament to decriminalise euthanasia, in 1997 the federal government commissioned a working group which included specialists in law, medicine, and ethics to examine the issue. This group recommended that euthanasia remain illegal. Most of the group, however, proposed decriminalising cases in which a judge was satisfied that euthanasia followed the insistent request of a competent, incurable, and terminally ill patient in unbearable and intractable suffering. This explicitly included euthanasia performed by non-physicians, as they would not be committing a greater transgression than physicians. It was considered dangerous to create legal circumstances where a non-physician helper would have to be prosecuted whereas the physician would not. Some members of the group opposed decriminalising euthanasia.

The difficulties of providing assistance whether in euthanasia or suicide remains one of the primary dilemmas that results in the provision of effective self-deliverance (suicide) information, as provided by Exit.

Revisiting euthanasia and the limits of rights The lawthink blog
States Not Obliged to Assist Persons Wishing to Commit Suicide (ECHR blog)
Press release in English (ECHR Portal)
States Not Obliged to Assist Persons Wishing to Commit Suicide (UK Human Rights Blog)
AFFAIRE HAAS c. SUISSE (Court report, in French)
Assisted suicide and euthanasia in Switzerland: allowing a role for non-physicians (BMJ)
European Convention on Human Rights (ECHR)
Dianne Pretty (Court abstract)
Euthanasia –
Euthanasia Legislation in the European Union: is a Universal
Law Possible?
J. Lucy Pridgeon
Euthanasia, the right to die and the Bill of Rights Act Stuart Beresford
Philosophical approaches to the dilemma of death with dignity – E Telfer
Exit’s draft legislative proposals by S.A.M.McLean (exceptions to the rule)

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