Death by another's hand a 'slippery slope': The Diane Pretty case

One’s heart goes out to Diane Pretty. She has shown remarkable determination in trying to persuade the courts, in England and in Europe, to grant her a right to assisted suicide.

The judges, however sympathetic to her predicament, have unanimously rejected her claim. A cardinal reason was the likelihood of abuse. Concern about the "slippery slope" — from assisted suicide to voluntary euthanasia; from voluntary to non-voluntary euthanasia; and from euthanasia as a last resort to a "quick fix" — was a central theme of the courts’ reasoning.

The case arose after the Director of Public Prosecutions (DPP) refused Mrs Pretty’s request for an assurance that he would not prosecute her husband for assisting her to commit suicide. In proceedings for judicial review she sought an order that the DPP give the undertaking, or a declaration that the prohibition on assisted suicide was incompatible with the European Convention on Human Rights. The Divisional Court rejected her claim, and the law lords dismissed her appeal.

The law lords held that the DPP had no power to grant the undertaking. They also rejected Mrs Pretty’s claim that she enjoyed a right to assisted suicide under Articles 2, 3, 8, 9 and 14 of the European Convention on Human Rights. Last week Mrs Pretty’s appeal to the European Court of Human Rights was dismissed.

Mrs Pretty’s counsel argued that Article 2, protecting the right to life, protected the right to choose whether or not to go on living. The European Court ruled that Article 2 could not, without a distortion of language, be interpreted as conferring the diametrically opposite right. Nor could she avail herself of Article 3’s prohibition of inhuman or degrading treatment: the UK had not subjected her to any such treatment. Moreover, although her right to respect for her private and family life under Article 8(1) was engaged, the UK’s law was justified under Article 8(2) as necessary in a democratic society to safeguard the lives and rights of others.

The evidence did not show that Mrs Pretty was "vulnerable", but many terminally ill individuals were vulnerable, and it was their vulnerability as a class which provided the rationale for the UK’s blanket prohibition on assisted suicide. It was primarily for states to assess the risk of abuse. "Clear risks of abuse do exist," the Court observed, "notwithstanding arguments as to the possibility of safeguards and protective procedures." The UK’s complete ban was not therefore disproportionate. Nor did that prohibition breach her right to freedom of thought, conscience and religion, under Article 9, or her right not to suffer discrimination under Article 14. The European Court’s concern about abuse resonates with concerns expressed by the law lords. Lord Bingham of Cornhill, citing Dr Johnson, noted that "Laws are not made for particular cases but for men in general", and that "To permit a law to be modified at discretion is to leave the community without law". If the law allowed assisted suicide for the "non-vulnerable" it "could not be administered fairly and in a way which would command respect".

Lord Steyn noted the serious concerns recently expressed by the UN Human Rights Committee about The Netherlands, where voluntary euthanasia was declared lawful in 1984. The (undisputed) evidence from that country reveals that many thousands of patients have been euthanised without request and — belying the argument that permitting voluntary euthanasia "brings it out into the open" and subjects it to "control" — that most cases have in fact been illegally covered up by doctors as deaths by "natural causes". In recent years, Dutch courts have applied the argument which surely grounds the case for voluntary euthanasia — that certain patients are better off dead — to justify the administration of lethal injections to disabled babies.

Indeed, the risks of the "slippery slope" were evident in the logic of the argument deployed by Mrs Pretty’s counsel. If she indeed had a "right to self-determination in relation to issues of life and death" then, as Lord Bingham noted, this would extend to voluntary euthanasia for those too disabled to commit suicide. Indeed, why would the claimed right not extend to those who were neither disabled, dying nor suffering? The courts’ concerns about the dangers of stepping on to the slippery slope are echoed by expert committees which have evaluated and unanimously rejected the case for legalising even physician-assisted suicide. For example, all the members of the New York State Task Force, even those in favour of voluntary euthanasia in principle, opposed its legalisation as "unwise and dangerous public policy". The lawyer’s saying "hard cases make bad law" has arguably never been more apt. Mrs Pretty’s predicament may win hearts, but her arguments should not persuade minds, particularly when palliative care has made such strides in alleviating the suffering of those in her condition.