An examination of the Diane Pretty assisted suicide case

On 29 November 2001 the House of Lords considered the case of
Diane Pretty. Since the matter was in the high court only on 18th
October 2001, this was swift indeed. The reason of course was that
Mrs Pretty suffers from motor neurone disease.

According to Lord Bingham of Cornhill this is “a progressive
degenerative illness from which (Mrs Pretty) has no hope of
recovery. She has only a short time to live and faces the prospect
of a humiliating and distressing death. She is mentally alert and
would like to be able to take steps to bring her life to a peaceful
end at a time of her choosing.” Not only was the director of public
prosecutions represented, but also the home secretary and the court
also received written submissions from a Roman Catholic Archbishop
as well as the Medical Ethics Alliance, the Society for the
Protection of Unborn Children and Alert.

Mrs Pretty wishes her husband to help her end her own life, at a
time of her own choosing, and he would like to assist, but only if
he was sure that he will not be prosecuted under section 2(1) of
the Suicide Act 1961 for aiding and abetting his wife’s suicide.
Mrs Pretty asked DPP to undertake that he would not prosecute Mr
Pretty if he did assist his wife to commit suicide, but the DPP has
refused to give such an undertaking.

Mrs Pretty applied for judicial review of that refusal, and the
Queen’s Bench Divisional Court upheld the director’s decision. “Mrs
Pretty claims that she has a right to her husband’s assistance in
committing suicide and that section 2 of the 1961 Act, if it
prohibits his helping and prevents the director undertaking not to
prosecute if he does, is incompatible with the European Convention
on Human Rights [ECHR]. It is on the convention, brought into force
in this country by the Human Rights Act 1998, that Mrs Pretty’s
claim … depends.

It is accepted … that under the common law of England she
could not have hoped to succeed.” Those words of Lord Bingham
summarise the issue before the House of Lords, that Mrs Pretty
needed to establish that the ECHR could help her.

Their Lordships’ task was to ascertain and apply the law of the
land, and not to act as a legislative body. They considered Article
2.1 of the ECHR in great detail – whereby “Everyone’s right to life
shall be protected by law”. Lord Steyn was perfectly clear “The
purpose of Article 2.1 is clear. It enunciates the principle of the
sanctity of life and provides a guarantee that no individual “shall
be deprived of life” by means of intentional human intervention.
The interpretation now put forward is the exact opposite viz a
right of Mrs Pretty to end her life by means of intentional human
intervention. Nothing in the article or the jurisprudence of the
European Court of Human Rights can assist Mrs Pretty’s case on this
article.

Their Lordships also considered Article 3 that “No one shall be
subjected to torture or to inhuman or degrading treatment or
punishment”. Mrs Pretty said that the DPP was subjecting her to
this by refusing to allow her husband to assist in ending her life
– as she continues to deteriorate, then the state is not ending or
ameliorating her suffering, which it should be under Article 3.

Lord Bingham said “Article 3 enshrines one of the fundamental
values of democratic societies and its prohibition of the
proscribed treatment is absolute…(and) is, as I think,
complementary to Article 2. As Article 2 requires states to respect
and safeguard the lives of individuals within their jurisdiction,
so Article 3 obliges them to respect the physical and human
integrity of such individuals. There is in my opinion nothing in
Article 3 which bears on an individual’s right to live or to choose
not to live.” He ended by saying “It cannot, in my opinion, be
plausibly suggested that the director or any other agent of the
United Kingdom is inflicting the proscribed treatment on Mrs
Pretty, whose suffering derives from her cruel disease.”

It was also argued that Article 8 (right to respect for private
and family life) gave Mrs Pretty the right to self-determination,
embracing the right to choose how and when to die. Here the home
secretary’s barrister told the court that in his view Mrs Pretty’s
rights were not engaged as Article 8 relates to the manner in which
a person conducts his life and their physical, moral and
psychological integrity. Lord Steyn agreed with him that the attack
on Article 8 must fail: “On the ground that the guarantee under
Article 8 prohibits interference with the way in which an
individual leads his life and it does not relate to the manner in
which he wishes to die.”

Their Lordships dealt briefly with Article 9 of the ECHR which
protects freedom of thought, conscience and religion, because
although one may accept that Mrs Pretty has a sincere belief in the
virtue of assisted suicide, and is free to hold and express that
belief, it does not follow that her husband should be absolved from
the consequences of criminal conduct.

Article 14 which deals with prohibiting discrimination was also
considered but in law, this article only gives effect to a
convention right. As none had been established then Mrs Pretty’s
argument under Article 14 failed.

The conclusion summarised by Lord Hope was: “It has not been
shown that any of the convention rights on which Mrs Pretty relies
have been infringed by the director’s act when he said that he had
no power to give the undertaking which she requested. So it cannot
be said that his act was unlawful within the meaning of section
6(1) of the Human Rights Act 1998 or that he was obliged by that
act to give the undertaking.”

Lord Hobhouse of Woodborough criticised “the highly
unsatisfactory character of the approach adopted by the appellant
and her advisers. If assisted suicide is to be permitted, it is
essential that the permission include suitable safeguards of an
appropriate rigour and specificity.”

He went further, saying: “I would stress that the procedure of
seeking to by-pass the ordinary operation of our system of criminal
justice by raising questions of law and applying for the judicial
review of ‘decisions’ of the director cannot be approved and should
be firmly discouraged. It undermines the proper and fair management
of our criminal justice system.”

Comment from Their Lordships:

All five law lords were acutely aware that: “This appeal
concerns the sanctity of human life. The sanctity of human life is
probably the most fundamental of the human social values. It is
recognised in all civilised societies and their legal systems and
by the internationally recognised statements of human rights. In
English law it is given effect to by the criminalisation of murder
and manslaughter”. (Lord Hobhouse of Woodborough).

Lord Bingham noted that: “The questions whether the terminally
ill, or others, should be free to seek assistance in taking their
own lives, and if so in what circumstances and subject to what
safeguards, are of great social, ethical and religious significance
and are questions on which widely differing beliefs and views are
held, often strongly. Materials laid before the committee (with its
leave) express some of those views; many others have been expressed
in the news media, professional journals and elsewhere.”

Nevertheless, all five Lords were clear that this is an area
where Parliament will have to decide: “For the time being,
Parliament has spoken by including section 2 in the Suicide Act
1961. Any amendment of that section and its terms would be a matter
for Parliament.” (Lord Hobhouse again).

My Comment:

In October I wrote that “The outcome of this case was utterly
predictable. The DPP is bound not to sanction in advance (or even
with hindsight) a breach of the law and the terms of the Suicide
Act are clear. It was expecting a lot from the judges to ask them
to effectively re-write the law on assisted suicide using the HRA
as an excuse. Their view was very firmly that Parliament should
consider this issue if public opinion is of such a strong view,
they were unconvinced this was the case.” The Law Lords have not
changed the law – that task they see as the province of the
legislature.

Bernadette Livesey

Human Rights Solicitor

Walker Morris