Diane Pretty and the Right to Die

In 2001, Diane Pretty applied to the UK Director of Public Prosecutions (DPP), in a letter dated 27 July 2001, written on her behalf, to give an undertaking not to prosecute the applicant’s husband should he assist her to commit suicide in accordance with her wishes.

In November 1999, Diane Pretty was diagnosed with motor neurone disease (MND).

MND is a progressive neuro-degenerative disease of motor cells within the central nervous system. The disease is associated with progressive muscle weakness affecting the voluntary muscles of the body. As a result of the progression of the disease, severe weakness of the arms and legs and the muscles involved in the control of breathing are affected. Death usually occurs as a result of weakness of the breathing muscles, in association with weakness of the muscles controlling speaking and swallowing, leading to respiratory failure and pneumonia. No treatment can prevent the progression of the disease.

In a letter dated 8 August 2001, the DPP refused to give the undertaking:

On 20 August 2001, Pretty applied for judicial review of the DPP’s decision and the following relief:
  • an order quashing the decision of the DPP on 8 August 2001

  • a declaration that the decision was unlawful or that the DPP would not be acting unlawfully in giving the undertaking sought
  • a mandatory order requiring the DPP to give the undertaking sought, or alternatively
  • a declaration that section 2 of the Suicide Act 1961 was incompatible with Articles 2, 3, 8, 9 and 14 of the Convention
On 17 October 2001, the Divisional Court refused Pretty's application, holding that the DPP did not have the power to give the undertaking not to prosecute and that section 2(1) of the Suicide Act 1961 was not incompatible with the Convention.

Pretty then appealed to the House of Lords. They dismissed her appeal on 29 November 2001 and upheld the judgment of the Divisional Court.

European Court of Human Rights
On 21 December 2001, Diane Pretty lodged an application against the United Kingdom of Great Britain and Northern Ireland European Court of Human Rights under several Articles in the Convention for the Protection of Human Rights and Fundamental Freedoms.

Pretty argued that fundamental rights under the Convention had been violated, in her case, by the refusal of the Director of Public Prosecutions to give an undertaking not to prosecute her husband if he were to assist her to end her life and by the state of English law which rendered assisted suicide, in her case, a criminal offence. 

The British Government submitted that the application should be dismissed as manifestly ill-founded, on the grounds either that the applicant’s complaints did not engage any of the rights invoked by her or that any interferences with those rights were justified within the exceptions allowed by the Convention’s provisions.

Having deliberated in private on 19 March and 25 April 2002, the European Court of Human Rights delivered its judgment.

Alleged Violation of Article 2 of the Convention
Pretty's application submitted that permitting her to be assisted in committing suicide would not be in conflict with Article 2 of the Convention, otherwise those countries in which assisted suicide was not unlawful would be in breach of this provision. 

Furthermore, Article 2 protected not only the right to life but also the right to choose whether or not to go on living. It protected the right to life and not life itself, while the sentence concerning deprivation of life was directed towards protecting individuals from third parties, namely the State and public authorities, not from themselves. 

Article 2 therefore acknowledged that it was for the individual to choose whether or not to go on living and protected her right to die to avoid inevitable suffering and indignity as the corollary of the right to life.

The British Government submitted that the applicant's reliance on Article 2 was misconceived, being unsupported by direct authority and being inconsistent with existing authority and with the language of the provision. Article 2, guaranteeing one of the most fundamental rights, imposed primarily a negative obligation. Though it had, in some cases, been found to impose positive obligations, this concerned steps appropriate to safeguard life. 

The wording of Article 2 expressly provided that no-one should be deprived of their life intentionally, save in strictly limited circumstances which did not apply in the present case. The right to die was not the corollary but the antithesis of the right to life.

European Court
The Court found that no right to die, whether at the hands of a third person or with the assistance of a public authority, can be derived from Article 2 of the Convention and that that there had been no violation of Article 2 of the Convention.. 

Alleged Violation of Article 3 of the Convention
The applicant focused her complaints principally under Article 3 of the Convention. She submitted that the suffering which she faced, qualified as degrading treatment, under Article 3 of the Convention. She suffered from a terrible, irreversible disease in its final stages and she would die in an exceedingly distressing and undignified manner as the muscles which controlled her breathing and swallowing weakened to the extent that she would develop respiratory failure and pneumonia. 

While the Government was not directly responsible for that treatment, it was established, under the Court's case-law, that under Article 3, the State owed to its citizens, not only a negative obligation to refrain from inflicting such treatment but also a positive obligation to protect people from it. In this case, this obligation was to take steps to protect her from the suffering which she would otherwise have to endure. 

The applicant argued that there was no room under Article 3 of the Convention for striking a balance between her right to be protected from degrading treatment and any competing interest of the community, as the right was an absolute one. In any event, the balance struck was disproportionate as English law imposed a blanket ban on assisting suicide, regardless of the individual circumstances of the case. 

As a result of this blanket ban, the applicant had been denied the right to be assisted by her husband in avoiding the suffering awaiting her, without any consideration having been given to the unique facts of her case, in particular that her intellect and capacity to make decisions were unimpaired by the disease, that she was neither vulnerable nor in need of protection, that her imminent death could not be avoided, that if the disease ran its course she would endure terrible suffering and indignity and that no-one else was affected by her wish for her husband to assist her, save for him and their family who were wholly supportive of her decision. Without such consideration of the facts of the case, the rights of the individual could not be protected. 

The applicant also disputed that there was any scope for allowing any margin of appreciation under Article 3 of the Convention, though if there was, the Government could not be entitled to rely on such a margin in defence of a statutory scheme operated in such a way as to involve no consideration of her concrete circumstances. 

The Government submitted that Article 3 was not engaged in this case. The primary obligation imposed by this provision was negative: the State must not inflict torture or inhuman or degrading treatment or punishment. The applicant's case
was based rather on alleged positive obligations. 

The Court's case-law indicated, that where positive obligations arose, they were not absolute but must be interpreted in such a way as not to impose an impossible or disproportionate burden on the authorities.

Even if Article 3 was engaged, it did not confer a legally enforceable right to die. In assessing the scope of any positive obligation, it was appropriate to have regard to the margin of appreciation properly afforded to the State in maintaining section 2 of the Suicide Act, 1961. 

The Government submitted that the prohibition on assisted suicide struck a fair balance between the rights of the individual and the interests of the community, in particular as it properly respected the sanctity of life and pursued a legitimate objective, namely protecting the vulnerable: the matter had been carefully considered over the years by the Criminal Law Revision Committee and the House of Lords Select Committee on Medical Ethics. There were powerful arguments and some evidence to suggest that legalising voluntary euthanasia led inevitably to the practice of involuntary euthanasia. The State had an interest in protecting the lives of the vulnerable, in which context they argued, that anyone contemplating suicide would necessarily be psychologically and emotionally vulnerable, even if they were physically fit while those with disabilities might be in a more precarious position as being unable effectively to communicate their views.

 There was furthermore, a general consensus in Council of Europe countries of assisted suicide and consensual killing being unlawful in all countries except the Netherlands. This consensus was reflected also in other jurisdictions outside Europe.

European Court
The Court regarded Article 3 of the Convention, together with Article 2, as one of the most fundamental provisions of the Convention and as enshrining core values of the democratic societies, making up the Council of Europe.

It stated that in contrast to the other provisions in the Convention, it is cast in absolute terms, without exception or proviso, or the possibility of derogation under Article 15 of the Convention.

The Court oncluded that no positive obligation arises under Article 3 of the Convention to require the respondent Government either to give an undertaking not to prosecute the applicant's husband if he assists her to commit suicide or to provide a lawful opportunity for any other form of assisted suicide. There has, accordingly, been no violation of this provision. 

Alleged Violation of Article 8 of the Convention
The applicant argued that, while the right to self-determination ran like a thread through the Convention as a whole, it was Article 8 in which that right was most explicitly recognised and guaranteed. It was clear that the right to self-determination encompassed the right to make decisions about one's body and what happened to it. 

She submitted that this included the right to choose when and how to die and that nothing could be more intimately connected to the manner in which a person conducted her life than the manner and timing of her death. It followed that the DPP's refusal to give an undertaking and the State's blanket ban on assisted suicide interfered with her rights under Article 8 § 1.

The applicant argued that the Government had failed to show that the interference was justified as no consideration had been given to her individual circumstances.

The Government argued that the rights under Article 8 were not engaged as the right to private life did not include a right to die. It covered the manner in which a person conducted her life, not the manner in which she departed from it.
Otherwise, the alleged right would extinguish the very benefit on which it was based. 

Even if they were wrong on this, any interference with rights under Article 8 would be fully justified. The State was entitled, within its margin of appreciation, to determine the extent to which individuals could consent to the infliction of injuries on themselves and so was even more clearly entitled to determine whether a person could consent to being killed.

European Court
The Court applicant, in this case, is prevented by law from exercising her choice to avoid what she considers will be an undignified and distressing end to her life. The Court is not prepared to exclude that this constitutes an interference with her right to respect for private life as guaranteed under Article 8 § 1 of the Convention. It considers below whether this interference conforms with the requirements of the second paragraph of Article 8 (Article 8 § 2).

An interference with the exercise of an Article 8 right will not be compatible with Article 8 § 2 unless it is "in accordance with the law", has an aim or aims that is or are legitimate under that paragraph and is "necessary in a democratic society" for the aforesaid aim or aims.

The Court found that the only issue arising from the arguments of the parties was the necessity of any interference, it being common ground that the restriction on assisted suicide in this case was imposed by law and in pursuit of the legitimate aim of safeguarding life and thereby protecting the rights of others.
"The Court does not consider therefore that the blanket nature of the ban on assisted suicide is disproportionate. The Government have stated that flexibility is provided for in individual cases by the fact that consent is needed from the DPP to bring a prosecution and by the fact that a maximum sentence is provided, allowing lesser penalties to be imposed as appropriate.

It does not appear to be arbitrary to the Court for the law to reflect the importance of the right to life, by prohibiting assisted suicide while providing for a system of enforcement and adjudication which allows due regard to be given in each particular case to the public interest in bringing a prosecution, as well as to the fair and proper requirements of retribution and deterrence. 

Nor, in the circumstances, is there anything disproportionate in the refusal of the DPP to give an advance undertaking that no prosecution would be brought against the applicant's husband. Strong arguments based on the rule of law could be raised against any claim by the executive to exempt individuals or classes of individuals from the operation of the law. In any event, the seriousness of the act for which immunity was claimed was such that the decision of the DPP to refuse the undertaking sought in the present case cannot be said to be arbitrary or unreasonable.
The Court concluded that the interference in this case may be justified as "necessary in a democratic society" for the protection of the rights of others and, accordingly, that there had been no violation of Article 8 of the Convention.

Alleged Violation of Article 9 of the Convention
The applicant submitted that Article 9 protected the right to freedom of thought which has hitherto included beliefs such as veganism and pacifism. In seeking the assistance of her husband to commit suicide, the applicant believed in and supported the notion of assisted suicide for herself. 

In refusing to give the undertaking, not to prosecute her husband, the DPP had interfered with this right as had the United
Kingdom in imposing a blanket ban which allowed no consideration of the applicant's individual circumstances. For the same reasons as applied under Article 8 of the Convention, that interference had not been justified under Article 9 § 2.

The Government disputed that any issue arose within the scope of this provision. Article 9 protected freedom of thought, conscience and religion and the manifestation of those beliefs and did not confer any general right on individuals to engage in any activities of their choosing in pursuance of whatever beliefs they may hold.

Alternatively, even if there was any restriction in terms of Article 9 § 1 of the Convention, such was justifiable under the second paragraph for the same reasons as set out in relation to Articles 3 and 8 of the Convention.

European Court
The Court stated that it did not doubt the firmness of the applicant's views concerning assisted suicide but observed that not all opinions or convictions constitute beliefs in the sense protected by Article 9 § 1 of the Convention. Her claims
did not involve a form of manifestation of a religion or belief, through worship, teaching, practice or observance as described in the second sentence of the first paragraph. 

"Practice" as employed in Article 9 § 1, does not cover each act which is motivated or influenced by a religion or belief. To the extent that the court believed the applicant's views reflected her commitment to the principle of personal autonomy, her claim was a restatement of the complaint raised under Article 8 of the Convention.

The Court concluded that there has been no violation of Article 9 of the Convention.

Alleged Violation of Article 14 of the Convention
The applicant submitted that she suffered from discrimination as a result of being treated in the same way as those whose situations were significantly different. Although the blanket ban on assisted suicide applied equally to all individuals, the effect of its application to her when she was so disabled that she could not end her life without assistance was discriminatory. She was prevented from exercising a right enjoyed by others who could end their lives without assistance because they were not prevented by any disability from doing so. 

She was therefore treated substantively differently and less favourably than those others. As the only justification offered by the Government for the blanket ban was the need to protect the vulnerable and as the applicant was not vulnerable or in need of protection, there was no reasonable or objective justification for this difference in treatment.

The Government argued that Article 14 of the Convention did not come into play as her complaints did not engage any of the substantive rights invoked by her. Alternatively, there was no discrimination as the applicant could not be regarded as
being in a relevantly similar situation to those who were able to take their own lives without assistance. 

Even assuming Article 14 was in issue, section 2(1) of the Suicide Act 1961, was not discriminatory as domestic law conferred no right to commit suicide and the policy of the law was firmly against suicide. The policy of the criminal law was to give weight to personal circumstances either at the stage of considering whether or not to prosecute or in the event of conviction, when penalty was to be considered. 

Furthermore, there was clear, reasonable and objective justification for any alleged difference in treatment, reference being made to the arguments advanced under Articles 3 and 8 of the Convention.

European Court
The Court had found above that the applicant's rights under Article 8 of the Convention were engaged (paragraphs 61-67). It therefore considered the applicant's complaints that she had been discriminated against in the enjoyment
of the rights guaranteed under that provision, in that domestic law permits able-bodied persons to commit suicide yet prevents an incapacitated person from receiving assistance in committing suicide.

There was, in the Court's view, objective and reasonable justification for not distinguishing in law between those who are and those who are not physically capable of committing suicide. Under Article 8 of the Convention, the Court found that there are sound reasons for not introducing into the law exceptions to cater for those who are deemed not to be vulnerable.

It decided that similar cogent reasons exist under Article 14 for not seeking to distinguish between those who are able and those who are unable to commit suicide, unaided. 
"The borderline between the two categories will often be a very fine one and to seek to build into the law an exemption for those judged to be incapable of committing suicide would seriously undermine the protection of life which the 1961 Act was intended to safeguard and greatly increase the risk of abuse."
Consequently, the Court found there had been no violation of Article 14 in the Pretty case.

For these reasons the Court:
  1. declared the application admissible;
  2. held that there had been no violation of Article 2 of the Convention
  3. held  that there had been no violation of Article 3 of the Convention
  4. held  that there had been no violation of Article 8 of the Convention
  5. held  that there had been no violation of Article 9 of the Convention
  6. held  that there had been no violation of Article 14 of the Convention
Transcript of the Court findings