With the second reading of Kim Leadbeater’s Terminally Ill Adults (End of Life) Bill fast approaching, debate persists as to whether limiting eligibility to terminally ill adults could be successfully challenged as discriminatory under Article 14 of the European Convention on Human Rights (ECHR) before the domestic courts and/or the European Court of Human Rights (ECtHR). This blog post does not seek to rehash well-trodden ground in this respect (see here, here and here for posts that discuss it in detail). Rather, it seeks only to contribute a comparative lens which indicates a potential basis upon which the UK Government could justify limiting assisted dying to the terminally ill. 

Clarifying the parameters of this debate 

As I noted in a previous post on this blog, in debates regarding the legalisation of assisted dying where there are myriad moral, religious and philosophical viewpoints, it is important to provide transparency as to an individual’s underlying position as this can have significant consequences for the nature and direction of the discussion. On that basis – and because the repeated references to my own work by opponents to Leadbeater’s Bill (see here and here) at least implicitly suggests I may be contradicting myself – I want to be very clear as to my own position. My view – based on almost a decade of research in this sphere – is that the prohibition on assisted dying in England and Wales (located in both the offence of murder and the prohibition on assisted suicide in s 2, Suicide Act 1961) violates Articles 2, 3 and 8 of the ECHR taken alone, or together with Article 14. I consider that the data from jurisdictions that permit assisted dying demonstrates that it ispossible to introduce an assisted dying regime and that this would better balance the rights of individuals vulnerable to undue pressure with the rights of capacitous individuals who wish to exercise choice over the manner and timing of their deaths. Further, I believe that an assisted dying regime should not be limited to the terminally ill but should extend to individuals who are suffering intolerably as a result of a grievous and irremediable medical condition, and it should include both voluntary active euthanasia and assisted suicide. 

But in this post, and in the others that the UKCLA blog has very helpfully facilitated, the issue is not what I (or others) think a system of assisted dying should look like. Rather, my previous post and this one respond to a contention made by opponents to Leadbeater’s Bill that there is a strong likelihood of a successful claim being made under Article 14 ECHR (presumably taken together with Article 8) that the Bill discriminates against individuals who are not terminally ill. Opponents suggest that such a finding would inevitably result in an expansion of the eligibility criteria – thus evidencing a ‘slippery slope’. This, they argue, means that the Bill should fail. For the reasons set out in my previous post and for the further reasons set out below, I think it unlikely that the ECtHR (and, the domestic courts following the approach set out in R (Elan-Cane) v Secretary of State for the Home Department [2021] UKSC 56) would find that the State’s justification for limiting eligibility as it has is unjustified. 

The potential of an Article 14 claim: lessons from the Antipodes 

As Philip Murray points out in his most recent post on this blog, one of the three questions that must be asked when deciding an Article 14 ECHR claim is whether there is “a difference in the treatment of persons in analogous, or relevantly similar, situations”. For the reasons I have set out previously, I consider that – for the purposes of an assisted dying bill that has no suffering criteria – it is at least arguable that individuals who are terminally ill with six months or less to live are not in an analogous, or relevantly similar, situation to those who are not terminally ill (particularly if we accept – as set out below – that the purpose of permitting assisted suicide per Leadbeater’s Bill is to allow a person to exercise a degree of control over the manner and timing of an otherwise imminent death). But as I also made clear in that post, even if we assume for argument’s sake that there is sufficient similarity for the purposes of the Bill between the terminally ill with six months or less to live and those who are not terminally ill, this does not dispose of an Article 14 claim. There is a further question that must be resolved when considering whether differential violates Article 14, namely whether the differential treatment has an ‘objective and reasonable justification’. Differential treatment will not have an objective and reasonable justification ‘if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised’ (Dániel Karsai v Hungary at [173]). 

Murray and I disagree on the likelihood of the ECtHR or, indeed, the domestic courts, finding that a State’s justifications for limiting assisted dying to those with a terminal illness with six months or less to live are not ‘reasonable and objective’ for the purposes of Article 14. Both of us must accept that our positions are necessarily speculative; the ECtHR has not directly considered a challenge to the assisted dying laws (statute or jurisprudential in origin) in other ECHR Contracting States (e.g. Belgium, the Netherlands, Luxembourg, Austria, Italy, Germany, Portugal, Spain or Switzerland) on the basis that they are discriminatory under Article 14 for excluding some individuals. I would suggest, however, that the Court’s recent judgment in Dániel Karsai is more persuasive in this respect than Murray permits. See, in particular, the Court’s observation at [148] that:

the Court considers that criteria such as incurable or terminal illness, which often feature in national laws on [physician assisted dying]  […] 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 [physical assisted dying] beyond a narrowly defined scope. (Emphasis added). 

In my view, this observation indicates that the Court is at the very least receptive to limited schemes of assisted dying. Murray may well reply, “but the Court here was not explicitly confronted with an Article 14 challenge in which it had to closely examine the justifications proffered for such a ‘narrowly defined scope’”. And that is true. However, the ECtHR in Dániel Karsai was clearly aware of the prospect of an assisted dying scheme being limited to certain individuals on the basis of their illness as it made repeated reference to this (and to the submissions of both the applicant and interveners to that effect) and it did not raise any concerns that such schemes would be discriminatory (see, for instance, [117], [122], [136], [142]-[144] and [148] as extracted above).  Indeed, the Court reiterated what it had said over two decades earlier in the landmark decision of Pretty v United Kingdom namely, that ‘It is primarily for States to assess the risk and the likely incidence of abuse if the general prohibition on assisted suicides were relaxed or if exceptions were to be created’ (at [74]) (Emphasis added)  

While the ECtHR has not itself squarely addressed the discrimination claim Murray raises, other jurisdictions with very similar assisted dying regimes to that proposed in Leadbeater’s Bill and with rights instruments that must be adhered to have. And the conclusions reached in those jurisdictions after carefully contemplating the question of whether limiting assisted dying to certain individuals is discriminatory are, in my view, illuminating.  

Given that Leadbeater’s Bill is explicitly said to be based on the approach taken to regulation in, inter alia, Australia, I have had regard to if – and if so, how –  States in Australia have addressed the potential discrimination of restricting assisted dying to the terminally ill. In Queensland, assisted dying is limited to adults with a condition that is advanced, progressive and will cause death and that death is expected within 12 months (there is also a suffering criterion – namely that the person’s illness is causing them suffering that the person considers to be intolerable). Prior to enactment, Queensland’s Voluntary Assisted Dying Act 2021 was subject to an extensive consultation (stretching over 12 weeks) by the State’s Law Reform Commission which subsequently published a report nearing 900 pages. The report considers in detail the concern that had been raised by a number of individuals and entities during the consultation, including the Parliamentary Committee charged with ascertaining ‘Queensland’s view on the desirability of a voluntary assisted dying scheme’, that life expectancy requirements were both discriminatory and difficult to assess in practice. Ultimately, the Commission concluded (based on its review of the process and impact of legalisation of assisted dying in Australia and throughout the world and of expert evidence from both opponents and proponents) that a life expectancy requirement was necessary because: 

A specific timeframe until expected death makes it clear that voluntary assisted dying is an option only for those who are at the end of life. It maintains the principle that voluntary assisted dying is not a choice between life and death but a choice for those who are dying to exercise some control over the timing and manner of their death. A specific timeframe gives clear guidance to the community and the health profession about who is eligible. (Emphasis added)

It bears noting that the Queensland Human Rights Act 2019 similarly protects the right to life and this was not an impediment to assisted dying being introduced, even though the purpose is to enable individuals to exercise some control over the timing and manner of a death that is imminent. I am unaware of any challenges to the life expectancy criteria under Queensland’s human rights legislation. 

More recently, the Australian Capital Territory (ACT) has introduced legislation legalising assisted dying. It, too, carefully considered the potentially discriminatory effect of limiting access based on a specific timeframe to death and determined that eligibility should be limited to adults who have been diagnosed with a condition that ‘is advanced [and] progressive’ which, either alone or together with an/other condition/s, is ‘expected to cause death’, and that (or those) condition/s are causing the individual to suffer intolerably (Voluntary Assisted Dying Act 2024 (ACT), ss 10 and 11). According to the Explanatory Statement, ‘Requiring that a person’s condition is both advanced and terminal provides flexibility for an assessing health professional, while ensuring that VAD is only an option for those near the end of life who wish for an end to intolerable suffering’ (emphasis added). 

It is, in my view, relevant to an assessment of the likelihood of a successful Article 14 ECHR challenge that two jurisdictions in Australia (which, together with New Zealand and the US, Leadbeater’s Bill is modelled upon) have closely examined the potential discriminatory effects of limiting access to assistance in dying to terminally ill individuals and have determined that such limitations can be justified on the basis that assisted dying is ‘not a choice between life and death but a choice for those who are dying to exercise some control over the timing and manner of their death’. I do not suggest that the findings in those jurisdictions are determinative but they do clearly indicate a potential justification for the Terminally Ill Adults (End of Life) Bill being limited to the terminally ill with six months or less to live – namely, the principle that voluntary assisted dying is not a choice between life and death but a choice for those who are dying to exercise some control over the timing and manner of their death – which has been found to be compatible with rights instruments that resemble the ECHR. 

Murray himself recognised that the UK Government could potentially rely on the same justification (namely, to enable individuals to exercise some control over the manner and timing of a death that is imminent) to defend limiting access to those terminally ill with six months or less to live. He argued, however, that such a claim was ‘unlikely to gain much traction, given the worrying implications it might have for other rights, most especially article 2’. I am not clear what Murray means here with respect to the ‘worrying implications’ such a contention might have for the right to life. Since Pretty v United Kingdom, the ECtHR has recognised that Article 8 ECHR protects the right to choose the manner and timing of one’s death. This has been reaffirmed on numerous occasions, including in Dániel Karsai. It is not apparent how a State permitting assisted suicide for those whose deaths are imminent so that they can exercise control over the manner and timing of their otherwise imminent deaths raises ‘worrying implications’ for other rights, especially Article 2. Neither Article 2 nor the common law right to life protect life for life’s sake (States are not obliged to keep people alive against their wishes) and both domestic courts and the ECtHR have recognised that concerns about quality of life, autonomy and self-determination are relevant when considering whether other end-of-life practices such as withdrawal/refusal of treatment are compatible with Article 2 (see, the Grand Chamber’s judgment in Lambert v France and the England and Wales High Court’s judgment in Re B). Indeed, we know from Mortier v Belgium (as reaffirmed in Dániel Karsai) that permitting assisted dying does not, per se, violate the State’s positive obligations under Article 2. It is difficult to see, then, how allowing assisted suicide for the terminally ill whose deaths are imminent (underpinned by the above-mentioned justification) has ‘worrying implications’ for Article 2, unless Murray is espousing an interpretation of Article 2 that creates an obligation to live akin to that proffered by Judge Wojtyczek in dissent in Dániel Karsai. Such a conceptualisation of Article 2 would be inconsistent with the stance long taken to the right to life by the ECtHR not only in its assisted dying jurisprudence but more generally in respect of end-of-life treatment. Indeed, it would raise questions about the lawfulness of States permitting the withdrawal/refusal of treatment, something which the Grand Chamber in Lambert v France clearly determined to be compatible with Article 2 (provided it is subject to sufficient safeguards). 

Conclusion 

Even if Kim Leadbeater’s Terminally Ill Adults (End of Life) Bill fails to pass its second reading on 29 November, the question of whether assisted dying should be decriminalised in England and Wales will undoubtedly persist. Debates surrounding reform are ongoing in Ireland and Scotland, and the process of decriminalisation and legalisation of forms of assisted dying is well underway in the Crown Dependencies. It seems, then, that it is a matter of when (and how), not if, assisted dying is legalised in England and Wales. Discussions surrounding who should be eligible are, then, not a wasted venture even if this Bill fails. This post has sought to meaningfully contribute to the ongoing discussion about eligibility criteria and potential discrimination by highlighting the findings of other jurisdictions which have considered these issues. I do not suggest that conclusions reached in other jurisdictions are determinative of the issue of whether differentiation such as that in Leadbeater’s Bill can be justified under Article 14. But I do think they are highly relevant. Particularly when they are reached after comprehensive consideration of extensive expert evidence (evidence which is being cited by both proponents and opponents of Leadbeater’s Bill). And especially when those jurisdictions have rights instruments that align with the ECHR, including the centrality of the right to life and the prohibition on discrimination (see, for example, sections 15 and 16 of Queensland’s Human Rights Act 2019and sections 9 and 8 of the ACT’s Human Rights Act 2004). Certainly, those experiences should be of interest to MPs as they consider the Bill on Friday. 

Dr Stevie Martin

(Suggested citation: S. Martin, ‘Differentiation in dying: Can limiting assisted suicide to the terminally ill be justified?’, U.K. Const. L. Blog (27th November 2024) (available at https://ukconstitutionallaw.org/))